VENKATASWAMI NAIDU Vs. MUNIAPPA MUDALIAR

JUDGEMENT

(1.) The learned Additional District Judge of Salem, disagreeing with the decision of the District Munsif of Sankaridrug at Salem, held in A. S. No. 395 of 1943 out of which this second appeal arises, that, Ex. P-1, dated 26th December 1931, related to the purchase of the suit property in the name of the plaintiffs' vendor not as benami for defendant 1 but in order to enure for the benefit of the plaintiffs' vendor himself. Exhibit P-1 was a sale-deed for a consideration of Rs. 800 executed by one Muthuswami Konar in favour of one Duraiswami Naidu, by which the property mentioned therein was sold with absolute rights to the latter. On 7th June 1941, Duraiswami Naidu sold the property purchased under Ex. P-1 to the plaintiffs for a sum of Rs. 1500. On the strength of this purchase under Ex. p-12, the plaintiffs brought the suit for a declaration of their title to the suit house and possession of the same with damages for past use and occupation from the defendants. Defendant 1 who was the brother of defendants 2 and 3 contested the plaintiffs' claim on the ground that the purchase under Ex. P-1 was for his own benefit and that he paid the consideration for it though the document was taken in the name of Duraiswami Naidu as a benamidar. It was further contended that the thatched house which was standing on the property at the time of the purchase was destroyed by fire and defendant 1 built a new house with his own funds.

(2.) The trial Court found that the sale-deed, Ex. P-1 was taken by defendant 1 for his own benefit in Duraiswami Naidu's name as benamidar. It was also held that defendant 1 was not a lessee of Doraiswami Naidu. There was a further decision that the tiled house built on the property was constructed by defendant 1 with his own funds and that the plaintiffs were not bona fide purchasers for value of the house without notice of defendant 1's title. The learned District Munsif discussed the entire oral and documentary evidence at great length before he arrived at the findings adverted to by me above. The result of these findings was that the suit was dismissed. On appeal, the learned Additional District Judge came to a somewhat different conclusion on some of the points in controversy. The result of the learned Judge's conclusion was that the house was built by defendant 1 with his own funds but that Ex. P- 1 was a sale-deed in favour of Doraiswami Naidu effected with Duraiswami Naidu's own funds and with the intention that the title should vest in Duraiswami Naidu alone. The learned Judge found that defendant 1's case that he paid Rs. 500 of the purchase price and that Duraiswami Naidu (P. W. 1) advanced only the balance of Rs. 300 was false. At the end of para. 4 of his judgment, the learned District Judge observes that Duraiswami Naidu, P. W. 1, purchased the property at the instance of defendant 1 and for the purpose of providing him with a residence. It was defendant 1 who negotiated the transaction and it was he who actually paid the money into the hands of D. W. 1, the vendor under EX. P-1. The effect of his finding is that Duraiswami Naidu wanted to provide a residence for defendant 1 and with that object, and at the instance and request of defendant 1 he purchased the property in question with monies belonging to himself. The learned Judge thereafter discussed the evidence in relation to the construction Page 2 of 7 Venkataswami Naidu and Anr. vs. Muniappa Mudaliar and Ors. (18.04.1949 - MADH... 6/19/2007 of the existing house on the property and agreed with the District Munsif that it was defendant 1 who put up a building spending his own monies and all the while Duraiswami Naidu, P. W. 1, kept quite like disinterested spectator and did not step in to claim his rights. At the end of para. 6 the learned Judge observes as follows :

(3.) The learned District Judge was not alive to the position thus created to the fullest extent, and in his opinion it was a case of implied contract to pay the value of the structure by Duraiswami Naidu to defendant 1. I do not think that his findings justify that legal conception. There was no contract to pay the value of the structure bat what was impliedly understood was that if defendant 1 paid the cost price of the land with interest thereon to Duraiswami Naidu, the land would become defendans 1's own property. Therefore, the learned Judge's view that the plaintiffs, as successors to the rights of Duraiswami Naidu, should pay defendant 1 the value of the structure on the latter surrendering the property with the house thereon cannot be justified. It seems to me that in a state of things like this the plaintiffs are not entitled to possession at all. The utmost they are entitled to is that defendant 1 should pay the cost of the site which Duraiswami Naidu had to pay to the vendor under Ex. P-1, with interest thereon.