P SRINIVASAN Vs. P GOPAL

JUDGEMENT

(1.) FIRST appeal filed against the judgment and decree dated 15.10.1993 made in O.S.No.776 of 1985 on the file of the Subordinate Judge, CoimbatoreI. Subject matter of litigation The appeal has been filed by defendants 1 and 2 in O.S.No.776 of 1985 on the file of Sub Court, Coimbatore. The suit has been filed by the respondents in the appeal to declare that Ex.B-27 - purchase of suit property standing in the name of the second defendant on 14.9.1985 was done by the first defendant in his wife's name, benami for the benefit of plaintiffs 1 & 2 and the first defendant as joint owners and for partition of the plaintiff's 2/3rd share and for the relief of injunction to restrain the defendants from interfering with their joint possession. II. Disposition at the trial court

(2.) THE trial court found the transaction to be not benami, but held that the document of purchase was fraudulent in the sense that the first defendant had instead of purchasing the property in the name of the family members, namely, the plaintiffs and the first defendant, had purchased the property in the name of his wife, the second defendant. THE plaintiffs, according to the trial Court, was therefore entitled to a 2/3rd share and granted the relief of partition as prayed for. THE trial Court also found that the earlier partition decree which had been passed with reference to a panchayat arrangement for division of the house property and the business run at the suit property has to be decreed in terms of the panchayat arrangement. THE Court however said that the decree passed by the Sub Court had not become final in the sense final decree had not been passed and therefore the suit was deemed to be still pending.III. THE main grounds of challenge in appeal

(3.) THE appellants contend that earlier the plaintiffs filed application I.A.No.235 of 1990 under Order 6 Rule 17 CPC to amend the plaint by withdrawing the averment as benami and the application had been originally dismissed. This was thought necessary perhaps by the fact that at that time the decision of the Supreme Court in Mithilesh Kumari v Prem Behai Khaul (1989) 2 SCC 95 held the field and the Benami Transactions Prohibition Act had a retrospective effect. Against the judgment of the trial Court in the interim application, the plaintiff/petitioner had filed CRP.No.2682/90 which was also dismissed by the High Court. THE plaintiff/petitioner went to Supreme Court in SLP.1067/91 and the Supreme Court also dismissed the petition with the following observation:" THE learned counsel for the petitioner however contend that in lieu of the observation in the impugned judgment, the petitioner may be seriously prejudiced at the time of final disposal of the suit. THE Court while deciding the suit at the final hearing is not bound by any observation made in the order disposing of an interlocutory application, the apprehension expressed on behalf of the petitioner is not well founded.".