- (1.) This appeal is by defendant No. 3 before the trial Court and the said appellant is aggrieved by the judgment and decree passed in R. A. No. 85/1989 by the learned Additional District Judge, Dakshina Kannada, Mangalore, (Lower Appellate Court) reversing the judgment and decree dated 12-4-1979 passed in O. S. No. 12/1973 by the trial Court.
(2.) The facts in brief are to the effect that one Isabella Veigas had two sons and one daughter viz. William Veigas, Lawrence Veigas and Juliet Mathias. The said Isabella settled the suit schedule properties in favour of her son Lawrence Veigas and wife of the said Lawrence Veigas viz. Mrs. Mildred Veigas in equal moiety keeping life interest as per the registered settlement deed and she also made provision for her daughter Mrs. Juliet Mathias by paying suitable dowry and bequeathing some land to her son. Lawrence Veigas, who was the father of the plaintiff in the suit, settled his share of the property which he got from his mother in favour of William Veigas. Later on, the marriage relationship between Lawrence Veigas and his wife Mildred got strained and therefore, she filed a suit against her husband i.e. Lawrence Veigas and the said suit ultimately led to a compromise and in the final decree proceedings, the share of Mildred Veigas was purchased by defendant No. 1-William Veigas. That is how the entire suit schedule property came to the hands of William Veigas. The plaintiff before the Court below, being one of the four children of Lawrence Veigas, brought the suit before the Trial Court and prayed for declaration and possession in his favour in respect of the suit schedule property on the ground that the settlement deed executed by Lawrence Veigas in favour of the defendant No. 1-William Veigas was a benami transaction and the property which was settled in the name of the defendant No. 1-William Veigas was to be held by the defendant No. 3 as benamidar on behalf of the true owner i.e., Lawrence Veigas and the reason for Lawrence Veigas to settle the property in favour of the defendant No. 1 was on account of the insolvency petition No. 149/1944 being filed by the said Lawrence Veigas in the High Court of Bombay and therefore, in order to free himself from the pressures of the creditors, Lawrence Veigas has to resort to this benami transaction and as such what was held by defendant No. 1-William Veigas was actually the property owned by Lawrence Veigas and defendant No. 3 was only a benamidhar was the contention taken by the plaintiff before the Court below. It was also contended that, subsequent to the compromise decree, the settlement deed executed by defendant No. 1-William Veigas in favour of his sister Juliet Mathias also got tainted by the earlier benami transaction and as such both these transactions are not binding on the plaintiffs and he thus prayed for the abovesaid reliefs in the suit.
(3.) On the other hand, the stand of the defendants before the Court below was that Lawrence Veigas, father of the plaintiff had settled his share in the property in favour of his brother William Veigas under a registered settlement deed dated 5-4-1944 and since then the said defendant No. 1-William Veigas became the absolute owner of the half share of the suit property. As regards the other half share is concerned, in view of the suit filed by the wife of Lawrence Veigas leading to a compromise and a final decree being passed on 9-12-1947 under which it was agreed that the defendant No.1 i.e,. William Veigas shall pay Rs.13,670/- to the above said Mildred Veigas in full and final settlement of, her half share in the property, accordingly, the said amount was paid by the defendant No. 1 William Veigas and thereafterwards, the defendant No. 1 having become the owner of the entire suit schedule property, settled the same in favour of his sister i.e. the defendant No. 2 by settlement deed-4-7-1963 by keeping life interest for himself and later on even that was also transferred to the defendant No. 2 through registered deed dated 25-2-1972 and thus defendant No. 2 became the absolute owner in respect of the suit properties and as far as the benami nature of the transaction is concerned the defendants before the trial Court disputed the said stand of the plaintiff and it was also contended that the defendants were in peaceful possession and enjoyment of the suit schedule property ever since the settlement that took place in the year 1944 find therefore, the suit of the plaintiff did not. merit any consideration and it was also barred by time " 4. Based on the pleadings of the parties the learned Judge of the trial Court framed a,s many as 11 issues and the core issues revolve d around the nature of the settlement deed i.e. whether it was a benami transaction or whether it was actually a settlement effected by Lawrence Veigas in favour of his brother William Veigas? 5. After appreciating the evidence let in by the parties, both oral and documentary, the trial Court came to the conclusion that the plaintiff had failed to establish the benami nature of the transaction that led to settlement deed being executed in the year 1944 and on the other hand, the trial Court wa's of the view that Lawrence Veigas had actually settled the property which was the subject matter of the settlement deed in favour of his brother William Veigas and it was not the intention of Lawrence Veigas to treat the said transaction as one of benami in nature. The trial Court aiso found that the suit filed by the plaintiff was barred by time inasmuch as in respect of the relief of declaration which was sought by the plaintiff, the trial Court found that the plaintiff was aware of his rights as early as in the year 1958 and kept mum only to wake up king after the limitation period got over and therefore the trial Court agreed with the contention of the defendants that the suit was barred by time. Consequent to the said findings on the core issues, the trial Court answered issues 1, 2, 5 and 6 against the plaintiff and issues 3 and 6 in favour of the plaintiff, The suit ultimately came to be dismissed in the light of the findings recorded as afore said. 6. Aggrieved by the dismissal of the suit, the plaintiffs preferred appeal before the Lower Appellate Court in R. A. No. 85/1989. The Appellate Court on appreciating the evidence placed by the parties before the lower appellate Court and also taking into account the reasons given by the Trial Court, came to the conclusion that the settlement deed i.e. Ex. P2 was nothing but a transaction which was purely benami in nature and the circumstances that were placed before the trial Court in the form of evidence by the parties also led the Appellate Court to take the view that Lawrence Veigas had no intention whatsoever of parting away his share of the property in favour of William Veigas and as the said Lawrence Veigas was under tremendous financial pressure as he was due to several creditors and also filed an insolvency petition before the High Court of Bombay, and it was the desire of Lawrence Veigas to see that the property does not go out of the family circle and more importantly his children should not be deprived of the property, as such the above said Lawrence Veigas therefore, took the step of protecting his property by settling it in favour of his brother William Veigas for the abovesaid purpos.es and as such, the circumstance would go to establish that the transaction which led to Ex. P2 coming into existence was purely one of benami in nature and it was never intended by the settler that the property should be enjoyed absolutely by his brother William Veigas. The learned Judge of the Appellate Court also took the view that the case on hand required examination of the evidence and other circumstances by having recourse to an armchair technique and therefore, one has to put himself into the shoes of Lawrence Veigas and view the transaction. Another important factor that led the Appellate Court to take the said view was the admission made by DW1-defendant No. 1 in the course of his evidence that he had no money with him at the time and he was a priest and was leading a life of a recluse and in other words, he had no connection whatsoever with the wordly affairs or with the worldly matters. The issue concerning limitation was also answered by the Appellate Court in favour of the plaintiff by holding that as the defendant had set up a plea of adverse possession, limitation will have to be considered in accordance with Art. 65 of the Limitation Act and as the suit had been filed by the plaintiff within 12 years of the refusal on the part of the defendants to hand over possession of the suit property to the plaintiff, the suit as such was within time. 7. It is on these reasoning the Lower Appellate Court held that the findings recorded by the trial Court had to be reversed and consequently, the Lower Appellate Court did reverse the finding of the trial Court and allowed the appeal filed by the plaintiff and the suit was decreed. Aggrieved by the said decision of the lower Appellate Court, the defendants are in appeal before this Court. 8. The following substantial questions of law has arisen for consideration in this second appeal :- 1. Whether Ex. P2 dated 5-4-1944 executed by Lawrence Veigas in favour of defendant No. 1, which is a Settlement Deed in favour of defendant No. 1 can be issued to be benami and for the benefit of her children? 2. Whether in the case of a Settlement Deed, a plea of benami can be set up? 3. Whether in the case of a sale which takes place under a compromise in O. S. No. 8/1947, a plea of benami can be set up by the plaintiff?;