NARAYANA CHETTIAR Vs. CHOKKAPPA MUDALIAR
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(1.) WE cannot say that there was not evidence on which it was open to the District Judge to say that the transaction was benami. The sale in the present case, however, was one under Act II of 1864 (Madras) and the question therefore as to whether it is open to the third and fourth defendants to contend that the real purchaser was Dandayuda Chettiar and that Palaniappa Chettiar was merely a name lender must be considered with reference to Section 38 and more especially to Section 39 of that Act. The former section provides that the certificate granted by the Collector shall state the name of the purchaser and shall be conclusive evidence of the fact of the purchase, and Section 39 goes further and directs that the Collector shall publish the name of the purchaser with a declaration of the lawful succession of such purchaser to all the rights and property of the former landholder. WE must hold that the effect of this proclamation is to vest the property absolutely in the purchaser as there named and that it is not open to any one to contend subsequently that such purchaser was a benamidar and that the real purchaser was some one else. WE have been referred to two decisions of this Court which, it is urged, are opposed to the view which we have now expressed as to the interpretation to be placed on Section 39 i.e., those to be found in Tirumalayappa Pillai V/s. Swami Naicker I.L.R. 18 Mad. 469 and Subbarayar V/s. Asirvatha Upadesayyar I.L.R. 20 Mad. 494. On referring, however, to those decisions it will be found that they are not really in conflict with the conclusion which we have now arrived at. In Tirumalayappa Pillai V/s. Swami Naicker I.L.R. 18 Mad. 469, the real question at issue was as to the right of the benamidar to sue and in the reference which Mr. Justice Muttusami Aiyar does make to Act II of 1864 it will be found that he refers to Section 38 only and has not considered Section 39. Although the head-note in Subbarayar V/s. Asirvatha Upadesayyar I.L.R. 20 Mad. 494 calls the purchase there under consideration a benami transaction it will be found that such was not the case. The allegation there put forward was that the plaintiff's father had made the purchase not solely on his own behalf, but on behalf of all the villagers, of whom he was one. Such a purchase is not benami. No question as to whether the transaction now under consideration involved an obligation in the nature of a trust under Section 82 of the Trusts Act having been raised in either of the lower Courts we cannot allow such a question, which would necessitate the trial of issues under that section and Section 96, to be mooted now. For these reasons we must hold that it was not open to the third and fourth defendants to contend that Palaniappa Chettiar was not the real purchaser and we accordingly set aside the decree of the District Judge and restore that of the District Munsif with costs here and in the lower Appellate Court.;
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