PAREPALLI VENKATA KRISHNAYYA Vs. CHAKKA VENKATARATNAM

JUDGEMENT

(1.) This is an appeal by the second defendant, the first defendant (his father) having died during the pendency of the suit in the trial Court. The plaintiff claimed the suit house and site as a pur-(Sic) 8, 1920, from one Ramanayya. The plaint alleged that the plaintiffs tenants were won over by the defendants and the cause of action was stated to have arisen on March 15, 1924, when the defendants unjustly entered upon the suit property and denied the plaintiffs right thereto. It ought to be mentioned that the plaintiff was the brother of the first defendant's wife who died some months after the date of Ex. A. A plaintiff could not produce the original of the sale-deed in his favour or of the sale-deed in favour of his vendor, who in turn had a sale-deed from the defendants (vide Ex. IV) dated May 12, 1908). Both the original documents have been produced by the defendant.

(2.) The first issue in the case raised the question whether the sale-deed in favour of the plaintiff was executed benami for the benefit of defendants one and two. The Courts below were of opinion that this issue did not arise on the pleadings. But in para. 8, of the lower Appellate Court's judgment, that Court made some observations upon this point. I was not prepared graph as amounting to a finding given on the first issue, when the Court started with the observation that the issue did not merit any consideration. I accordingly called for a finding upon that question and the lower Appellate Court, after full discussion of the evidence and the probabilities of the case, has now returned a finding that both the sales under Ex. IV and V were benami transactions and that Ex. V was executed for the benefit of defendants Nos. 1 and 2. I fully agree with that finding and accept it.

(3.) With reference to a contention raised on behalf of the plaintiff in the course of argument both here and in the Courts below--though not made an issue in the case--it has been found that Ex. IV, was executed with the object of defeating a creditor of the defendants, by name Pichayya, who had obtained an instalment decree in O.S. No. 26 of 1905 for a large sum of money against the defendants and that on the strength of Ex. IV the transferee defeated Pichayya's attempt to attach the properties now in question. As is only natural, the claim proceedings were practically conducted by the 1 defendant himself, though in the vendee's name. A sum of money to meet one instalment of the decree would appear to have been paid into Court by the first defendant through the decree-holder in part satisfaction. The claim order (dated October 13, 1914) said the title having passed by the registered sale-deed to the petitioner, it is for the attaching creditor to avoid it in a regular suit. No such suit was filed, and the evidence does not establish whether any and what further payments were made to Pichayya. The second defendant as D.W. No. 1, has given inconsistent answers as to whether that decree has been satisfied or not.