IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932 WP(C).No. 11077 of 2010(O) -------------------------- IA NO.308/2009 IN OS.1045/2008 of PRINCIPAL SUB COURT,THRISSUR .................... PETITIONER(S): --------------- STEPHEN AGED 71 YEARS,S/O.LATE CHAKKUNNY KINATTINGAL HOUSE,ERINJERY ANGADI, CHEMBUKKAVU VILLAGE,THRISSUR DISTRICT. BY ADV. SRI.N.M.MADHU SMT.DEVIKA RANI KAIMAL RESPONDENT(S): --------------- CHACKO S/O.PHILIP,BUSINESS, RESIDING AT KANJIRAM NILKUNNATHIL HOUSE, CHRISTOPHER ROAD, ANCHERY P .O.,THRISSUR DISTRICT. ADV. SRI.LITTO VARGHESE PALATHINKAL SMT.P.K.GIGIMOLE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.11077/2010 APPENDIX PETTIONER'S EXHIBITS: EXT.P1 TRUE COPY OF PLAINT IN OS 1045/2008 ON THE FILES OF PRINCIPAL SUB COURT, THRISSUR EXT.P2 TRUE COPY OF WRITTEN STATEMENT FILED BY THE PETITIONER EXT.P3 TRUE COPY OF IA NO.208/2009 FILED BY RESPONDENT EXT.P4 TRUE COPY OF COUNTER FILED BY THE PETITIONER TO EXT.P3 EXT.P5 TRUE COPY OF ORDER DATED 15.02.2010 IN IA NO.308/2009 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.11077 of 2010 -------------------------------------- Dated this the 18th day of June, 2010. JUDGMENT Petitioner who is the defendant in O.S.No.1045 of 2008 of the court of learned Principal Sub Judge, Thrissur challenges legality and correctness of Ext.P5, order dated 15.02.2010 on I.A.No.308 of 2009 in O.S.No.1045 of 2008. Respondent/plaintiff claiming to have purchased 2/3 shares of the suit property from the brothers of petitioner sued for partition and separate possession of his share. Petitioner/defendant raised a contention that the document on which respondent is claiming co-ownership right in the suit property is benami, prohibited by Section 3 of the Benami Transaction (prohibition) Act, 1988 (for short, “the Act”) and hence in view of Section 4 of the said Act respondent cannot seek maintain an action for partition. In the light of that contention learned Sub Judge framed issue Nos.3 and 4 relating to validity of the document based on which respondent is claiming right. While so respondent filed I.A.No.308 of 2009 to delete issue Nos.3 and 4. Petitioner filed I.A.No.480 of 2009 to implead his brothers who according to the petitioner continued to be real owners of the 2/3 shares claimed by respondent and the alleged benamidar. According to the petitioner, himself and his brothers had borrowed Rs.2,50,000/- from one Francis Jose and executed an agreement for sale in favour of the said Francis Jose. Brothers of petitioner executed a power of attorney in favour of said Francis Jose who on the strength of the power of attorney executed the WP(C) No.11077/2010 2 document in the name of respondent. It is the contention of petitioner that the said document is benami and is hit by Sections 3 and 4 of the Act as stated above. Learned Sub Judge allowed I.A.No.480 of 2009 and ordered impleadment of the brothers of petitioner and alleged benamidar. I.A.No.308 of 2009 was also allowed whereby issue Nos.3 and 4 relating to benami transaction and the binding nature of document relied on by respondent/plaintiff were deleted. Learned counsel for petitioner contended that learned Principal Sub Judge was not correct in deleting issue Nos.3 and 4 in view of the contentions raised by respondent and particularly as learned Principal Sub Judge found it necessary to implead brothers of petitioner and the benamidar as parties as per order on I.A.No.480 of 2009. Learned counsel for respondent has contended that attempt of petitioner is to protract the proceedings and so far as the document relied on by the respondent is not in respect of 1/3 share of the petitioner he has no reason to challenge the document in favour of respondent as benami in character. 2. Position of law, it is not disputed is that a co-owner is as good a full owner of every inch of co-ownership property until partition and separate possession of the property. Until partition and separate possession, respondent on the strength of his claim of co-ownership as per the impugned document is entitled to claim joint possession and take part in the profits of the property. WP(C) No.11077/2010 3 Petitioner is entitled to challenge the claim of co-ownership raised by the respondent challenging the document relied upon by the respondent. Petitioner is also entitled to contend that respondent having not acquired any valid right over the property in view of Section 3 of the Act is not entitled to seek partition as his claim is hit by Section 4 of the Act. Respondent cannot contend that petitioner has no right to dispute his co-ownership right. These contentions are very much relevant for consideration. Question whether the said contentions are sustainable is a different matter. In view of that it is necessary to frame issue Nos.3 and 4 as originally done by the learned Principal Sub Judge. Deletion of issue Nos.3 and 4 in the circumstances cannot be sustained. It is no argument to say that in so far as I.A.No.480 of 2009 is allowed and brothers of petitioner and the alleged benamidar are impleaded issue regarding benami can be framed only if the persons impleaded as per I.A.No.480 of 2009 raised such a contention. Apart from the entitlement of said persons to raise such a contention, for the reasons above stated petitioner is also entitled to raise it. As such learned Principal Sub Judge is not correct in allowing I.A.No.308 of 2009 Resultantly, this Writ Petition is allowed in the following lines: i. Order on I.A.No.308 of 2009 deleting issue Nos.3 and 4 is set aside. WP(C) No.11077/2010 4 ii. I.A.No.308 of 2009 will stand dismissed. iii. It is made clear that if issue Nos.3 and 4 are already deleted learned Principal Sub Judge shall frame those issues also for consideration. THOMAS P.JOSEPH, Judge. cks