P MARY JACOB DIED Vs. A N VALLIAMMAI

JUDGEMENT

(1.) THE defendants in O. S. No. 364 of 1983 on the file of the District Munsif, Madurai are the appellants herein. The plaintiffs filed the suit O. S. No. 364 of 1983 for declaration of title and for consequential injunction in respect of the suit property in Survey No. 123/3 measuring one acre 75 cents.

(2.) ACCORDING to the plaintiffs, the suit property originally belonged to one Venkatasamy Naidu who had executed Ex. A1 sale deed dated 15. 06. 1923 in favour of one Janakiammal who in turn had executed Ex. A2 sale deed dated 28. 03. 1962 in favour of Valliyammai Achi the wife of Ramanathan Chettiar, who had no issues. Both valliammai and Ramanathan Chettiar adopted a son by name Alagappan. Ramanatha Chettiyar was leading a wayward life. To protect the suit property from Ramanathan Chettiar, Valliammai had executed Ex. A23 sale deed in favour of D1 in benami. No sale consideration passed under Ex. A3 sale deed and no possession was also handed over by Valliammai to D1 under Ex. A3. The original of Ex. A2 sale deed in the name of Valliammai was also with Valliammai and it was not handed over at the time of execution of Ex. A3 sale deed in favour of D1. On 08. 06. 1966, D1 had executed a consent letter Ex. A4 undertaking deed of re-transfer in favour of Valliammai in respect of the alleged benami sale effected under Ex. A3. Thereafter, the first defendant left for Bangalore with his family. Under such circumstances, Valliammai could not get a relinquishment deed from D1 in respect of the suit property. In lieu of Ex. A4, Valliammai had executed Ex. A16 deed of cancellation and Ex. A3 sale deed dated 06. 06. 1966 in favour of D1. On 16. 07. 1978, Valliammai had executed a Will in favour of her adopted son Alagappan in respect of the suit property. Patta was also transferred in the name of Alagappan. On 08. 01. 1981, Alagappan had executed Ex. A32 Gift deed in favour of the first plaintiff in respect of 55 cents and another gift deed under Ex. A33 in favour of the second plaintiff in respect of 60 cents and on 20. 08. 1981, the said Alagappan had executed another gift deed under Ex. A34 in favour of the third plaintiff in respect of 30 cents and on the same day, the said Alagappan had executed Ex. A35 gift deed in favour of the fourth plaintiff in respect of remaining 30 cents in the suit survey number property. Thereafter, patta has been transferred in the name of the plaintiffs 1 to 4 and they are in possession and enjoyment of the respective properties bequeathed under Exs. A32 to 35 respectively. The first defendant had executed a relinquishment deed in favour of the four plaintiffs on 18. 01. 1983 after receiving Rs. 30,000/ -. The plaintiffs have also prescribed title to the plaint schedule property by way of their long continuous uninterrupted possession. The first defendant had executed Exs. A47, 48, 49 and 50 (Originals Exs. B9, B10, B11 and B12) in favour of the defendants 2 to 5 in respect of the plaint schedule property. Hence, the plaintiffs have filed the suit for declaration of title and for permanent injunction.

(3.) THE first defendant has not filed any written statement. The defendants 2 to 5 have filed a joint written statement contending that the plaintiffs are not in possession of the suit property. Ex. A3 sale deed dated 06. 06. 1966 cannot be said to be a benami document as per Section 281 (A) of the Income Tax Act. Valliammai and Ramanathan Chettiar have not adopted Alagappan as their son. The allegation that to protect the suit property Valliammai executed Ex. A3 sale deed dated 06. 06. 1966 in favour of the first defendant in benami is not true. The first defendant had purchased the suit property for valuable consideration. Valliammai had also handed over possession of the suit property to the first defendant after the execution of Ex. A3 sale deed. Exa3 sale deed is a genuine document. Land tax have been paid for the suit property by Valliammai through the first defendant. There was no necessity for the first defendant to execute neither Ex. A4 nor Ex. A16. There was no relinquishment deed executed on 18. 01. 1983 by the first defendant after receiving Rs. 30,000/ -. The sale deed executed by the first defendant in favour of the defendants 2 to 5 under Exs. B9 to B12 are genuine documents since the defendants are in possession of the suit properties there is no need for them to interfere with the peaceful possession of the plaintiffs and hence the suit is liable to be dismissed.