AMIRTHATHAMMAL Vs. PERIASAMI PILLAI

JUDGEMENT

(1.) This is a suit to recover possession of land. In 1897 the plaintiff, a Hindu widow, executed and registered a sale-deed of the land in question to her nephew. She retained possession of the deed but the nephew had notice of its execution and the tenant of the land in question attorned to him. The nephew died in 1901 and after his death, the plaintiff got the tenant to attorn to him. A few months later the nephew's mother and heir sold the land to the defendant.

(2.) The deed executed by the plaintiff purports to be an out and out sale to the nephew. The plaintiff states in her plaint that she executed the sale-deed with the object that the defendant (who is the nearest reversioner of the plaintiff's husband) should not obtain the property after her death. The District Judge finds that there was no consideration for the sale-deed by the plaintiff to the nephew. But that there was consideration for the sale by the nephew's mother to the defendant. He also finds that the plaintiff intended to give a title after her death though not in her life-time, in other words, that she only intended that the deed should be operative in the event of her nephew outliving her.

(3.) I think that the deed operated to convey to the nephew, the title which it purported to convey and that the plaintiff cannot be heard to say that she intended that title should not pass if the nephew predeceased her. If the parties intended title to pass, the fact that no consideration was paid, does not prevent title form passing Chinnasawmi Reddiar V/s. Krishna Reddy 16 M.L.J. 146. It may be that the plaintiff when she executed the deed did not contemplate the contingency of her nephew predeceasing her, but this, of course, does not prevent the title passing. It seems to me that the present case is distinguishable from the class of cases of which Yaramati Krishnayya V/s. Chundru Papayya 20 M. 326 is an example, where the Courts held that the transaction was a sham and it was not intended that any title should pass. Here the finding is that the plaintiff intended that some title should pass though not the title which the deed purported to convey. Applying the test laid down in Ranga Ayyar V/s. Srinivasa Ayyangar 21 M. 56 I do not think it can be said that in the present case both parties had it in their minds that the deed should be a mere sham. Ramalinga Mudali V/s. Ayyadorai Nainar 28 M. 124; 14 M.L.J. 493 seems to me to be clearly distinguishable from the present case. There the Court held that the sale-deed was inoperative on the ground that both parties intended that the transfer should be effected only on the marriage of the vendor to the vendee's daughter, and the marriage never took place.