KOVVURI SATYANARAYANAMURTHI Vs. TETALI PYDAYYA

JUDGEMENT

(1.) The other question as to the benami or fictitious nature of certain transactions having been, as I would show later, concluded by a finding of fact arrived at by the lower appellate Court the only real question to decide in this second appeal is whether Section 41 of the Transfer of Property Act and Section 115 of the Indian Evidence Act can afford any protection to the appellants-defendants 1 and 2 and if so, to what extent?

(2.) The plaintiffs and the defendants 4 and 5 in the suit out of which this appeal has arisen are the sons of one Kamaraju who died some years ago. Their mother, Sooramma figures as the third defendant in the present litigation. A sale deed in respect of item 1 out of the properties described in the plaint schedule was executed on the 12 April, 1910, in her favour (Ex. A). The second item in the plaint schedule is a seventeenth share in a rice mill while items 3 and 7 are houses and house sites purchased by the third defendant on the 22nd September, 1918, from her husband her husband Kamaraju acting for himself and on behalf of his minor sons plaintiffs 2 and 3 and defendant 4) and the first plaintiff (Ex. A-1). All the seven items were first of all mortgaged by Soorarmna, the 3 defendant, in favour of Venkayya (lather of the present defendants 1 and 2) for a sum of Rs. 4,000 on the 6 June, 1919 (Ex. X). This was discharged by the 17 August, 1931 and we are no longer concerned with it During the pendency of this mortgage, another mortgage was created by Sooramma in respect of the seven items of the property in favour of Venkayya, the previous mortgagee on the 11 June, 1921 (Ex. VI). This was for a sum of Rs. 12,000. It appears from this deed that the money was borrowed for purchasing certain properties evidenced by Ex. I, Ex. II, and Ex. XI, the properties so purchased having been also given as security along with the seven items covered by the first mortgage Ex. X. " ..

(3.) A suit was instituted by Venkayya during his lifetime on the basis of the mortgage deed (Ex. VI) in the Court of the Subordinate Judge of Rajahmundry (O. S. No. 43 of 1932). Venkayya died during the pendency of this suit and the defendants 1 and 2 were brought on record as his legal representatives. This suit was decreed. In execution of that decree, the seven items of the property mentioned above were sold and purchased by these defendants, through Court. But when they attempted to take possession, they were resisted by the plaintiffs and the defendants 4 and 5 on the ground that the properties were their joint family properties, that Ex. A was benami, that Ex. A-1 was fictitious and that their mother Sooramma had consequently no right to effect any valid mortgage in respect of those properties. As the execution Court was satisfied that the resistance was occasioned by the sons of Sooramma without any just cause, it directed the obstruction to be removed and the defendants 1 and 2 to be put into possession of the property purchased by them in execution. This led to the institution of the suit under Order 21, Rule 103, Civil Procedure Code. It was dismissed by the first Court but was decreed by the lower appellate Court in regard to item one of the property (covered by Ex. A) as the plaintiffs allegations in regard to the benami nature of the transaction were held to have been established. The defendants 1 and 2 (the decree-holders in O.S. No. 43 of 1932) have consequently preferred the present appeal in regard to that item of the property while the plaintiffs and the defendants 4 and 5 have filed cross-objections in regard to the other remaining items.