(BETHU) VENKATARATNAM Vs. (SATNAM) VENKATASWAMI

JUDGEMENT

(1.) Suit to eject the defendants and to recover Rs. 600 being the value of 100 bags of paddy for past rent and for future mesne profits, on the basis of a Kadapa executed by the defendants in favour of Veerasami, the power-of-attorney-holder of plaintiffs father. The defence was that the kadapa Ex. B represented only a nominal transaction. The second issue raised in the case was whether the suit lease was nominal, and the third issue-whether such a defence was open to the defendants. Now it is necessary to state the case of the parties with some more details. The case of the plaintiffs was that their father purchased the suit lands from the defendants under Ex. A on 26 September 1919, for Rs. 2,000 that he was in possession of the properties, and that he delivered possession to the defendants when Ex. B was executed by them on 20(.h June 1922. The case of the defendants was that Ex. A the sale-deed, was a nominal transaction, that the lands mentioned in Ex. A were worth about Rs. 25,000 that the defendants had urgent necessity for Rs. 2,000 and so executed Ex. A, the understanding being that the plaintiffs father should lend Rs. 2,000 to pay off urgent debts of the defendants, and that as soon as Rs. 2,000 together with 12 per cent interest thereon was paid, the plaintiffs father was to re-convey the lands to the defendants, that the suit land was always in the possession of the defendants, that the amount had been paid to the plaintiffs father,: and that Ex. B, was executed nominally to protect the properties from the Zamindar of Uyyur to whom the defendants: owed money.

(2.) The trial Court framed issue (1) with reference to the agreement relied on by the defendants. After discussing the oral evidence of witnesses and after considering the documentary evidence and the circumstances the trial Court came to the conclusion that Ex. A, was a nominal transaction. With reference to Ex. 1 the kararnama executed by the plaintiff's father in favour of the defendants on the same date as Ex. A, the trial Court held that it was admissible in evidence. It found issues 1 to 3 for the defendants, and in the result it dismissed the suit.

(3.) On plaintiffs appeal, the lower appellate Court having regard to the circumstance that the defendants admitted that Rs. 2,000 had been paid by the plain-tiffs father to clear off the defendants debts, was of opinion that Ex. A could not be said to be a nominal transaction. With reference to Ex. A, the learned Subordinate Judge observed as follows: The recital in Ex. A, shows that the plaint lands have been put in the possession of the plaintiff's father. Ex. (1) also shows the same. Ex. B, shows that the lands have been in the possession of the plaintiff's father since the date of Ex. A. It is thus clear that the plaintiffs father was in possession of the lands from the date of Ex. A, to the date of Ex. B. Hence plaintiffs father had enough interest in the plaint lands to grant a lease to the defendants under Ex. B. The argument of the defendants that Ex. B. is a nominal transaction is meaningless.... The lessee must surrender the lands to the lesser before he denies the title of the lessor... The defendants have executed a counter part of the lease to the plaintiffs father. They cannot set up that plaintiffs father is not their lessor. Once the relationship of landlord and tenant is established a tenant must surrender possession before ha can set up title that he is the real owner. Besides, court-fee is paid upon one years rent only. Hence the Court cannot go into the title. It is unnecessary to decide whether Ex. A, is a mortgage by conditional sale or an out and out sale and that the Rs. 2,000 due to plaintiffs father was paid. This is a matter to be considered in a property framed suit.