IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 9TH FEBRUARY 2010 / 20TH MAGHA 1931 SA.No. 710 of 1996(A) --------------------- AS.107/1994 of SUB COURT, PALA OS.246/1984 of MUNSIFF COURT, PALA .................... APPELLANT(S)/appellant/PLAINTIFF: -------------- DAISAMMA, W/O.ALEX, CHUVAPPUMKAL, BHARANANGANAM VILLAGE AND KARA, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT(S)/RESPONDENTS/DEFENDANTS: --------------- 1. VARGHESE, S/O.THOMMAN, PAIKAKKAVUMKAL, POOVARANI VILLAGE, MEENACHIL TALUK KOTTAYAM DISTRICT 2. ROSAMMA, W/O.VARGHESE, RESIDING IN -DO- -DO- ADV. SRI.T.KRISHNAUNNI, SENIOR ADVOCATE SRI.K.PAUL KURIAKOSE SRI.M.GOPIKRISHNAN NAMBIAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.1514/96, 680/97 & 1810/06 IN SA.710/96 DISMISSED 9/2/10 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ S.A.NO.710 OF 1996 ------------------------------------------ Dated 9th February 2010 JUDGMENT Plaintiff in O.S.246/1984 on the file of Munsiff court, Pala is the appellant. Respondents are the defendants. First respondent is the brother of the appellant and second respondent the wife of first respondent. Appellant instituted the suit seeking a declaration of title and recovery of possession of the plaint schedule property and permanent prohibitory injunction from conducting slaughter tapping. Plaint schedule property is 92½ cents and building namely, 60½ cents in survey No.379/2 and 30 cents in survey No.379/3 of Puvarani village of Meenachil Taluk. Appellant would contend that she SA 710/96 2 purchased the property from respondents under Ext.A1 sale deed dated 14/9/1981 and respondents sold the property to shift their residence to Malabar and as they needed time to shift residence, they were permitted to reside in the building and though respondents promised to vacate the building they did not do so and in December 1982, appellant demanded surrender of possession of the property and the building, but respondents refused to surrender the property and they attempted to start slaughter tapping of rubber trees, though they have no right to do so. Appellant sought a decree for declaration of title and recovery of possession of the plaint schedule property. It is also contended that 2½ cents of the property with the building which lies to the south eastern SA 710/96 3 portion of the plaint schedule property was purchased by the appellant in 1969 and it was rented out to the first respondent and first respondent sublet the building and did not pay rent and O.S.255/1984 is filed for recovery of possession of the building and that suit is also being resisted by the respondents. Respondents in their written statement contended that Ext.A1 sale deed was only a benami transaction and it was never intended to take effect and no consideration was paid thereunder and respondents executed it to shield the property from the creditors and value of the property in 1981 is not less than Rs.50,000/- per cent and total value would come to Rs.13,80,000/- and the value shown in Ext.A1 is only Rs.80,000/- and the property was not sold to the appellant SA 710/96 4 and appellant did not get any title to the property and the suit is therefore, only to be dismissed. Learned Munsiff framed necessary issues. Finding that respondents are setting up a contention that Ext.A1 is only a benami transaction, learned Munsiff found that burden is on the respondents and therefore, directed them to adduce evidence. First respondent was examined as DW1. Four witnesses were examined as Dws.2 to 5. Exts.B1 to B11 and C1 and C1(a) were marked. Appellant did not adduce any oral evidence. Only Ext.A1 was marked. Learned Munsiff on the evidence found that though contention raised by the respondent was that it is a binami transaction, evidence was that it was entrusted on fiduciary capacity as a trustee and the document was a sham and SA 710/96 5 nominal document which was not acted upon. It was found that against the evidence of first respondent and the witnesses not even a formal evidence was adduced by the appellant. It was therefore, held that Ext.A1 is only a sham and nominal document not acted upon and therefore, appellant did not derive any title thereunder and dismissed the suit. Appellant challenged the judgment before Sub court, Pala in A.S.107/1994. Before the appellate court appellant filed I.A.754/1994, an application under Rule 27 Order XLI of Code of Civil Procedure to receive eight documents as additional evidence to show that respondents have purchased properties in Malabar, as stated in the plaint and therefore, those documents are to be received as additional evidence. Learned Sub SA 710/96 6 Judge dismissed I.A.754/1994. On re- appreciation of evidence he confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 2. Second appeal was admitted formulating the following substantial questions of law. 1) Is not the rejection of the application filed by the appellant before the court below under Order XLI Rule 27 C.PC for receiving additional evidence, contrary to the principles laid down in the Municipal Corporation of Greater Bombay v. Lala Pancham and others (AIR 1965 SC 1008) since those documents were necessary for satisfactory disposal of the appeal? SA 710/96 7 2) Are the courts below justified in holding that Ext.A1 is a sham transaction without there being proper pleading and adequate evidence in that behalf? 3) Have not the courts below placed the burden on the wrong shoulders, while disposing of the case? 3. Learned Senior counsel appearing for the appellant and learned counsel appearing for respondents were heard. 4. Learned Senior counsel argued that though appellant did not adduce any oral evidence before the trial court and opportunity sought for was denied by the first appellate court and in such circumstances, in the interest of justice SA 710/96 8 opportunity is to be granted to adduce further evidence. It was argued that if the additional documents produced before the appellate court were received and opportunity is granted to adduce further evidence, appellant could establish that Ext.A1 sale deed was not a sham document as found by the courts below and instead, it was acted upon and respondents executed Ext.A1 as real sale deed so as to shift their residence to Malabar and in such circumstances, an opportunity is to be granted to adduce oral evidence. It was also argued that there was no pleading in the written statement by the respondents that Ext.A1 is a sham document not acted upon and instead what was contended was that it was a benami transaction entered into by the respondents SA 710/96 9 in favour of the appellant to shield the properties from the creditors and when the plea of benami transaction is hit by Benami Transaction (Prohibition) Act the case was subsequently changed at the time of arguments and in such circumstances, judgments of the courts below are unsustainable and are to be set aside. 5. True, the written statement does not specifically plead that Ext.A1 is a sham and nominal document not intended to be acted upon and instead the plea was that it was executed in the name of brother of first respondent, appellant, to shield the property as creditors may proceed against the property. But written statement also specifically contain averment that consideration shown in the document is far SA 710/96 10 less than the actual land value of the property during the relevant period and Ext.A1 was not executed with an intention to transfer the property and it was not acted upon. Therefore, for the reason that there was no specific pleading that it is a sham and nominal document which was not acted upon, and the pleading is that it is benami transaction, it cannot be said that findings of the courts below is to be interfered on that ground. 6. There are two types of benami transaction. The fundamental difference between the two types of transactions is whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter which is also loosely termed as benami transaction SA 710/96 11 there is none and the transferor continue to retain the title, not withstanding execution of the transfer deed. In such circumstances, it cannot be said that plea that as Ext.A1 sale deed alleged to be a benami transaction there is no plea that it is a sham and nominal document which was not intended to be acted upon and was not acted upon. As respondents raised the contention that Ext.A1 registered sale deed was not acted upon, learned Munsiff held that burden is on them to prove that case and directed them to adduce evidence first. First respondent was examined as DW1 and witnesses were also examined. Proceeding paper of the learned Munsiff establishes that after closing the evidence of defendants, suit was posted for the evidence of the plaintiff and even SA 710/96 12 adjournment was granted to enable the plaintiff to adduce the evidence. Still plaintiff did not adduce any evidence. It is in such circumstances, learned Sub Judge rightly found that case of the appellant that opportunity was not granted to adduce evidence is not sustainable. I find no reason to interfere with that finding. 6. In the absence of rebuttable evidence on the side of plaintiff, the only evidence available is that of the respondents. Evidence of the first respondent establishes that consideration shown in Ext.A1 was not paid and Ext.A1 sale deed was not acted upon and it was never intended to be acted upon. If Ext.A1 sale deed was genuine transfer of the property whereunder respondents divested their right and that SA 710/96 13 right was vested with the appellant, he should have paid at least the basic tax thereafter. Appellant has no case that basic tax was ever paid by him. As DW1 first respondent asserted that he has been paying the property tax throughout, it was not challenged. There is not even a suggestion that the property tax was being paid by the first respondent for and on behalf of the appellant or as authorised by the appellant. In such circumstances, on the evidence the courts below found that Ext.A1 sale deed was not acted upon and it was executed only as a sham and nominal document. 7. Learned Senior counsel vehemently argued that in view of the production of additional documents before the first appellate court, an opportunity should have SA 710/96 14 been granted by the first appellate court. It was argued that documents produced along with the application filed under Rule 27 Order XLI of Code of Civil Procedure are necessary for pronouncing a better judgment and learned Sub Judge should have exercised the powers under Rule 27 of Order XLI and accepted them as additional evidence. Though learned counsel attempted to persuade me to admit those documents as additional documents, and to remand the suit to grant an opportunity to the appellant to adduce evidence, on the evidence and circumstances of the case, I do not find that it is in the interest of justice to remand the suit. Documents sought to be admitted in I.A.754/1994 are documents evidencing purchase of properties by the respondents in Malabar. It is seen that when SA 710/96 15 DW1 was cross examined, he was asked about the purchases. DW1 categorically admitted that respondents had purchased five acres in the name of first respondent, five acres in the name of second respondent and five acres in the name of their son. In such circumstances, production of additional documents will not materially affect the case and for that purpose, I do not find it just or necessary to remand the suit as sought for. On the evidence, I find no reason to interfere with the findings of the courts below. Appeal is dismissed. No cost. M.SASIDHARAN NAMBIAR, JUDGE. uj. The figures “Rs.50,000/-” and “Rs.80,000/- occurring at lines 15 and 17 respectively in page 3 of the judgment dated 09/02/2010 SA 710/96 16 are corrected as “Rs.15,000/-” and “Rs.8,000/-” respectively and the word “brother” occurring in line 5 of paragraph 5 in page 9 is substituted by the word “sister”, as per the order dated 19/05/2010 in I.A.761/2010. Registrar (Judicial)