Case: K.M. Viswanatha Pillai Vs. K.M. Shanmugham Pillai

2. The relevant fact for the determination of the points raised before us are as follows: The plaintiff, K. M. Viswanatha Pillai, appellant before us and hereinafter referred to as the plaintiff and K. M. Shanmugham Pillai, respondent before us and hereinafter referred to as the defendant, were originally members of a Joint Hindu Family. On June 29, 1953, the six brothers who constituted the Joint Hindu Family entered into a partition of the properties belonging to the Joint Family, evidenced by a registered document Ex. A-35. A motor bus MDH 662 fell to the share of the plaintiff. At the time of parition the permit was not in the name of the defendant and some proceedings for the transfer of the permit to his name were pending. Accordingly it was provided in the partition deed as follows:As soon as its route permit and registration etc. are transferred in the name of Shanmugham Pillai, he shall have the same transferred in the name of the 4th individual of us, Viswanatha Pillai3. In September 1953, the permit was transferred in the name of the defendant. In April 1954, the plaintiff purchased two more vehicles namely, M. D. O. 1106 and M. D. H. 730, but the permits were obtained in the name of the defendant in whose name the vehicles were also actually acquired. As the defendant was going to Kuala Lumpur on business he executed a general power of attorney, Ex.A-55, in favour of the plaintiff. In this power of attorney the defendant admitted that the three buses above mentioned belonged to the plantiff and were plying in his name as requested by the plaintiff. Two more buses seem to have been acquired since then4. The plaintiffs case in brief was that the defendant was carrying on business on his behalf as a benamidar. He accordingly prayed for a declaration that the five buses along with the stage carriage permits belonged to him and that he was entitled to run the same in terms of the power of attorney which was irrevocable. The defendant had joined with the plaintiff earlier in filing a joint application for transfer of permits before the Regional Transport Authority. The defendant, however, withdrew his consent and the application was rejected. The plaintiff, accordingly, seeks a mandatory injunction directing the defendant to execute necessary documents required to effectuate the transfer of the permits5. The suit was decreed entirely by the Trial Court, but the District Judge confirmed the decree only with reference to four of the buses. With reference to Bus No. MDU 4069 the decree was set aside6. The High Court held that the plaintiff and the defendant practised a fraud upon the authorities, conjointly, in contravention of the express provision of the Motor Vehicles Act. The benamidar of the vehicles, representing himself to be the owner, falsely obtained the permits in his name, and allowed the true owner, who had no permit, to conduct, the actual business; there cannot be a more flagrant violation of the basic requirements of the Act, or of its scheme. The High Court, accordingly, felt that they could not possibly grant mandatory injunction compelling the defendant to co-operate in any further application for transfer, since that would, in effect, give recognition to the fraudulent contrivance and effectuate rights on the very basis of that contrivance. The High Court also agreed with the District Judge that the plaintiff could not get a declaration as far as bus No. MDU 4069, was concerned.

Reasoning:
There has been a conflict of opinion between the different High Courts as to the inference following that amendment. It seems to us that the High Court of Allahabad in Khalil-ul-Rahman Khan v. State Transport Appellate Tribunal, AIR 1963 All 383   at p. 388 rightly gives the effect of the amendment10. We agree with these observations. The contrary view held in Varadarajulu Naidu v. Thavasi Nadar, 1963-2 Mad LJ 20 = (AIR 1963 Mad 413  ) that S. 42 (1) contemplates that only an owner will have a permit is erroneousThis section does not, in our view, on the language required that the owner himself should obtain the permit; it only requires the owner that the support vehicle shall not be used except in accordance with the conditions of the permit. The High Court would add the words to him after the words permit granted, but, in our view, there is no justification for inserting those words. The definition of the permit itself shows that all permits need not be in the name of the owner because the latter part of the definition shows that it is only in the case of a private carrier or a public carrier that a permit has to be in the owners name. The same inference follows from the definitions of private carrier and public carrier. This court came to the same conclusion in Veerappa Pillai v. Raman and Raman, 1952 SCR 583   = (AIR 1952 SC 192  ).