LexSANTAKUMARI AND ORS. versus LAKSHMI AMMA JANAKI AMMA (D) BY LRS. AND ORS.
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.. SANTAKUMARI AND ORS. v. LAKSHMI AMMA JANAK! AMMA (D) BY LRS. AND ORS. AUGUST 10, 2000 [V.N. KHARE AND S.N. VARIAVA, JJ.] Benami Transaction : Execution proceedings against plaintiff-In order to deposit decretal amount plaintiff sold suit property and simultaneously got a document executed by purchaser to sell the praperty to one of his relations-Held, High Court has rightly concluded that the transaction was a mortgage by conditional sale- Even if the sale deed was executed, vendor had no intention to permanently dispose of the property-The second transaction was a benami transaction and heirs of plaintiff-vendor entitled to a decree of declaration as owner of the property and for recovery of possession. Code of Civil Procedure, 1908 : S.100-Second appeal-Substantial question of law-Construction of documents upon which claim to property is based-Held, is a substantial question of law. The suit property belonging to the father of the plaintiff-respondent, namely, 'KN' was attached in execution proceedings. However, he was allowed to get back the property provided he deposited the decretal amount A B c D E In order to raise funds, 'KN' executed a sale deed (Ext.A-5) in favour of F one 'KC' and on the same day 'KC' executed another agreement (ExtA-6) in favour of 'KKN', a relation of 'KN', stipulating that 'KC' would sell the suit property to 'KKN' after 10 years but before expiry of 11 years. 'KKN' further assigned his rights under Ext.A-6 to predecessor of the appellant by a deed of assignment (Ext.A-7). Later, when the assignee got a sale deed in respect of suit property executed in his favour as stipulated in Ext.A-6, the plaintiff-respondent filed a suit against the said assignee for declara- tion that she was owner of the property, and for possession. The trial court decreed the suit holding Ext.A-5 to be a genuine document and Ext.A-6 and Ext.A-7 as benami transactions entered into on behalf of 'KN' and that predecessor of appellant was merely a trustee of 'KN'. It further held 353 G H 354 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R. A that the defendant had spent considerable amounts and it was necessary to take accounts between the parties, and since there was no prayer to render accounts, the suit could not be decreed. Both the parties filed appeals. The appellate court held that once the trial court held Ext.A·S to be genuine, it followed that Exts.A-6 and A· 7 were not genuine, and, therefore, predeces· B sor of the appellant had a right to the suit property. The plaintiff filed a second appeal. The High Court held that taken as a whole, the transactions were in the nature of mortgage by conditional sale, and passed a prelimi- nary decree for redemption and directed taking of accounts. Aggrieved, the defendant filed the present appeal. C It was contended for the appellant that the High Court without D E formulating any question of law decided the second appeal and erred in holding that the transaction was a mortgage by conditional sale even though there was no such pleading, nor was there any prayer to that effect. Dismissing the appeal, the Court HELD : 1. It cannot be said that the second appellate court, I.e., the High Court, has not formulated the question of law. The High Court has categorically stated that there Is a substantial question of law between the parties inasmuch as the construction of documents under which the claim to property Is made Is a substantial question of law. [358-G·H] Kochukaskkada Aboobacker v. Attam Kasim, [1996] 7 SCC 389; Guran Ditta v. T. Ram Ditta, AIR (1928) P.C. 172 and Neelu Narayani v. Lakshmanan, [1999] 9 sec 237, relied on. 1.2. The suit was for a declaration that the plaintiff is owner of the F property and for recovery of possession. The claim to ownership and possession was on the basis of interpretation of the documents Exts.A-S, A· 6 and A-7. In effect the trial court, on the interpretation of the three documents, said that the transaction was in the nature of mortgage by conditional sale. The first appellate court erred in interfering merely on G the ground that if Ext.A-S was found to be a genuine document, it neces· sarlly followed that Exts. A-6 and A-7 were also genuine transactions and not benami transactions. [358-D-F] 1.3. The facts leading to the execution of Exts.A-S to A· 7, and the manner in which these documents are executed are all very relevant. The H property had
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