THANGAMMAL (DIED) AND ORS Vs. NARIAMMA AND ORS

JUDGEMENT

(1.) The controversy in these second appeals stems out of rival claims put forth by the parties for title to an extent of acres 7.30 in S. No. 1575 in Kunnathur village, Vilavancode Taluk. Originally the suit property belonged to one Kesava Pillai Kumara Pillai. There was a sale by Kesava Pillai Kumara Pillai in favour of Cherian Nadan Mathavan Nadan on 20.4.1101 (M.E.) Kesava Pillai Kumara Pillai filed O.S. No. 43 of 1102 (M.E.) on the file of the District Court of Nagercoil praying for cancellation of the sale in respect of the suit property, for declaration of his title thereto and for other reliefs. His case was there was no agreement or intention to convey the suit property to the vendee Cherian Nadan Mathavan Nadan and the suit property was included in the sale deed on account of fraud perpetrated on him. That suit got disposed of on 19.2.1105 (M.E.) corresponding to 5th October, 1929 and Kesava Pillai Kumara Pillai was accorded a decree for declaration that the suit property was not conveyed by him under the sale deed concerned and he was entitled to it. The copy of the judgment has been marked as Ex.A.4. The vendee Cherian Nadan Mathavan Nadan preferred an appeal A.S. No. 303 of 1105 (M.E.) to the High Court of Travancore, and while the appeal was pending, a compromise was entered into between the parties and this compromise is reflected in the copy of the decree, dated 16.4.1112 (M.E.) corresponding to 1.12.1936, marked as Ex.A.6. The salient terms of the compromise are set out in paragraphs 1 to 7 of ExA.6 and they stand extracted as follows:

(2.) There is yet another angle from which the tenability of the claim of the appellants could be tested. Their claim rests on a theory of benami also. The suit property was brought to court auction sale by a creditor of Kesava Pillai Kumara Pillai and it was purchased by one Chinniyan Asari. The appellants claim that Chinniyan Asari was only a benamidar for Kumaravelu Nadar, who was the predecessor-in-title of the present appellants, and who was prosecuting the litigation before the first Court. This plea of benami could no longer be prosecuted in view of the provisions of Benami Transactions (Prohibition) Act 45 of 1988, hereinafter referred to as the Act. The position would not stand altered merely because the matter is at the second appellate stage, the courts below having rendered their decisions on the question one way or the other. The legal position under the Act has been taken note of by me in a recent pronouncement in Minor Habir Rahman and three Ors. v. Ramu Pandaram S.A. No. 551 of 1981, judgment dated 17.3.1980. This also disables the appellants from claiming any title as they did from this angle. The result is the second appeals directed against the decisions of the two courts below deserve dismissal and they are accordingly dismissed. I make no order as to costs. The memorandum of Cross-Objection in S.A. No. 1236 of 1980 is also dismissed in view of the dismissal of the second appeals. There will be no order as to costs.