KAMAKSHI AMMAL AND ANR. Vs. M.C.A.R.S. CHOCKALINGA THEVAR FIRM, THROUGH MANAGING PARTNER M.C. SONAI THEVAR AND ORS.

JUDGEMENT

(1.) THE second appeal has been heard along with (Venkataswami Naidu v. Somammal and Anr. : (1969)2MLJ609 .

(2.) THE suit properties and another house property, the subject of dispute in (Venkatasami Naidu v. Somammal and Anr. : (1969)2MLJ609 , were purchased by Lakshmiammal mother of the plaintiffs, under two registered sale deeds. The mother died in 1938. The father of plaintiffs Guruswami Nadar executed two other deeds over the properties, one in l948 and another in 1953, in favour of Mahalinga Nadar, husband of the first plaintiff. The second plaintiff in the present suit, second appellant before me instituted O.S.No. 195 of 1957 on the file of the District Munsifs Court, Tirumangalam setting up title of the daughters, that is, the present plaintiffs, to the properties that were purchased in the name of their mother Lakshmiammal, and impugning the validity of the mortgage effected by their father. Mortgagee Mahalinga Nadar and their father Guruswami Nadar were parties to the suit. The second plaintiff claimed a half share in the properties by way of partition in assertion of her title. The trial Court decreed the suit on 12th July, 1958, and an appeal therefrom by Mahalinga Nadar was dismissed on 29th October, 1960. The second respondent in the second appeal had obtained a money decree against Guruswami Nadar in S.C. No. 266 of 1956 on the file of the Sub -Court, Madurai. After the death of Guruswami Nadar, the second respondent sought execution of the decree in E.P.No. 672 of 1960 against the suit properties as properties of the deceased judgment -debtor in the hands of the plaintiff and their brothers, the respondents 3 and 4 in the second appeal. The first respondent herein, for moneys due to him from Guruswami Nadar and one Nataraja Nadar, instituted S.C.No. 504 of 1959 on the file of the District Munsif Court, Tirumangalam, against the said Nataraja Nadar and the children of Guruswami Nadar, that is, the plaintiffs and respondents 3 and 4 herein. Having secured the decree, he sought execution of it against the suit properties in E.P.No. 158 of 1960. It transpires that in the execution proceedings in S.C. No. 504 of 1959 the plaintiffs were set ex parte. They filed a petition for setting aside the ex parte order and that was dismissed on 20th June, 1961. It is under these circumstances that the present suit was instituted by the plaintiffs on 21st August, 1961, for setting aside the attachment of the suit properties in execution proceedings in the two suits. They contended that the properties were not assets of the deceased Guruswami Nadar liable to be proceeded against in execution of the decree. In defence, on the merits, a plea of benami was set up. It was contended that the properties were purchased in the name of Lakshmiammal benami for Guruswami Nadar. There was a substantial plea that the suit was barred by res judicata. No plea was taken that Section 47, Civil Procedure Code, was a bar to the suit. The trial court accepted the plea of benami. It also held without any discussion that the plaintiffs are barred by the principle of constructive res judicata from claiming title to the suit properties. In the result, the suit was dismissed. On appeal, the learned Subordinate Judge rejected the plea of benami set up by the decree holders. However, he agreed with the trial Court that the suit was barred by the principle of constructive res judicata.

(3.) ON the merits, I see no reason to differ from the lower appellate Court. The question of benami is a pure question of fact. The ostensible owner is presumed to be the real owner and in the present case evidence is wholly wanting to rebut the presumption. On the other hand, there is a judicial determination that the properties belonged to Lakshmiammal and the plaintiffs have succeeded to the same on her death. The judgment in this regard may not be res judicata and cannot bind the present decree holders who are not parties to the suit. But it certainly recognises. the title the plaintiffs now assert. The inference of the learned Subordinate Judge that the properties did not belong to Guruswami Nadar, the debtor, is unimpeachable and has to stand.