SULUGU SURYANARAYANA NAYAKARAM Vs. GUNDABOLU BUTCHAIAH NAIDU

JUDGEMENT

(1.) The plaintiff and the 4th defendant are brothers, the plaintiff being the older of the two. It appears that while the 4th defendant was absent in Hyderabad, the plaintiff effected a sale of a half share of certain lands, which included his own share and his brother s share, to the 2nd defendant, who is his brother-in-law and the son of the 1st defendant. At that time, the plaintiff, who had just attained majority, was living with his father-in-law and his brother-in- law. This was in 1900. In 1906 there was a partition of the property between the 4th defendant and the plaintiff, and in that partition, the share of the property sold to the 2nd defendant was excluded, that is to say, the 4th defendant was deprived of his share in the property in question. It appears that the 4th defendant afterwards discovered that the sale to the 2nd defendant by the plaintiff was a colourable and benami transaction, the object of which was to deprive the 4th defendant of his share, and he instituted a suit in 1911 to recover the property from the 2nd defendant. The plaintiff was also a party to that suit. He obtained a decree and recovered his share, it being found that the sale was a colourable transaction there being no consideration and having been effected with the object of depriving the 4th defendant of his share. While that suit was pending, the plaintiff instituted the present suit to recover his share on the same state of facts as pleaded by the 4th defendant in the suit in which he was the plaintiff. The fourth defendant got a decree in his suit. The question now is whether the plaintiff ought to be allowed to recover his share of the property from the 2nd defendant. The learned District Judge has held that he cannot succeed inasmuch as he was guilty of fraud in effecting the sale and his fraudulent purpose has been accomplished. It is argued, in the first place, on behalf of the appellant that the first part of the first issue has not been tried and until that is tried the question whether the plaintiff is entitled to recover or not, cannot be properly decided, The first part of the issue in question is whether the sale-deed executed by the plaintiff to the 2nd defendant was brought about by undue influence and misrepresentation of his father-in-law, first defendant in the suit. It is quite true that at the time of the sale; he had just attained majority and he was living with his father-in-law. But beyond these two facts there is nothing else to suggest on the evidence, so far as it has been brought to our notice, that there was really any undue influence.

(2.) Further, when the partition was effected in pursuance of the fraud, it is not alleged anywhere that he was still under undue influence of his father-in-law. This was in 1906. No evidence was adduced to show that the plaintiff continued to be under the influence of his father-in-law, even supposing that he was under such influence at the time of the execution of the deed of sale. Having regard to the evidence in the case and the nature of the pleadings, I do not think any useful purpose will be served by calling for a finding on the point.

(3.) Then remains the question of law which amounts to this: whether upon the facts of the case, it can be said that the fraud contemplated by the plaintiff was accomplished, either wholly or partly. If it was, there can be no doubt but that he is debarred by law from recovering the property. What is the object which the plaintiff had when he executed the deed of sale? It was to exclude this property from partition and thereby deprive the 4th defendant of his share. Therefore, when the partition was effected and the property was excluded from that partition, prima facie that object was fully carried out. I am rather inclined to think that the object was carried out even at an earlier stage when possession was given in pursuance of the deed of sale. However that may be, there can be little doubt that the object was fully carried out when partition was effected and this property was not included in the partition.