RANGAPPA NAYAKAR Vs. RANGASWAMI NAYAKAR

JUDGEMENT

(1.) The facts relating to this appeal may be set out very briefly. One Gopal Nayak died in the year 1900, leaving him surviving no son but only his daughter, one Kuppammal, and grandson by that daughter, one Ganga Nayak. That he left a Will seems undisputed, but the terms of this will are in dispute. Soon after the death of Gopal Nayak, his daughter Kuppammal and grandson Ganga Nayak began alienating various items of property pertaining to his estate. Exhibits C series and D series and 24, 34 series and 35, are all deeds of hypothecation or sale so made in the years 1901 and 1902. By a registered instrument marked F in the case, Kuppammal and Ganga Nayak purported to sell and convey to one Govindappa Nayak all the items of immovable property set out in Schedules 1 and 2 to the plaint. It also appears that some time after the death of Gopal Nayak, his daughter and grandson applied for succession certificate to the District Court of Tinnevelly and that the petition was opposed by or on behalf of the defendants on the ground that the deceased Gopal Nayak was undivided from his brother and nephews, and that all the property of the family having survived on his death to his brother and nephews he had no power of testamentary disposition over any of the properties, the subject-matter of the suit. These proceedings, however, were compromised finally by documents Exhibits A and B (Exhibits B being in form a deed of sale by Kuppammal and Ganga Nayak to the defendants of the properties which are under compromise agreed to be given over to them, and Exhibit A being a release andconveyance by the defendants in favour of Kuppammal and Ganga Nayak of all the other properties relating to the estate of Gopal Nayak). Early in the year 1917, both Kuppammal and Ganga Nayak died within a few days of each other, and, the question who died earlier is one for determination, Ganga Nayak died issueleas leaving only his widow Ovalammal who purported by a registered instrument bearing date the 2nd day of August, 1917, Exhibit G, to sell and convey to the plaintiff-appellant all the properties set out in the sons. 1, 2 and 3 to the plaint. The plaintiff's action is substantially for the recovery of these properties from the defendants.

(2.) The plaintiff's case is that Kuppammal and Ganga Nayak obtained these properties under the Will of Gopal Nayak, that Ganga Nayak was absolutely entitled thereto or at any rate became so after the death of Kuppammal and that therefore on his death Ovalammal, the plaintiff's vendor, inherited the properties and conveyed them to the plaintiff. No question arises now with regard to the capacity of Ovalammal as a Hindu widow to sell and convey the properties, the subject-matter of the suit because she is still alive, and if she was entitled to the properties, any alienation by her would be valid for her lifetime. The action is resisted by the main defendants who are the brother's sons of the deceased testator Gopal Nayak on the ground, firstly, that the sale to the plaintiff was only a benami transaction and that therefore the plaintiff was not entitled to maintain the suit, and secondly on the ground that as regards the properties in Schs. 1 and 2 to the plaint, the same having passed to Govindappa Nayak on the sale under Exhibit F, have been purchased by them under Exhibit VIII, dated 14 August, 1917, from Govindappa Nayak, and that as regards items 4 to 10 in Soh. 3 the same were never the properties of Gopal Nayak, but have all along been the properties of the defendants, and that as regards items 1 to 3, Schesule 3 to the plaint, Ovalammal never succeeded thereto because her husband Ganga Nayak, as a matter of fact predeceased his mother Kuppammal, and that therefore on the death of Kuppammal the property should be deemed to have reverted to the testator Gopal Nayak and become vested in his reversionary heirs, the defendants. As many as 21 issues were raised in the case and though the learned Subordinate Judge found most of the issues in favour of the plaintiff, he finally dismissed the plaintiff's suit on the ground that the sale to him by Ovalammal under Exhibit G was only, a benami sale, that there was no consideration the same and that therefore the plaintiff was not entitled to maintain the suit.

(3.) The law with regard to the maintainability of suits at the instance of benamidars has been finally settled and set at rest by their Lordships of the Judicial Committee in the case of Gur Narayan V/s. Sheolal Singh A.I.R. 1918 P.C. 140, and followed by a Full Bench of this Court in Vaitheswarah Aiyyar V/s. Srinivasa Raghava Aiyyangar (1919) 42 Mad. 348, It has there been held that a true benamidar, that is a person who has merely lent his name to the transaction and is therefore a trustee holding a legal title without any beneficial interest in the property, can maintain a suit in his own name against at any rate all persons except the persons beneficially entitled.