IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH:: HYDERABAD WEDNESDAY, THE TENTH DAY OF AUGUST TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.No.287 OF 2002 Between:- Munthakana Rami Reddy …Appellant A n d Chinthala Akkayamma (died) per LRs Parapatla Surendra Reddy ..Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY S.A.No.287 OF 2002 JUDGMENT: This appeal is directed against the judgment dated 12.12.2001 in A.S.No.50 of 1996, on the file of the Additional District Judge, Madanapalle, wherein the said appeal filed by the appellant herein, was dismissed, confirming the common judgment and decree dated 20.12.1995 in O.S.No.29 of 1979, on the file of the Senior Civil Judge, Madanapalle, whereunder the suit filed by the respondent herein, the plaintiff, for declaration of title over one acre out of Ac.7-40 cents in Sy.No.483 situate in Kothavaripalle village and for recovery of possession and dissolution of the suit partnership business and rendition of accounts, was decreed, granting a preliminary decree with liberty to the parties to move separate application for rendition of accounts. 2. Heard the leaned counsel for the appellant and the learned counsel for the respondent. Perused the record. 3. The respondent herein filed the suit for the above said reliefs alleging, in brief, as follows:- The first plaintiff Chinnapa Reddy and the second plaintiff Akkayamma (who was brought on record as the sole legal heir of deceased first plaintiff) were not blessed with issues and, therefore, the defendant Rami Reddy, who was closely related to Chinnappa Reddy retired from private service in 1974. The defendant proposed to do farming business and Chinnapa Reddy agreed for the same and invested his own funds in 1965 and took the defendant as a partner with an agreement to share the profits. Initially, there were two sheds constructed by Chinnapa Reddy in the plaint ‘A’ schedule property. The plaintiff went on investing money and the defendant was maintaining the accounts. The defendant wanted to take loan from the State Bank of India for the purpose of extension of poultry farm and to facilitate the same, the first plaintiff executed a nominal sale deed in favour of defendant on 06.11.1973 so that the same can be kept as security for the loan with the bank. Thus, according to the plaintiff, the sale deed was nominal and it was never intended to effect transfer of title and the defendant never acquired any rights also in the ‘A’ schedule land. He further pleads that the defendant agreed to execute a document formally re-conveying ‘A’ schedule land after discharge of the loan. Accordingly, the defendant obtained a loan of Rs.8,500/- from the bank. Subsequently, the plaintiff constructed a stone terraced building over the suit land for the purpose of residence and also business. The plaintiff and his wife resided in the said house from 1974 to 1977. Subsequently, misunderstandings arose between the plaintiff and defendant and when the plaintiff asked the defendant to show the accounts of business, defendant evaded the same and did not pay the share of income to the plaintiff. According to the plaintiff, the defendant was aggrieved because the plaintiff’s wife executed a Will in favour of one Janardhana Reddy, son of plaintiff’s co-son-in-law Narayana Reddy and Atchamma, daughter of plaintiff’s sister, and her sister Ramalakshmamma in respect of the plaint schedule property. The plaintiff wrote a registered letter on 06.04.1978 expressing his disgust and demanding rendition of accounts. The defendant, though received the letter, did not give any reply. The plaintiff got issued a registered notice dated 29.08.1978. The defendant got issued a reply dated 11.09.1978. The plaintiff issued another notice dated 11.03.1979 expressing his intention to dissolve the partnership. The defendant received the same but did not give any reply. Hence, the plaintiff filed the suit for declaration of title and also for possession. 4. The defendant filed written statement contending, in brief, as follows:- The defendant could not prosecute studies. He himself started poultry farm business in 1966 with his own funds and the plaintiff did not finance the same. The sheds were constructed by defendant and the plaintiff has no share therein. The defendant purchased the plaint ‘A’ schedule land from the plaintiff for a valid consideration under a registered sale deed dated 06.11.1973. Thereafter, the defendant applied for a loan in State Bank of India in his own right with a view to improve the business. It is false to say that the sale deed dated 06.11.1973 is sham and nominal. The said sale deed is valid and binding on the plaintiff and his wife. The defendant is in possession and enjoyment of the suit property in his own right ever since the date of sale. The alleged misunderstandings and refusal of the defendant to render accounts on account of misunderstandings is false. The defendant, being the absolute owner of the plaint schedule property, is at liberty to make constructions. To the notice issued by the plaintiff, the defendant gave suitable replies. 5. Based on the above pleadings, the trial Court framed the following issues: i) Whether the plaintiff is entitled for declaration of title and for possession? ii) Whether the alleged partnership is true? iii) Whether the defendant is liable to account? iv) Whether the plaintiff is entitled to any relief in the suit? v) To what relief? 6. During trial, P.Ws.1 to 3 were examined and Exs.A-1 to A-45 were marked on behalf of the plaintiff. D.Ws.1 to 4 were examined and Exs.B-1 to B-15 were marked on behalf of the defendants. 7. On a consideration of the evidence available on record, the trial Court held on issue No.1 that the original of Ex.A-1 sale deed is nominal document. On issue No.2 it was held that the first plaintiff was one of the partners along with the defendant who was the managing partner of the poultry business. On issue No.3, it was held that the defendant is liable to render accounts of the partnership business. On issue No.4, it was held that the plaintiff is entitled for declaration of title and recovery of possession. The trial Court further held that the partnership business stands dissolved from the date of the judgment and defendant is liable to render accounts and pay the share of income to the plaintiff. Aggrieved by the same, the defendant preferred an appeal in A.S.No.50 of 1996. The appellate Judge framed the following point for determination: “Whether the trial Court is right in decreeing the suit of the respondent/plaintiff filed for declaration of his title over the suit schedule properties and for delivery of possession of the same is in his favour.” By the impugned judgment dated 12.12.2001, the learned Additional District Judge, Madanapalle confirmed the said findings and dismissed the appeal. Hence, the present appeal by the defendant. 8. In the grounds of appeal, the following questions are proposed, which, according to the appellant, are substantial questions of law: a) Whether a suit for declaration of title and recovery of possession can be maintained, when admittedly the plaintiff/respondent sold the schedule property to the defendant/appellant under a registered sale deed dated 16.11.1973 (Ex.A-1), that too without seeking cancellation of the said sale deed? b) Whether the Court below was right in holding Ex.A-1 as nominal, when the sale deed was executed in accordance with the provisions of Section 54 of the Transfer of Property Act? c) Whether the suit filed as such is maintainable in view of the provisions of the Benami Transactions (Prohibition) Act, 1988? d) Whether the judgment of the lower appellate Court is not vitiated inasmuch as it did not frame any point for consideration nor has it considered the issues framed by the trial Court and record its findings? e) Whether judgment of the Courts below are not vitiated inasmuch as they misread and misconstrued the oral and documentary evidence on record? 9. Learned counsel for the appellant raised a preliminary contention that the judgment of the first appellate court is vitiated as no specific point for consideration is framed and the findings recorded by the trial court on the issues have not been considered. In that connection, he relied upon the decision of this court in ‘MANKENA SURYANARAYANA V. MANKENA SUBBA RAO[1]’ wherein this court held as follows: “The appellate Court without framing any specific Points for consideration at all, having discussed the oral and documentary evidence, came to the conclusion that the defendants are not the owners of these Items and hence they cannot be forced to execute a sale deed and accordingly negatived the relief granted by the Court of first instance. It is unfortunate that despite the binding decisions of this Court, the decision of the Division Bench in Mir Abdul Hakeem Khan Vs. Abdul Mannan Khadri and also Netyam Venkataramana and others Vs. Maharkali Narasimham (died per L.Rs.) and that too without framing any specific Points for consideration while deciding the Appeal when several factual controversies are involved, predominantly relying upon Ex.X series and also the evidence of D.W.1 to D.W.6, holding that the defendants are not the owners of the property and hence the relief of specific performance cannot be granted and reversing the well considered findings of the Court of first instance on such ground, in the considered opinion of this Court cannot be sustained.” In the above case it was found that the appellate court has not framed any specific points for consideration in the appeal, but however, discussed the evidence available on record and reversed the judgment of the trial court. The matter was therefore remanded to the appellate court to record appropriate finding in accordance with law. The impugned judgment of the appellate court was therefore set aside and the matter was remanded. The decision is not applicable to the facts of the present case for the simple reason that the appellate court did in fact frame the points for consideration in para 9 of the impugned judgment based on the arguments advanced by both sides. The point for consideration specified by the appellate court is whether the trial court is right in decreeing the suit of the respondent/plaintiff filed for declaration of his title over the suit schedule properties and for delivery of possession of the same in his favour? No doubt, the said point for consideration is coached in general terms without detailing various specific questions that would arise for consideration before determining general issue as to whether or not the plaintiff is entitled for the reliefs prayed for. Nevertheless, it cannot be said that the appellate court has not focused its attention on any point for consideration or that the judgment is vitiated on that score. The point for consideration posed in the impugned judgment of the appellate court is comprehensive in its amplitude and takes into its fold the other specific points that arise for consideration, which were in fact subject matter of discussion under various issues settled by the trial court. The contention of the learned counsel for the appellant that the impugned judgment of the appellate court is vitiated and is not in accordance with law is therefore held untenable. 10. The next contention raised by the learned counsel for the appellant on the substantial question of law to be considered in the second appeal is that the suit for declaration and recovery of possession is not maintainable without seeking cancellation of the sale deed dated 06.11.1973 Ex.A.1. The execution of the sale deed under original of Ex.A.1 by the deceased first plaintiff Chinnapa Reddy in favour of the appellant/defendant is not disputed. According to the first plaintiff, as he was issueless, he brought up the defendant in his house from defendant’s childhood and when the defendant proposed to start poultry farm business, the first plaintiff agreed for the same and invested certain amounts and for expansion and improvement of the said business, the defendant intended to take loan from the State Bank of India, for which plaint A schedule property was required to be kept as security and therefore, at the request of the defendant, the first plaintiff executed a nominal sale deed in favour of the defendant under original of ex.A.1. The defendant on the other hand would contend that he developed the poultry farm business with his own funds and purchased Ac.1.00 out of the suit land from the first plaintiff for valid consideration and kept the same as security with the bank and obtained loan in his own right. He would therefore contend that the original of Ex.A.1 sale deed is valid and supported by consideration. 11. The plaintiff filed suit for declaration of title and for recovery of possession. The defendant resisted the same by setting up a title to the suit property in himself. The trial Court framed issue No.1, whether the plaintiff is entitled for declaration of title and for possession? While discussing the said issue, the trial Court has considered the question as to whether the sale deed Ex.A.1 was sham and nominal as contended by the first plaintiff or it was valid and supported by consideration as contended by the defendant. The trial Court answered the said issue in favour of the plaintiff, after discussing the entire oral and documentary evidence thread bare and holding that the original of Ex.A.1 was nominal document. The said finding was confirmed by the appellate Court on reappraisal of the evidence reiterating that Ex.A.1 was a nominal sale deed. The question as to whether or not Ex.A.1 sale deed was supported by consideration and whether or not it was a nominal sale deed are questions of fact that arose for consideration based on the evidence made available on record and the courts below have recorded a concurrent findings on the said question and held that original of Ex.A.1 is sham and nominal document. The plaintiff was therefore held entitled for declaration of title and for recovery of possession. When the entire evidence was thus made available on record in support of their respective contentions of both parties and the same has been duly considered by the trial Court and on reappraisal of the evidence, the appellate Court confirmed the findings of the trial Court and the said findings on question of fact do not call for interference in the second appeal. The fact that the trial Court has not framed a specific issue as to whether the original of Ex.A.1 is a sham and nominal document is of no consequence since the said question has in fact been considered by the trial Court based on the evidence adduced by both sides while discussing Issue No.1 and ultimately held that the said document is sham and nominal and does not convey any title in favour of the defendant and therefore, the plaintiff is entitled for the relief of declaration of title and recovery of possession. The relief of declaration of title is certainly more comprehensive and all pervasive relief than the relief of declaration that the document is a sham and nominal. The contention of the learned counsel for the appellant that when there is no specific issue as to the sham or nominal nature of document Ex.A.1, the trial Court ought not to have recorded a finding thereon is untenable, since the said question forms an integral part of more comprehensive issue as to whether or not the plaintiff is entitled for declaration of title. While considering larger issue pertaining to declaration of title, which takes into its sweep and fold, the lesser issue in respect of sham or nominal nature of the document, the trial Court has recorded a finding that Ex.A.1 sale deed is sham and nominal. 12. In ‘MOHD. KAREEMUDDIN KHAN (DIED) & OTHERS V. SYED AZAM[2]’, the Division Bench of this Court held as follows: “…Where parties adduce evidence in respect of a matter for which an issue has not been struck and both sides are well aware of the dispute which relates to the issue, the defect of non-framing of the issue is cured and there will be no inherent lack of jurisdiction in the Court to go into that question and decide that aspect of the matter.” 13. In the circumstances, it is held that the contention of the learned counsel for the appellant that the judgments of the Courts below are vitiated due to non-framing of specific issue or point for consideration pertaining to sham and nominal nature of the document Ex.A.1, is held untenable. 14. Learned counsel for the appellant would next contend that the suit for declaration of title is not maintainable without praying for cancellation of the sale deed Ex.A.1. According to the plaintiff, there was no passage of consideration under Ex.A.1 and he executed the said document nominally in favour of the defendant to enable the defendant to mortgage the property to the bank and to obtain loan. The defendant on the other hand would contend that Ex.A.1 is supported by consideration and is a valid and binding document. The evidence adduced by both parties has been considered by the trial Court to ascertain the intention of the parties behind execution of the said document and the circumstances in which the said document came to be executed. The said appreciation and reappraisal of the evidence, which culminated in recording concurrent findings on a question of fact as to passage of consideration and the intention of the parties and the circumstances in which it was executed do not fall for reconsideration in the second appeal. As the plaintiff specifically pleaded that Ex.A.1 was a sham and nominal document, he sought declaration of title straightaway without seeking cancellation of the said document. 15. In ‘SEERA SIMHACHALAM V. P. SIMHACHALAM[3]’ this could held as follows: “Sub-section (1) of Section 31 of the Specific Relief Act provides that any person against whom a written instrument is void or voidable and has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. It is manifest from the section itself that it is not mandatory or obligatory to sue for cancellation of the instrument. It is optional and it is for the person against whom such instrument is void or voidable to sue to have it set aside where he has a reasonable apprehension that it may cause him serious injury if left unchallenged.” In the above case, suit was filed for permanent injunction based on possession and enjoyment. The plaintiff contended that he executed nominal sale deed in favour of first defendant who is his close friend and on the same day, first defendant executed agreement of re- conveyance and that the said sale deed was never intended to act upon and the plaintiff continued to be in possession and enjoyment of the suit land and subsequently, on account of certain disputes, the defendant began to interfere with the plaintiff’s possession and enjoyment of the plaint schedule property. The defendant therein resisted contending that the sale deed was fully supported by consideration and possession was delivered to him and the alleged agreement of re- conveyance was false. The trial Court found that the sale deed was nominal and it was not acted upon and the plaintiff continued to be in possession and therefore decreed the suit and the same was confirmed by the appellate Court. When the matter came up in the second appeal, this Court held that both the courts below concurrently found that the plaintiff was in possession and enjoyment of the suit property. Though there was no specific issue regarding nominal nature of the sale deed, the parties were fully alive to the said questions and both the parties lead evidence regarding the same and the issues were already framed in the suit are wide enough to comprehend the said questions also and as such, it was held that there was no illegality or infirmity in the findings of fact recorded by both the courts below. It was further observed that it is well settled that a sham or nominal sale deed need not be set aside or cancelled and only if it is a real transaction it has to be set aside. 16. The above decision applies to the facts of the present case, which are more or less similar in nature, but for the difference that in the above case, suit was filed for a mere injunction, whereas in the present case, a more comprehensive relief of declaration of title is sought for. 17. Learned counsel for the respondent relied upon a decision in ‘ANANDA SONJI WAKODE V. PANDURANG SHAMRAO VARILAL[4]’ wherein the Mumbai High Court (Nagapur Bench) held as follows: “…The plaintiff was therefore entitled to file a suit for declaration, in view of the fact that the defendant was trying to interfere with the plaintiff’s possession on the basis of the said sale deed it was therefore not necessary for the plaintiff to seek declaration of his title or for cancellation of the said sale deed dated 23.01.1989. A sham or nominal sale deed need not be set aside or cancelled, only if it is a real transaction it has to be set aside or cancelled. The plaintiff was not claiming any relief on the basis of the said sale deed but was only seeking a declaration that the same was nominal and sham.” In the above case also it was found that both the courts below have concurrently held that the sale deed dated 23.01.1989 was sham and nominal and that the plaintiff was in possession and continued to be in possession based on the execution of the sale deed. The plaintiff, however filed suit for declaration that the sale deed dated 23.01.1989 was a sham and nominal and also for injunction. The defendant therein contended that the transaction was out and out sale deed and was fully supported by consideration and pursuant to the sale deed he was put into possession. In the above case, it was observed that a sham or nominal sale deed need not be set aside or cancelled and if it is a real transaction, it has to be set aside or cancelled. The substantial question of law which arose for consideration was whether the suit was tenable as the plaintiff had not claimed for setting aside the sale deed, which he had executed in favour of the defendant. It was held that the plaintiff was entitled for declaration that the sale deed was sham and nominal without seeking relief of setting aside the sale deed. 18. Learned counsel for the appellant referred to the decision of the Madras High Court in ‘RANGAPPA NAYAKAR V. RANGASWAMI NAYAKAR[5]’, wherein distinction between a benami transaction and sham and nominal transaction is succinctly brought out as follows: “The essence of a sham transaction is that though a registered deed is brought into existence no title of any kind, either legal or beneficial, is intended to be passed thereby to any person, whatsoever, i.e., the deed of transfer is not intended to effect any transfer of property. The difference between sham transactions and benami transactions is one of intention. If the deed of transfer is made with the intention of placing the property in the name of a third person the intention clearly amounts to a transfer of the legal title, and such a transaction can scarcely be recalled a sham transaction, but comes directly within the meaning of benami transactions properly so called.” There can’t be any dispute regarding the proposition laid down in the above decision. In the present case, it is not the allegation of the plaintiff that the original of Ex.A.1 sale deed was executed benami in favour of the defendant. The specific case of the plaintiff has been that there was no transfer of title in favour of the defendant and the intention of the parties was only to facilitate the defendant to obtain a loan from the