M JAYAIAKSHMI ANIMAL Vs. LAKSHMI ANIMAL

JUDGEMENT

(1.) THE plaintiffs, who were successful in part in their suit in O.S.N0. 595 of 1973, in so far as they obtained a decree for declaration, possession only with respect of item 2 and not with reference to item 1, and who were also unsuccessful in Appeal No.56 of 1976, have come up by way of this Letters Patent Appeal.

(2.) THE facts lie in a short compass. THEre was one Govinda Konar, who had two wives Marimuthammal and Lakshmi Animal. THE plaintiffs 1 and 2 are the daughters of Govinda Konar through Mari-muthammal the first wife. Defendants 2 and 3 are the sons of Govinda Konar through his second wife, Lakshmi Ammal, the 1st defendant in the suit. Govinda Konar died on 25.8.1965. Shortly thereafter, i.e. sometime in September, 1965, Marimuthammal also died. Lakshmi Ammal, the 1st defendant, was married to Govinda Konar in 1944. Two properties were purchased by Govinda Konar in the name of Marimuthammal, his first wife, under Ex.B-2 dated 15.10.1943 and under Ex.B-3 dated 20.6.1947. We may also at this stage state that Govinda Konar had attested Ex.B-2 sale deed. In March, 1963, Govinda Konar executed a Will. Ex.B=48 appears to be a draft, though it is called an unregistered will and later under Ex.B-49 dated 16.4.1963. In that registered will, he made a statement to the effect that not only these two properties, viz,, the properties purchased under Exs.B-2 and B-3, but also another property purchased in the name of Lakshmi Ammal, the 1st defendant (second wife of Govinda Konar) were purchased benami and the persons, in whose names the sale deeds stand, were mere namelenders and thereafter he proceeded to bequeath the properties in a manner he considered best in the said will, Ex.B-49. Consequent to this, a cloud had come to be cast and therefore, O.S.No.595 of 1973 was filed for a declaration, possession and past profits, etc., by the plaintiffs, viz., the daughters through his first wife, Marimuthammal stating that these two properties were purchased by Govinda Konar when he wanted to take a second wife and when plaintiffs- mother, Marimuthammal insisted that some provision should be made for her maintenance. According to her request, both these properties were purchased. Inasmuch as the ostensible title stands in the name of their mother, Marimuthammal, they alone will be entitled to the said properties to the exclusion of the defendants.

(3.) THE learned trial Judge, on a consideration of the entire case, came to the conclusion that the statement made by Govinda Konar himself under Ex.B-49 gave a direct lead that they were benami purchases, that in so far as item 2 of the suit properties is concerned, it having been bequeathed in favour of the plaintiffs, they will be entitled to a decree for declaration, and possession as well as mesne profits.