Decided on March 30,1955

Ramireddi Suryanarayana Reddi Appellant
Peketi Veerareddi And Three Others Respondents

Referred Judgements :-



UMAMAHESWARAM,J. - (1.)The plaintiff is the appellant. He sued for recovery of possession of the plant schedule lands on the ground that they belonged to his deceased wife, Punnamma, and that he succeeded to those properties as the heir at law on her death on 29th November, 1934. The defendants resisted the suit on the ground that the properties belonged to them as they were purchased by Madhavarayudu, the father of defendants 1 and 2, benami in the name of his daughter, Punnamma. They also contended that even if the properties belonged to Punnamma, they were entitled to them by reason of the will executed by her on 24th November, 1934, as also a custom prevailing in the community. The Subordinate Judge, Masulipatam, accepted the plaintiff's case and held that the plea of benami was not made out. He also found that the will was not true and the custom set up by the defendants was not true. In the result, he decreed the plaintiff's suit. The District Judge, on appeal, reversed the decree of the Subordinate Judge. The plea relating to he custom was not pressed before him. He found that the will was not true. He, however, held that the properties were not purchased out of moneys belonging to Punnamma. He found that in respect of moneys due to Madhavarayudu, he took a promissory note in her name in 1929 and that the sale deed for the suit properties was executed by the debtor in view of the money due by the debtor. He upheld the plea of benami and dismissed the suit. The plaintiff has consequently preferred the Second Appeal.
(2.)The learned advocate for the appellant, Sri M. Krishnarao, contended that, on the facts found by the District Judge, it must be held that the suit properties were gifted by Madhavarayudu in favour of his daughter Punnamma. He urged that in view of the fact that there was no motive suggested as to why the father should take a promissory note and the sale deed in her favour, a valid gift should be inferred from the fact of purchasing the property in her own name. Though at first I was impressed with his argument, after a careful examination of the facts, I have come to the conclusion that there is no substance in this contention. It was not alleged by the plaintiff that the suit properties were gifted to Punnamma. The case of the plaintiff was that the moneys lent under the promissory note belonged to Punnamma and that the properties purchased in her name belonged to her. The plea of the defendants was that the properties were purchased benami in the name of Punnamma by Madhavarayudu. What was stated in paragraph 4 of the written statement was only that the father had an intention to convey the lands in future but that they were neither actually conveyed nor possession of those lands delivered to her. The issue that was raised in the suit was whether the lands were taken benami for and on behalf of the defendant's family. The plaintiff who was examined as P.W. 1 stated in unequivocal terms that the land was not gifted by his father-in-law to her. He only deposed that his wife's money was utilised for purchasing the suit land. The appellate Court has clearly negatived the appellant's case that Punnamma's moneys were utilised for purchasing the suit lands. It is not now open to him to contend in the absence of a specific pleading and an issue, that the properties which really belonged to Madhavarayudu were gifted to her. Moreover, as already pointed out, he denied that there was any gift of the suit lands by his father-in-law to her. If the lands were gifted to her, she must have been in possession of the suit lands. In paragraph 28 of the judgment, the District Judge clearly found that the alleged lease of the land by Punnamma and by the plaintiff, after her death, to Madhavarayudu and the defendants, was false. The suit properties were allotted to the 2nd defendant at the partition in his family, and the patta was also transferred in his name. Ever since, the 2nd defendant has been in continuous and uninterrupted possession and enjoyment of the properties. It is also found by the District Judge that the Plaintiff was aware of the partition. It is unlikely that if the property was gifted to his wife and he succeeded to the properties on her death in 1934, he would not have asserted his rights till after the death of his father-in-law. I have therefore no hesitation, on the facts of this case, that Madhavarayudu did not gift the suit lands to his daughter when he purchased them in her name.
(3.)Section 82 of the Indian Trusts Act (II of 1882) runs in the following terms :
"Where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration.

Nothing in this section shall be deemed to affect the Code of Civil Procedure....."


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