(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree of the Court of the Subordinate Judge, Padmanabhapuram, passed in A.S.No.55 of 2001, dated 11.06.2004 confirming the judgment and decree of the Court of the District Munsif-cum-Judicial Magistrate, Eraniel, passed in O.S.No.293 of 1996, dated 14.03.2001.)
1. The legal representatives of the first defendant in the suit in O.S.No.293 of 1996 on the file of the District Munisif Court, Eraniel, are the appellants in the above second appeal.
2. The first respondent in this appeal filed the suit in O.S.No.293 of 1996 for partition of his share in suit schedule items 1, 2, 4 and 5 and 8/11 share in suit schedule 3rd item of the property.
3. The case of the plaintiff is that the suit items 1 and 2 were jointly purchased by the plaintiff and the first defendant under different sale deeds. The plaintiff further stated that the suit items 4 and 5 are the ancestral properties belong to both the plaintiff and the first defendant. As against the third item of suit property the claim of plaintiff is that out of 11 cents, 8 cents was purchased by the plaintiff and three cents was purchased by the first defendant. The plaintiff also claimed exclusive right in respect of the house that was constructed in suit first item. According to the plaintiff, the building in suit first item was constructed by the mother of the plaintiff and the first defendant and that his mother during her life time had gifted the house in his favour.
4. The suit was contested by the first defendant claiming exclusive right in respect of items 1 and 2 in the suit schedule. It is the specific case of the first defendant that the suit items 1 and 2 were purchased out of the earnings of the first defendant and that the plaintiff is only a Benami by stating that the plaintiff was then only a minor. The first defendant pleaded that the plaintiff had no earning or income or wherewithal to purchase the suit schedule items 1 and 2 and that therefore, he is the exclusive owner of the second item of suit properties. The first defendant admitted that items 4 and 5 of the suit properties are the ancestral properties and admitted the share of the plaintiff in item 4 and 5 and claimed exclusive right even in respect of item No.3. It was also the contention of the first defendant that he has title by adverse possession in respect of the items 1 to 3 in the suit properties.
5. The trial Court after framing necessary issues rejected the case of the first defendant in respect of items 1 to 3 holding against the first defendant. The trial Court found that the suit properties items 1 and 2 were purchased by the mother of the plaintiff and the first defendant in their favour and that both plaintiff and the first defendant are entitled to equal share. The trial Court also held that the plea of Benami was not proved by the first defendant. With regard to third item, the trial Court held that the plaintiff is entitled to 8 cents out of 11 cents. Since the first defendant has admitted the share of plaintiff in respect of items 4 and 5, the suit was decreed. Though the plaintiff claimed exclusive right over the building constructed in the suit first item, the trial Court disbelieved the case of the plaintiff and granted a decree for partition in all the suit properties.
6. The lower appellate Court also agreed with the view expressed by the trial Court on all issues and confirmed the judgment of the trial Court by its judgment and decree dated 11.06.2004. Aggrieved by the judgment and decree of the lower appellate Court in A.S.No.52 of 2001, the first defendant preferred the above second appeal. Since the first defendant died during the pendency of this second appeal, the other appellants namely appellants 2 to 5 are impleaded as the legal representatives of the first appellant. The second defendant was impleaded as a purchaser of item 5 from first defendant. He was impleaded as second respondent in this second appeal. He died pending suit and third respondent herein was impleaded as the legal representative of second respondent. The second respondent though died during pendency of suit, the cause title appears to be amended only before this Court.
7. At the time of admitting the second appeal, the following substantial questions of law were framed:
(1) Whether the Courts below are right in not dismissing the suit on the ground that the suit was barred by Order IX, Rule 9 of C.P.C. on the earlier suit filed by the same plaintiff as O.S.No.73 of 1987 was dismissed for default?
(2) Whether the findings of the lower Court that the first defendant could not pleaded benami as the same was prohibited under Benami Transaction (Prohibition) Act, 1988, even though the documents title were long prior to the date of a Act and the Act itself was not retrospective as held by the Apex Court in (2000) I SCC Page 459?
8. The learned counsel for the appellants strenuously argued that the plaintiff / first respondent has filed the suit in O.S.No.73 of 1987 before the District Munsif Court, Eraniel, for the same relief and the said suit was dismissed for default. In such circumstances, the subsequent suit for same relief in O.S.No.293 of 1996 is not maintainable by virtue of the specific bar under Order IX, Rule 9 C.P.C.
9. The learned counsel for the appellants then referred to the judgment of the appellate Court wherein the appellate Court has also found that the first defendant cannot plead Benami in view of the specific provision under Benami Transactions (Prohibition) Act, 1988. He relied upon the judgment of the Hon'ble Supreme Court, in the case of C.Ganagacharan v. C.Narayanan reported in (2000) 1 SCC 459 and in the case of Sankara Hali and Sankara Institute of Philosophy and Culture v. Kishori Lal Goenka and another through LRs reported in (1996) 7 SCC 55. In the judgments relied upon by the learned counsel for the appellants, the law has been settled that the provisions of Benami Transactions (Prohibition) Act, 1988, are not applicable to transactions prior to the commencement of Benami Transactions (Prohibition) Act, 1988.
10. With regard to the first submission on the question of maintainability of the suit for partition on the ground of bar under Order IX, Rule 9 C.P.C., the arguments of the learned counsel for the appellants is not sustainable in view of the position that the bar under Order IX, Rule 9 C.P.C. is not applicable in a case where the suit is for partition. Since the suit for partition only brings about severance of status and the cause of action continues till there is actual partition, the provision, namely, the bar under Order IX, Rule 9 C.P.C., was held to be inapplicable in several decisions of this Court.
11. The following are the binding precedents on this point.
(1) Ramasesha Iyer v. C.V.Ramanujachariar reported in AIR 1935 Madras 458.
(2) Asha Sharma v. Amar Nath reported in AIR 2003 HP 32.
(3) V.Ponramu v. B.Usharani and 3 others reported in(2009) 1 MLJ 126.
(4)Balamani and another v. S.Balasundaram reported in(2009) 4 MLJ 218.
12. Thus the first question of law raised by the appellants is answered against them holding that the present suit is maintainable and that the bar under Order IX, Rule 9 C.P.C., is not applicable when the earlier suit and the present suit are for partition. Though the second question of law raised by the appellants has to be answered in favour of the appellants by holding that the plea of Benami is available in respect of a transaction which was prior to the commencement of Benami Transaction (Prohibition) Act, 1988, the first defendant has not established the transactions in respect of items 1 and 2 as Benami Transactions by proper evidence. Both the Courts have also gone into the issue and found that the first defendant has not proved his case that the properties in items 1 and 2 were purchased Benami. It is an admitted fact that the items 1 and 2 were purchased jointly in the name of plaintiff and the first defendant, who are the brothers. Though the plaintiff was only a minor at the time when the properties were purchased, the first defendant also was in his younger age. The first defendant failed to prove any independent source of income. One of the sisters of plaintiff who was examined as P.W.2, has given evidence to show that the properties described as items 1 and 2 in the suit schedule were purchased out of the money provided by the mother of plaintiff and first defendant by creating mortgage in respect of her own property. The plea of Benami is to be proved by satisfactorily explaining the ingredients. First of all, the first defendant has not proved his source for mobilising the funds. Secondly, the reason for buying the property jointly in the name of plaintiff and first defendant was not explained by the first defendant. Above all, the suit properties were enjoyed by both plaintiff and first defendant right from day one is amply proved by various documents. As a matter of fact, the building was constructed by the mother of the plaintiff and the first defendant and the assessment of the building was also standing in the name of mother. In such circumstances, the findings of the Courts below are unassailable and the plaintiff is entitled to partition in the suit properties. However, it is made clear that both the plaintiff as well as the defendant are entitled to equal share in respect of the building constructed over the first item. I find no reason to interfere with the judgment and decree of the Courts below and hence, this second appeal is dismissed. However, there is no order as to costs. Consequently, the connected miscellaneous petitions are closed.