TaxTMI 
TaxTMI 
2022 (3) TMI 1612
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....ount was agreed to be adjusted and the balance sum of Rs. 250/- was agreed to be paid by way of cash. Accordingly, a registered sale deed dated 26.6.1930 (Ex.A1)came to be executed by the said Sriramulu Reddy and the name of the purchaser was shown as P. Chinnamma Reddy, who is none other than the brother in law of the father of the 1st plaintiff. The name of the father of the 1st plaintiff is Jayarama Reddy. According to the plaintiff, there was a dispute between Jayarama Reddy and his brother Venkatarama Reddy during the relevant point of time and that is why the property was purchased in the name of Benami, P. Chinnamma Reddy. 2. It is stated that the father of the 1st plaintiff was in exclusive and uninterrupted possession and enjoyment of the suit property and he was cultivating the land and was also paying the kist in his own name. According to the plaintiff, this understanding was duly recognised and the said Chinnamma Reddy nowhere showed or exhibited that he is the owner of the suit property. Even the Municipal Councillor, Ambur proposed to purchase a portion of the suit property in the year 1956 and recognised the father of the 1st plaintiff as the owner and it was ref....
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....gift deed was also executed by the defendants who had the right and title over the suit property. Accordingly, the defendants sought for the dismissal of the suit. 8. It can be safely concluded that only defendants 4 to 6 contested the case effectively and none of the other defendants filed any written statement. Respondents 7 to 11 are the legal representatives of the 4th defendant. Respondents 2 to 6 are the legal representatives of the 6th defendant and the 1st respondent in this Second Appeal is the 5th defendant. The 3rd defendant in the suit is the 12th respondent in the Second Appeal. The 13th and 14th respondents are the legal heirs of the 1st defendant and the 15th respondent is the 9th defendant in the suit. 9. The Trial Court passed a Judgment and Decree dated 11.11.2005 and decreed the suit as prayed for. Thereby, the plaintiff was declared to have absolute title in the suit property and the defendants were directed to deliver possession to the plaintiff within six months. Aggrieved by the same, the defendants filed A.S. No.4 of 2009 before the Sub Court, Vaniambadi and the Appeal was dismissed by Judgment and decree dated 4.3.2010 and thereby the Judgment and Dec....
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....Second Appeal is allowed setting aside the judgments and decrees of both the Courts below and the matter is remitted back to the first appellate Court as set out supra. No costs. Consequently, connected miscellaneous petition is closed". 11. On remand, the Appellate Court allowed the parties to let in additional evidence and thereby the plaintiff examined three additional witnesses viz., PW2 to PW4 and marked additional documents, Exhibits A-59 to A-67. PW1 was also recalled for further cross examination. Similarly, on the side of the defendants, DW1 to DW 3 were examined and B1 to B23 were marked. That apart, X1 to X3 which were the extracts from the cultivating tenants register, A Register and Town Survey Field Register were also marked through PW2 and PW3. 12. The Lower Appellate Court on re-appreciation of the entire oral and documentary evidence and after dealing with every issue that was framed by the Trial Court, passed a Judgment and decree dated 24.09.2012 allowing the appeal and thereby the Judgment and Decree of the Trial Court was set aside. Aggrieved by the same, the plaintiff has filed the Second Appeal. 13. When the Second Appeal was admitted, the following ....
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.... the letters issued by the Municipal commissioner to Jayarama Reddy requesting to sell a portion of the property were marked as Exhibits A34 and A35. That apart, Exhibits A36 to A41 were marked to show that the neighbours around the suit property always showed one of the boundary as the suit land belonging to Jayarama Reddy. The 6th defendant who claimed to be a cultivating tenant was also disproved through Ex.X1. • Insofar as the relationship of the parties is concerned, Chinnamma Reddy is the brother in law of Jayarama Reddy and he is the maternal uncle of the Appellant and the brother of the 2nd plaintiff. Considering the close relationship, Chinnamma Reddy acted as the Benami of Jayarama Reddy. • With regard to the motive for the Benami transaction, it was specifically pleaded in the plaint itself that there was a misunderstanding between Jayarama Reddy and his brother Venkatarama Reddy and therefore Jayarama Reddy thought it fit to purchase the suit property in the name of his brother- in -law. • With respect to the custody of the original title deed, it was with Jayarama Reddy till he died in the year 1964 and thereafter it was always in....
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....sidered each and every issue that was raised by the plaintiff and it had rendered the findings based on appreciation of evidence and there is no ground to interfere with those findings. The learned Senior Counsel concluded his arguments by submitting that the appellant misused his position as an advocate and the confidence that was reposed on him by the 1st and 2nd defendants and he took advantage of the original sale deed that was handed over to him while conducting the proceedings on behalf of the defendants and therefore this fact has to be taken into consideration by this Court and the appellant should not be permitted to grab the property which does not belong to him. Accordingly, the learned Senior Counsel sought for the dismissal of the Second Appeal. 17. This Court has carefully considered the submissions made on either side and the materials available on record and also the findings of the Lower Appellate Court. 18. The appellant/plaintiff while filing the suit, traced his title from his father Jayarama Reddy on the ground that he is the ostensible owner under the registered sale deed dated 26.6.1930 and Chinnamma Reddy was only a name lender. In short, the plaintiff....
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....S. Shah [(1996) 4 SCC 490]. It has been held in the judgments referred to above that the question whether a particular sale is a benami or not, is largely one of fact, and for determining the question no absolute formulas or acid test, uniformly applicable in all situations can be laid. After saying so, this Court spelt out the following six circumstances which can be taken as a guide to determine the nature of the transaction: "(1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale." 20. The above judgment has been applied in all the subsequent cases whenever the Court deals with a case which involves benami transaction. Law always presumes that the name of the person which is found in the document is taken to be the owner of the property that is dealt wi....
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.... by way of a Second Appeal and this Court found that the Trial Court went off on a tangent and decreed the suit without any discussion. Therefore, considering the fact that the matter was already pending for nearly 30 years even at the time when the Second Appeal was instituted, this Court thought it fit not to remand the case to the Trial Court and the case was only remanded to the First Appellate Court. The First Appellate Court being the last court of fact, was virtually made to decide the case like an original suit by recording further evidence and by letting in additional evidence from both sides. 23. The learned Counsel for the appellant was vehemently urging that the Lower Appellate Court did not even formulate the points for consideration. This issue raised by the appellant was also framed as an additional substantial question of law. A careful reading of the judgment of the Appellate Court shows that the Appellate Court had dealt with every issue that was framed by the Trial Court since the Trial Court did not discuss any of these. Hence, the Appellate Court not formulating the points for determination becomes irrelevant since the Appellate Court took pains to discuss e....
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....reciated the evidence before rendering its finding. Therefore while considering these two substantial questions of law, this Court has to carefully look into the finding of the Lower Appellate Court on each issue. 27. For proper appreciation, the issues and the additional issues that were framed by the Trial Court and taken up for consideration by the Lower Appellate Court are extracted hereunder: 1. Whether the Sriramulu Reddy owned a sum under a promissory note on 27.05.1927 and for discharge of the said debt he sold the suit property through the sale deed dt:26.06.1930 and delivered the possession is true? 2. Whether the 1st plaintiff's father had executed a sale deed dt: 26.06.1930 in favour of the said Chinnamma Reddy as benamidar is true? 3. Whether the 1st plaintiff's father was paying kist to the suit property and the patta stands in the name of the 1stplaintiff's father is correct? 4. Whether the suit property did not form part of the suit in O.S.No.54/1959 filed by Narayana Reddy, Chinnamma Reddy and others for partition is true? 5. Chinnamma Reddy was not in possession and enjoyment is the suit property and the ....
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....rt also took into consideration two more documents dated 25.6.1935 and 14.11.1935 wherein the father of the plaintiff had purchased properties in his own name. That apart,on 16.11.1940, he had also sold in his own name, a property in favour of one Krishnamachari. These were all contemporaneous documents which was taken into consideration by the Lower Appellate Court and it was found that the so called misunderstanding between Jayarama Reddy and his brother Venkatarama Reddy has been belied. This finding of the Lower Appellate Court has a lot of significance, since the motive/intention behind the benami transaction forms the foundation and as this foundation itself becomes weak, the structure that is attempted to be constructed by the appellant by pointing out to the other circumstances, is bound to crumble down like a pack of cards. 29. The Lower Appellate Court also took into consideration the fact that the plaintiff was brought up and living with his in laws and he had completed law and was practising as an advocate. The plaintiff denied the fact that he had appeared for the defendants in any proceedings. However, the Lower Appellate Court on considering Ex.B14, found that the....
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....rd, the Lower Appellate Court found that there was no proof to come to a conclusion that the sale transaction that took place through Ex.A1 cannot be held to be a benami transaction. 35. The Lower Appellate Court thereafter independently considered issues 3 to 6. The plaintiff came forward with the suit initially seeking for the relief of permanent injunction. He was not granted the interim relief of injunction and it was confirmed upto this Court in the Civil Revision Petition. Thereafter the plaintiff amended his prayer and sought for possession. While considering this conduct of the plaintiff, the Lower Appellate Court also took up the additional issues and it was found that there was absolutely no pleading in the plaint as to when the possession was taken by the defendants. The Lower Appellate Court found that this pleading becomes very important since the issue of limitation had been raised by the defendants and unless the plaintiff comes up with a clear case as to when the possession was taken over by the defendants, the relief of delivery of possession cannot be granted. To substantiate this finding, the Lower Appellate Court also took into consideration the judgment of t....
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....relevant evidence. In the result, the decree of the High Court is set aside and the appeal is allowed with costs throughout." 40. Despite the aforesaid admonition of the Supreme Court matters did not improve. The Law Commission, in its 54th Report, took note of the grim picture observing that the High Courts in some states were automatically entertaining second appeals where the judgment under appeal had reversed the judgment of the trial court. Pursuant to the aforesaid recommendations of the Law Commission of India, the the Code of Civil Procedure (Amendment) Act, 1976 amended Section 100 of the Code and circumscribed the power of the High Court to entertain a second appeal on the existence of a substantial question of law. Within the narrow jurisdictional parameters of Section 100, an interference on facts was permissible only in cases where it was shown that the appreciation of facts by the Courts suffered from perversity. 41. In S.R. Tewari v. Union of India, (2013) 6 SCC 602, the Supreme Court formulated the following test of what constituted perversity under Section 100 of the Code: "The findings of fact recorded by a court can be held to be perverse if the findings ha....
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.... Court to admit the appeal on any such question much less answer it in favour of the defendant." 44. Thus, an interference on facts is a forbidden zone in a second appeal unless the appellant is able to make out a case that the appreciation of evidence suffers from any form of perversity. As a natural corollary, sans any perversity, merely because an alternative view is possible on a reading of the evidence, that, by itself, would not constitute a legally valid ground for interference under Section 100 of the Code. 45. In Thiagarajan v. Venugopalaswamy B. Koil, (2004) 5 SCC 762, the Supreme Court sounded the following note of caution: " In the present case, the lower appellate court fairly appreciated the evidence and arrived at a conclusion that the appellants' suit was to be decreed and that the appellants are entitled to the relief as prayed for. Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material. To say the least the approach of the High Court was not proper. It is the oblig....