IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 RSA.No. 684 of 2007() --------------------- AS.16/2005 of ADDL. DISTRICT COURT, VADAKARA OS.80/2003 of MUNSIFF COURT, VADAKARA .................... APPELLANT/APPELLANT IN A.S.16 OF 2005/DEFENDANT IN O.S.80 OF 2003 ------------------------------------------------------ MANNICHI MOIDU,S/O. ABDULLA, MERCHANT, 51 YEARS, RESIDING AT THAYIKANDATHIL, MUTTUNGAL AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENT/RESPONDENT IN A.S.16 OF 2005/PLAINTIFF IN O.S.80 OF 2003: ----------------------------------------------------- KAPPANTAVIDA ABDUL RAZAK, S/O. MAMMU, 46 YEARS,MERCHANT,VADAKARA AMSOM DESOM VATAKARA TALUK, KOZHIKODE DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.684 of 2007 --------------------------------------- Dated this 03rd day of March, 2010 JUDGMENT This appeal arises from judgment and decree of learned District Judge, vatakara in A.S.No.16 of 2005 confirming the preliminary decree for partition passed by learned Munsiff, Vatakara in O.S.No.80 of 2003. According to the respondent/plaintiff, the suit property was acquired by him and appellant jointly as per Exts.A1 and A2, assignment deeds dated 09-09-1980 and 31-01-1981, respectively and while they were in joint possession and enjoyment they made a division of the property leaving the northern portion to the respondent and the southern portion to the appellant. Though there was an agreement between them to execute a partition deed accordingly, it could not be done. Hence the suit for partition. Appellant contended that though the documents happened to be taken in the name of himself and respondent, the latter has no right or possession of the suit property since the entire sale consideration flowed from him. He denied that there was division of property between himself and respondent. Trial court found against the contention raised by appellant and granted preliminary decree. That was confirmed by the first appellate court which is under challenge in this appeal raising by way of substantial questions of law whether a plea of sham transaction comes within the R.S.A.No.684 of 2007 2 mischief of section 4 of the Benami Transactions (Prohibitions) Act 1988 (for short, “the Act”) and whether a defence based on right in respect of a property held benami can be considered if the bar under the Act is not taken up by the plaintiff in the suit. It is contended by learned counsel that finding entered by the courts below is not correct. 2. Exts.A1 and A2, assignment deeds in respect of the suit property is admittedly in the name of appellant and respondent and it is also not disputed that as per the said documents the sale consideration flowed from the appellant and respondent jointly. No acceptable evidence is produced by the appellant notwithstanding the recital in Exts.A1 and A2 that the entire sale consideration flowed from him alone. Hence, by virtue of section 45 of Transfer of Properties Act it must be taken that the property belong to the appellant and respondent jointly and that is what the courts below have in effect found. 3. Now the question raised is whether a sham transaction would come within the purview of section 4 of the Act. This court has held in Ouseph Chacko Vs. Raman Nair (1989(1) KLT 767) and Sumathikutty & Ors. Vs. Sathyabhama & Ors. (1994(2) KLJ 244) has held that a sham transaction does not come within the purview of section 4 of that Act. But no question of sham transaction is actually involved in this case. Even if that is accepted it does not make Exts.A1 R.S.A.No.684 of 2007 3 and A2 a sham transaction. So far as the question based on plea of Benami transaction is concerned, under section 4(2) of the Act a defence based on plea of Benami is also barred. For the application of that provision it was not necessary that respondent should have pleaded in the plaint that section 4(2) of the Act prevented appellant from raising such a contention. No such substantial questions of law as urged in the memorandum of appeal do arise for a decision. The courts below on evidence found that it is a joint acquisition by appellant and respondent as per Exts.A1 and A2. Resultantly the second appeal is dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/