V O C ARUMUGHAM PILLAI Vs. A ILANGO

JUDGEMENT

(1.) THE first plaintiff has preferred this second appeal, having failed in both the courts below in his suit for a declaration that the suit properties belonged to him alone and for an injunction restraining defendants 1 and 2 from interfering with his possession and enjoyment of the same. The appellant (first plaintiff) is the father, the second defendant is his eldest son, the first defendant is his second son, the second plaintiff and the third plaintiff being his third and fourth sons respectively. The suit properties originally belonged to the Zamindar of Ettayapurajn and formed part of his pannai lands. Items 2 and 3 of the plaint schedule, totalling an extent of 15. 62 acres of punja lands in Sinnur village, are covered by the sale deed Ex A. 8, dated 21-2-1956 executed by the Zamindar in favour of the first defendant that is, the second son for a stated consideration of Rs. 1,500/ -. The plaint-schedule first item is another 30 acres of punja lands in the said village and have been conveyed by the Zamindar for a consideration of Rs. 5000 under the deed of sale Ex. A. 5 dated 23-2-1958 in favour of the four sons, that is, plaintiffs 2 and 3 and defendants 1 and 2. It is the appellant's case that the sale deeds Ex. A. 5 and A. 8 were taken by his benami in the names of his sons for his exclusive benefit and use out of his own funds. He claimed that the suit items belonged to him absolutely and that the first defendant's attempt to alienate the properties and interfere with his possession and enjoyment necessitated the suit. The defendants denied the exclusive claim put forward by the appellant to the properties. The defence in the main was taken up by the second defendant, who pleaded that the properties belonged to the family as such and are not the individual absolute properties of the first plaintiff. The plea of benami acquisitions by the appellant for his sole and his exclusive use in the names of his sons was repudiated even as the appellant's claim of his exclusive possession and enjoyment of the suit properties.

(2.) AS in the context of the dispute the figuring of the other sons as plaintiffs looks somewhat intriguing, I may as well refer to certain features in this regard, which are brought out in the evidence. * * * * *

(3.) AS the contest emerged at the trial and is pressed before me, the question for decision in the case is, whether the two sale deeds are only benami for the appellant or they are purchases for the joint family of the appellant and his undivided sons. The question of benami is essentially one of fact and when the decision has been given on the merits, bearing in mind the well-established principles for the determination of the question of benami, the second appellate court has no jurisdiction to interfere in the matter. Now the trial Court, the District munsif, Koilpatti, on a consideration of the evidence has rejected the motive or reason for the benami put forward by the appellant The plaint did not set out specifically the reason for going in for a benami transaction. It was stated vaguely that for certain reasons the sales were taken benami. In the evidence it was trotted out that the sales were taken benami, apprehending land ceiling enactments. Another reason given for the benami was that as a Government servant, he did not want to take sales in his own name. The lower appellate1 Court concurred with the trial Court in rejecting the motive put forward for the benami. It is pointed out that a Government servant could purchase lands in his name with the permission of the Government and that he could have equally taken the lands in the name of his wife and daughters. No explanation was given by the appellant for not seeking the permission of the Government to make the purchases, if they were bona fide purchases. Admittedly in 1957, he had accepted a gift of 17 acres from the zamindar. He had not taken any prior permission from the Government to receive the gift. He would state in his evidence that he later intimated to the Government of the gift. According to the trial Court, the taking of documents in the name of the father and the sons probabilises more the case that the acquisitions were made to benefit the entire family and not merely the appellant. Learned counsel for the appellant attacked the reasoning of the Courts below for rejecting the motive put forward. I cannot say that the Courts below have gone egregiously wrong in their reasoning to call for interference with their finding in second appeal.