GUDURU RAMARAYUDU Vs. MALLELA MANIKYA RAO AND ORS.

JUDGEMENT

(1.) ONE Venkatrayudu who died in 1934, had a large family consisting of the plaintiffs 1, 2 and 3, the defendants 2 and 4, the deceased husband of the 3rd defendant and a daughter who was married to the 1st defendant, the appellant in the present case. In 1915, one of the sons of Venkatrayudu, the 4th defendant, became an insolvent and in February, 1919, the Official Receiver in the insolvency sold his i/7th share of the family properties partly to one Sivarama -krishnayya and partly to the appellant. Sivaramakrishnayya purchased the i/jth. share in certain items and the appellant purchased the i/7th share in other items. Together the two of them purchased the whole of the share of the insolvent son.

(2.) IN 1922, one of the purchasers Sivaramakrishnayya filed a suit O.S. No. 55 of 1922, on the file of the Subordinate Judge of Guntur, in which he prayed for a partition of the share of the insolvent and the allotment of the properties to the two purchasers, namely, Sivaramakrishnayya and the present appellant, after working out the equities between the several parties, or alternatively the plaint prayed for allotment of the proportionate amount of the insolvent's share to the plaintiff, i.e., Sivaramakrishnayya and his coparceners. There was also a prayer for mesne profits. The plaint alleged that the properties purchased in the name of the 1st defendant were purchased for the benefit of his father -in -law's family, but it was also averred that the two purchasers, namely, Sivaramakrishnayya and the appellnt, had together become purchasers of the entire 1/7th share of the insolvent and that the appellant not having joined in instituting the suit as he was colluding with the other defendants had been made a defendant. The appellant filed no written statement but it appears from the judgment that certain of the other defendants representing the family of the appellant's father -in -law did file written statements in which they made no averment regarding the nature of the title acquired by the appellant by reason of his purchase. In the course of the evidence, however, Venkatrayudu, the father -in -law of the appellant, stated in evidence that he did not advance the purchase money to his son -in -law. No issue was framed in the suit regarding the alleged benami character of the purchase by the appellant.

(3.) THIS litigation lasted up to June, 1934. Meanwhile, Sivaramakrishnayya had obtained a final decree, but nothing had been done by the present appellant in the direction of obtaining the final decree, to which the preliminary decree entitled him and he does not seem to have contested any of the appellate proceedings. In 1935, there was trouble in the family, one of the members of which obtained a decree on a promissory note against the present appellant. Thereafter the appellant filed I.A. No. 602 of 1937 in which he applied for a final decree for the possession of the properties to which he was entitled under the preliminary decree. In the counter -affidavits in these proceedings it was for the first time specifically averred on behalf of the members of Venkatrayudu's family that the appellant had purchased the insolvent's property benami for the benefit of that family with funds supplied by the family and was therefore not entitled to a final decree. This objection together with other contentions were considered by the learned Subordinate Judge in his order dated 25th August, 1942, on the application for a final decree. Paragraph 7 of that order summarised the contention that the appellant was a benamidar and therefore disentitled to a final decree for the possession of the lands held by the insolvent's family. The learned Subordinate Judge meets this objection in the following words: