KAMALAKANNAN Vs. ANJALAKSHMI

JUDGEMENT

(1.) HIS appeal is focused by the unsuccessful defendants as against the judgment and decree dated 24.12.1993 passed by the learned Principal District Judge, Pondicherry in O.S.No.1 of 1983, which was filed for obtaining the relief of getting the Court auction sale set aside and for other allied reliefs. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.

(2.) BROADLY but briefly, narratively but precisely, the case of the plaintiffs as stood exposited from the plaint could be portrayed thus:a) One Govindasamy, son of Appasamy, purchased the suit properties described in the schedule of the plaint from one Thangavelu Gounder vide the Notorial Sale deed dated 10.12.1936. The first plaintiff is the wife, the plaintiffs 2 to 4 are the children of deceased Govindasamy. The defendants 1 and 2 are the son and daughter of one Late Govindan son of Kalivaradan, who was the son-in-law of one Ramasamy Naicker. The said Govindasamy was related to Ramasamy Naicker as he was his first cousin. Govindasamy was looking after the family of Ramasamy Naicker, who subsequently died in the year 1949. Thereafter, the said Govindasamy became addicted to drinks whereupon at the request of the first plaintiff, Govindan the father of D1 and D2, was asked to manage Govindasamy-s properties as well as Ramasamy Naicker-s property. The said Govindan died in the year 1975.b) The suit house, which is described in the -B- Schedule of the plaint was leased out to 3 even during the life time of Govindan in the year 1975. D1-s mother was collecting rents from D3. Owing to bad blood started running in the relationship between the defendants- family and plaintiffs- family, Govindasamy started living with his family in one other mania described in the -A- schedule of the plaint situated on the northern side of the same road where -B- schedule of the properties is situated. The notice dated 5.11.1977 was issued by Govindasamy to first defendant-s grand mother Visalakshi and mother Kuppammai, calling upon them not to collect rent from D3 and also not to meddle with the suit property, which evoked a reply notice dated 22.11.1977 from them asserting title over the suit properties on the basis of a Court Auction Judgment dated 26.9.1955 as though the said Govindan purchased the suit properties in the. Court auction sale. In fact, the said Govindan was only a name lender for Govindasamy as it was Govindasamy, who made arrangements to bid in the Court auction sale, so as to prevent third parties from purchasing his suit properties consequentially Govindan did not make any payment and he had not taken steps to complete the obligations as an auction purchaser.c) The -A- Scheduled property was a vacant mania with a well. D3 was inducted into it as a tenant. Govindan was authorized by Govindasamy to collect the rents and after the death of Govindan in the year 1975, his wife and mother-in-law Visalakshi and Kuppammal respectively used to collect the rent and pay to Govindasamy till the year 1977. D1 came forward for a settlement during the year 1978 on behalf of his mother Kuppammal and himself requesting that D3 might be permitted to continue in the -B- Scheduled house and that D1 would pay the rent as a lessee and D3 would be a sub-lessee whereupon D1 was paying the rent of Rs. 300/- per month relating to the -A- and -B- scheduled properties till May 1995. Inasmuch as there was default, Govindasamy issued lawyer-s notice, for which, D1 gave untenable reply which necessitated Govindasamy to file HRCOP No. 31 of 1987 on 22.11.1987. However, D1 filed counter, claiming title based on the said auction judgment dated 26.9.1955 wherefore, the said HRCOP was withdrawn as not pressed by the plaintiffs, who are the legal representatives of Govindasamy, who died on 15.2.1987 intestate.d) D4 being a real estate dealer was inducted by D1 in the -A- Schedule property. D2 Jayakumari is the sister of D1 and she was shown in the party array, in view of the stand taken by D1 in the said HRCOP, as though there was a partition, which took place between D1 and D2 herein and that D2 got a share in it. D1 and D2 are trespassers in the suit properties as they did not have any manner of right. The Court auction sale did not fructify and in view of the same, Govindasamy continued to be the owner. Despite such Court acution judgment, Govindasamy resisted the original proceedings initialed by the brother of Thangavelu Gounder, who was the vendor of Govindasamy, challenging the sate in his favour. Hence, the plaintiffs filed the suit with the following prayer:-to set aside the decree and judgment dated 26.9.1955 and proceedings commenced there under as time barred and for the consequent relief of possession of the suit property jointly and severally from the defendants 1 to 4 through the process of this Honourable Court along with the prayer for mesne profits.

(3.) THE defendants filed additional written statement, the gist and kernel of it would run thus: THE suit to set aside the Court auction judgment dated 26.9.1955 is not tenable. As per Section 4(1) of the Benami Transactions (Prohibition) Act, 1988, no suit claiming to enforce such right pleading benami could be enforced. THE said Govindasamy was convicted by the erstwhile Criminal Court of Pondicherry for having committed forgery by selling the properties belonging to Ramasamy Naicker, the father-in-law of Govindan and so as to evade punishment, he proved himself a fugitive in the eye of law and was absconding. Neither Govindasamy nor the plaintiffs have been in possession of the suit properties after the Court auction sale.Accordingly, they prayed for the dismissal of the suit.