M RUDRAPPA Vs. K MARIAPPA AND ORS

JUDGEMENT

(1.) The 3rd defendant is the appellant. The plaintiff s suit was substantially for a declaration of the rights of plaintiffs Nos. 1 to 4 to the plaint lands and also for delivery of possession." During the pendency of the suit plaintiffs Nos. 1 to 4 sold their rights to plaintiffs Nos. 5 and 6. According to the plaintiffs, the suit property originally belonged to the members of the Racheyla family and it was purchased by the father of plaintiffs Nos. 1 to 4 one Hampayya of Idukal on the 3rd of September 1912 under Ex. A. The case of the defendants is that the property belonged to the family of Ponpayya and Mallayya, that they took a sale-deed of it from the Racherla family in the name of Mallayya s father-in-law, Harupyya of Idukal, that it was a mere benami transaction, that Pompayya and Mallayya were always inpossession, that thelandsnowbelong to defendants Nos. 4 and 5 the children of Pompayya and Mallayya, and that the lands are now being held by the 2nd defendant on a lease given to him by the first defendant as the guardian of the 4th defendant. The 3rd defendant supported the plea of defendants Nos. 1 to 4 and also stated that the present suit is not maintainable on account of the order passed in O.S. No. 531 of 1918 on the file of the District Munsif s Court of Bellary.

(2.) Three questions were argued before me (1) that the purchase by Hampayya of Idukal, the father-in-law of Mallayya was a benami transaction; (2) that defendants Nos. 4 and 5 are owners of the suit lands by adverse possession and (3) that the present suit is not maintainable.

(3.) The first question, viz., the benami character of the sale to Hampayya, is a question of fact. Both the lower Courts have found that Ex. A evidenced a real transaction and conveyed title to the property to the father of plaintiffs Nos. 1 to 4. This finding is attacked by the learned Advocate-General on behalf of the appellant. Exhibit A, the sale-deed, recites that the plaint lands were orally sold to Hampayya for Rs. 800 in 1903, and put in Hampayya s possession and that as no proper sale-deed was executed till then, Ex. A was executed and delivered to Hampayya. According to the evidence in the case, out of the consideration of Rs. 800, Rs. 400 was paid in cash for the rest a promissory-note, Ex. C, was executed. This was renewed by Exs. D and E, and when the whole amount was paid, the sale-deed Ex. A was executed in favour of Hampayya. In attacking the finding that the sale to Hampapya was not a benami transaction, the learned Advocate-General mainly relies upon Exs. XLV and XLV (a) 1, extracts from the account-books of the Racherla family relating to the transaction of Hampayya s son-in-law, Mallayya, and his elder brother Pompayya. These accounts show that originally the idea was to sell the plaint lands to Pompayya and Mallayya for Rs. 650, that along with this sum the whole amount due to the Racherla people came to Rs. 1,030 in 1903, of this Rs. 230 was-excused and the consideration was fixed at Rs. 800, half of which, viz.,. Rs. 400 was paid by Hampayya and for the remaining sum he gave Ex. C. Both the lower Courts have found that there is really no reason to suppose that the payments were made by Hampayya on behalf of Pompayya and Mallayya. Though originally the idea might have been to sell the property in their favour, as they were not able to find consideration. Mallayya s father-in-law must be taken to have purchased the property for himself. This is the view taken by both of the lower Courts on an examination of the evidence in the case. Pompayya and Mallayya were in possession of the lands for a considerable number of years; but it must be remembered that Mallayya was the son-in-law of Hampayya. The conclusion that Ex. A evidenced a real transaction in favour of the plaintiffs Nos. 1 to 4 is based upon the evidence in the case and I cannot say that that conclusion is not warranted by the facts.