1. These appeals arise from two suits O. S. Nos. 22 of 1122 and 28 of 1123 tried and disposed of together by the Temporary Additional District Judge of Mavelikara. Govindan Raman the appellant in the two appeals was the plaintiff in O. S. No. 22 and the 1st defendant in O. S. No. 28. O. S. No. 22 of 1122 was a suit for redemption of 6 items of immovable properties which were outstanding on mortgages executed by a former karnavan of the plaintiff's farwad. Exts. C, D and E are three mortgage deeds of the years 1060, 1067 and 1072 respectively. Govinclan Kesavan the defendant in. O. S. No. 22 took an assignment of the mortgage rights in respect of items 1 to 6 under Ex. F dated 1-2-1084 and he was stated to have been in possession of these properties from that date. The equity of redemption of items 1 to 3 and some other properties were sold through the District Court of Mavelikara in execution of the decree in O. S. No. 150 of 1101 of the Quilon District Court, obtained against the farwad of the plaintiff and the defendant. The plaintiff purchased the same in court sale and on the strength of the title thus obtained, he sued for redemption of the 6 items of properties described in the plaint schedule. The defendant who was the Karnavan of the plaintiffs branch of the tarwad resisted the suit. His main contentions were that item No. 5 did not belong to the common tarwad but to the tarwad of the plaintiffs father that it was wrongly included in the mortgage deeds and that neither the mortgagees nor himself obtained possession of the same,
The same contention was raised about S. No. 62/ 9A and C included in item No. 6. It was also contended that the plaintiff purchased items 1 to 3 for and on behalf of his uncle Govindan Unni and his sister Janaki with funds belonging to them, that they were the real owners and that they should be im-pleaded. As regards items 4 to 6 it was further contended that the defendant who was the karnavanalone was entitled to redeem those items as the plaintiff had not purchased the equity of redemption of the same. The learned Judge allowed redemption of items 1 to 3 and dismissed the suit as regards items 4 to 6. The plaintiff was allowed to recover mesne profits from the date of decree at the rate of1 para of paddy per 1 cent of land per annum. The plaintiff has preferred A. S. No. 30 from this decree claiming redemption of items 4 to 6 also and the defendant-respondent has filed a memorandum of cross-objection.
2. O. S. No. 28 of 1123 was a suit instituted by Govindan Unni referred to earlier for specific performance and other reliefs. His case was that when the properties came up for sale in execution of O. S. No. 150 of 1101 the members of the tarwad met together and decided that the first defendant appellant should bid the properties in auction and that he should convey items 1 and 2 to the plaintiff on receipt of the auction amount. This arrangement is stated to have been confirmed after the date of salealso.
It was alleged that as per the above agreement, a sum of Rs. 1700 was paid by the plaintiff to the first defendant through the 2nd defendant and that the plaintiff utilised me same towards deposit of the auction amount. According to the plaintiff the proportionate auction amount in respect of items 1 and2 is only 10500 fanams. Therefore he claimed the balance amount from the first defendant.
In the alternative it was pleaded that if the firstdefendant was unwilling to pay the balance, the plaintiff was willing to purchase the items 3 and 4 in the plaint schedule. The trial court upheld the plaintiff's case in respect of item 1 and directed the 1st defendant to execute a sale deed for item No. 1 to the plaintiff within 7 days of obtaining possession of the same from the mortgagee. The plaintiff was also given a decree for recovery of a sum of Rs. 100 from the first defendant as balance found due on deducting the proportionate value of item No, 1 from the sum of Rs. 1700.
The suit was dismissed in other respects and the parties were directed to bear their costs. A. S. No. 31 has been preferred by the first defendant from this decree. The plaintiff 1st respondent has filed a memorandum of cross-objections in this case also. The two appeals were heard together.
3. The first point urged on behalf of the appellant was in respect of item No. 5 and S. No. 62/9A and C, the finding regarding which was that thesedid not belong to the tarwad of the plaintiff and the defendant but to the Tarwad of the plaintiff's father. It was argued that if this finding was wrong and that the court below ought not to have entered a findingregarding title to these properties in this suit which was one for redemption of mortgages and that in any event it was not open for the defendant who was an assignee of the mortgagees to deny the title of the mortgagor. Learned counsel for the appellant referred to several Exhibits in the case to snow that the defendant had on various occasions admitted having obtained possession of these items from the mortgagees.
We do not consider it necessary to decide the question whether these properties were rightly included in the three mortgages as it is unnecessary in view of our conclusion regarding next point, viz, whether the plaintiff who has not purchased the equity of redemption of items 4 to 6 is entitled to redeem items 4 to 6 from the defendant, the karnavan of the branch tarwad. It may however be pointed out that the finding that these properties belonged to another tarwad was unnecessary for the purposeof the suit and that the same has to be set aside. The question is left open.
4. Coming to the question whether the appellant is entitled to recover possession of items 4 to 6, we have come to the same conclusion reached by the trial Judge though on different considerations. As pointed out earlier, the plaintiff did not purchase the equity of redemption oi these items in court sale and the defendant who was in possession was admittedly the karnavan of the branch to which the plaintiff also belonged. The defendant who was unmarried died during the pendency of the suit in this court and his assets including the mortgage right have devolved on his branch. The position therefore is that the mortgage right as well as the equity of redemption now belong to the branch. The appellant had a contention that the main tarwad had not become divided and that this could not therefore be treated as a case in which the mortgagee acquired the equity of redemption in respect of items 4 to 6. The trial court has not entered any finding on the question whether the main tarwad had become divided or not. There was no specific issue on the point. However both sides adduced evidence on this question and on such evidence the only conclusion possible is that the main tarwad became divided into 6 branches.
The partition of a tarwad need not always be by a registered deed or a decree of a court. The members may agree to have a divided status and in the absence of a deed or a decree, the question whether there has been such a division has to be gathered from the subsequent conduct of the parties. Exs. VI, X, XX and XXXII are partition deeds in 4 out of the 6 branches constituting the main tarwad. This is a clear indication that the tarwad had become divided into branches some time before the execution of these deeds. Such division has been sworn to by D. W. 5 who is the appellant's brother. The appellant when he was examined as Pw. 3 admitted that the main tarwad had no common Karnavan at that time. This supports the defence case of division of the tarwad.
We have therefore, no hesitation in holding that the plea of division set up by the defendant has to be accepted. The appeal must therefore fail in respect of items 4 to 6 in the plaint schedule. In view of this conclusion, the question whether item 5 and S. No. 62/9A and C forming part of item 6 were covered by the mortgages is of no importance and does not call for decision.
5. The memorandum of cross objections filed by the defendant remains for consideration. The main point on which the decree is objected to by the respondent relates to the award of mesne profits. The learned Judge awarded mesne profits from the date of decree a.t the rate of 1 para of paddy per cent of land per annum, According to the respondents this rate is excessive. The defendant stated in evidence that the profits from 1 para of (?) land (14 cents) would not exceed 9 paras of paddy. Both sides produced documentary evidence to show the rent of other properties in the neighbourhood.
According to the lease deeds produced by the appellant the annual rent of such properties amounts to 1 1/2 paras of paddy per cent of land while the defendant's documents show the rate lower than that decreed by the learned Judge. The average of these was taken in fixing the rate of mesne profits and we do not see any reason to interfere with the same. It was also urged that mesne profits ought not to have been decreed from the date of the trial court's decree. No doubt there was justification for refusing mesne profits before that date as the plaintiff sought for redemption of all the 6 items in the schedule.
When once the rights and liabilities of parties were settled by the decree, there was no justification for not surrendering items 1 to 3 to the plaintiff.
There is no substance in the contention urged on behalf of the respondents that the plaintiff did not choose to execute the decree and that he could not therefore claim mesne profits. It was open for the defendant to surrender possession of the lands when the suit was decreed, especially as he had no objection to that part of the decree.
We do not therefore see any reason to interfere. The other point raised in the memorandum of cross objections relates to costs disallowed to the defendant. In the circumstances of the case the discretion exercised by the court below cannot said to be improper and we do not feel justified in interfering with the same. The memorandum of cross objections also must therefore fail.
6. A. S. No. 31 may now be taken up for consideration. As stated earlier O. S. No. 28 of 1123 which has given rise to this appeal was a suit for specific performance of a contract for sale of items 1 and 2 in the schedule attached to the plaint in this suit. These are items 1 and 3 in O. S. No. 22 of 1122. Govindan Unni, the plaintiff, sued on the allegation that there was a completed contract for the sale of these items to him and that he paid a sum of Rs. 1700 towards the sale consideration.
According to him, some members of his branch including himself, the karnavan of the branch, the appellant and Dw. 5 met together some time towards the end of Kumbhom 1120 and decided that the Tarwad properties which were being brought to sale in execution of the decree in O. S. No. 150 of 1101 should be purchased by members of this branch. The appellant, his sister Janaki and Govindan Unni expressed willingness to purchase the properties,
The sale was to take place on 1-8-1120 and on that day the karnavan, Govindan Unni, the appellant, his brother Gopalan and Kesavan Padmanabhan met together at the District Court of Mavelikara and decided that the properties should be bid in auction by the appellant and that he should thereafter sell items 1 and 2 to Govindan Unni and some other properties to Janaki on receipt of the proportionate auction amount. The appellant bid the properties in auction and he sent a fetter Ex. III to the Karnavan on 6-8-1120 confirming his willingness to sell item 1 to Govindan Unni on receipt of the proportionate auction amount. These are the main averments on which specific performance was sought.
The appellant denied the agreements as well as the alleged payment of Rs. 1700. The trial court upheld the plaintiff's case on this point and said that the appellant was bound to convey item 1 to tho plaintiff. Relief was confined to this item as the amount paid by the plaintiff was found insufficient for purchasing item 2 also and as the appellant had agreed in Ex. Ill to sell only item 1. It was also found that after paying the consideration for item 1, a balance of Rs. 100 out of the sum of Rs. 1700 remained with the appellant and the plaintiff was allowed to recover this sum from him.
Three points were raised in appeal, viz:
(1) That the suit is barred by Section 66 of the Code of Civil Procedure;
(2) That the contract set up by the plaintiff andthe alleged payment of Rs. 1700 are not true; and
(3) that even if the plaintiff is entitled to adecree, the apportionment of price made by the lowercourt is not correct.
7. As regards the first point the appellant's case is that Section 66 operates as a bar in asmucn as the suit is based on the allegation of a benami purchase by the appellant on behalf of the plaintiff. Reliance was placed on para 4 and relief B of the plaint in support of this argument. It must be stated that there are certain passages in the plaint which lend some support to this argument. It is stated in paragraph 4 that the understanding was that the appellant should bid the properties in auction for the benefit of certain members of his branch.
But the paragraph read as a whole shows that the plaintiffs case was that the appellant was to bid the properties and that he should thereafter execute sale deeds to the other members on receipt of the proportionate price. In paragraphs 5 and 6 of the plaint it is slated that after bidding the properties in auction the first defendant wrote a letter to the karnavan agreeing to sell the properties to the plaintiff and that in pursuance to this, the plaintiff paid a sum of Rs. 1700 to the appellant. This is the agreement of which specific performance is sought in the suit. The words referred to in relief B in the plaint are: (original in Malayalam script).
It was argued that what was thus alleged to have been paid by the plaintiff was a portion of the sale amount and that this confirmed the plaintiff's case that the first defendant purchased these properties as a benamidar. This passage in the plaint is capable of another explanation also because the undertaking in Ex. III was to convey item I to the plaintiff on receipt of the proportionate amount paid by the 1st defendant in auction.
As the price payable was a proportionate share of the amount for which the properties were bid, it cannot be said that Relief B in the plaint contains an admission that the purchase by the appellant was benami in character. The pleadings no doubt lack precision and clarity but the plaint as we read it is one for specific performance of the agreement mentioned in Ex. III. The events preceding the sale have been referred to in the plaint only for the purpose of establishing the probability of such an agreement. Shri K.K. Mathew learned counsel for the appellant urged that even if Ex. III contains such an undertaking, it is one in confirmation of a prior unenforceable agreement and that the infirmity affects the latter agreement also.
Reliance was placed on the decision in Suryanarayana v, Venkata Subbarao, AIR 1951 Mad 943 in support of this position. In that case, after stating that Section 66 which places a procedural bar to the enforceability of a claim based on benami which is otherwise quite legal, valid and effective, has to be strictly construed, Rajamannar C. J. observed:
'There may be a case in which A at the instance of B bids and purchases property at a court auction agreeing to convey the properly so purchased to B on payment of the amount which A had to pay for the purchase at the court sale or after the purchase the auction purchaser may agree with the plaintiff to convey the property to him for the same consideration for which he purchased at the court sale. In such cases the ostensible as well as the real title vests in the auction purchaser and the only right that the plaintiff seeks to enforce is a right founded on an agreement with the purchaser. But for the agreement the plaintiff would have no case.
The plaintiff could not in such a case invoke apart from the agreement the title which law confers on a person under Section 82 of the Trusts Act. On principle we see no difference between an agreement before the purchase and an agreement after the purchase so long as it is clear that the purchaser at the court auction is treated to be the real owner for the time being only subject to the performance of an agreement to convey the property to the plaintiff.
On the other hand, if the real purchaser is the plaintiff, in that he furnished the entire consideration and it was intended that the purchase should be for his benefit and the defendant was only a name lender, then a subsequent agreement under which the defendant acknowledging the title of the plaintiffagrees to execute a formal deed of conveyance to the plaintiff would make no difference. It is, so to say, not an agreement in the strict sense of the term as there is no consideration. The property already belongs to the plaintiff except in name and a promise to convey the properly to its real owner for no consideration cannot come within the definition of a contract in 2 Section (h) of the Indian Contract Act'.
The case law on the subject including the decision of the Privy Council in Vadivelu Mudaliar v. Periamanicka Mudaliar ILR 43 Mad 643: (AIR 1920 PC 30) which was also cited before us has been exhaustively dealt with in the judgment and the conclusion was summarised thus:
'It appears to us that the real test is this. If the plaintiff's title depends ultimately on the benami nature of the transaction, then Section 66 would certainly be a bar, but if the plaintiff's title is dependent upon other facts and circumstances like, for example, the application of the general law or the carrying out of a separate contract, then Section 66 would not be a bar',
On the facts it was found in that case that the original purchase in court sale was benami and it was held that Section 66 was an effective bar to the suit. The facts here are different. The evidence does not show that the purchase of the properties by the appellant was a benami transaction. No part of the consideration had been paid to the first defendant for depositing in court on the date of the sale. In fact the whole consideration was paid by the plaintiff after the date of the sale and after the appellant sent Ex. III to the Karnavan. Ex. III shows that what was intended was that the title obtained by the first defendant would be conveyed to the plaintiff on receipt of the consideration.
It cannot be held on the evidence that the plaintiff was the real purchaser at the court sale ana that the appellant was his benamidar or that the agreement embodied in Ext. III was an undertaking by the first defendant to cany out what he was already bound to do. Ex. III shows that the appellant was rather keen on retaining the properties purchased by him and that out of deference to the wishes of the kamavan he agreed to part with item 1 on receipt of the price. Reference was also made to the decision of the Privy Council in ILR 43 Mad 643: (AIR 1920 PC 30). That was 9 case in which 3 persons bid certain properties in court sale with funds provided by the owners of the properties, on the understanding that the properties were to be conveyed to them later. The agreement before the sale was followed by fresh contracts to convey the properties to the original owners. Their Lordships of the Judicial Committee held:
'....it is clear that Section 66 is not a bar to the plaintiffs' claim as for specific performance of the contract. Their case is not that the first defendant or Vythilingum or Dharmakartha Kandasami were merely benamidars, but that they were to he real purchasers, but they agreed to convey to the plaintiffs in each of these suits or to their predecessors in title such portions of the property for which (as we find) they had already paid or had to pay under that agreement the balance of the purchase money. That we think is a sufficient answer to the plea under Section 66, Civil Procedure Code'.
We do not see how this decision can help the appellant. Here the properties were bid in auction by the appellant with his own funds and after the purchase, he agreed to convey one of the properties to the plaintiff Until such conveyance was executed the appellant was the real owner of the properties and it is only on the basis of the later agreement that the plaintiff seeks relief. Ex. III shows thatthe appellant also treated himself as the real owner. Another decision referred to was that of the Allahabad. High Court in Bishan Dayal v. Kesho Prasad, AIR. 1937 All 176. The point decided in that case was that a distinction should not be drawn between, cases where the whole of the property purchased in court sale is claimed and where the claim is only in respect of a share of such property. As the plaintiff rests his case on the agreement subsequent to the court sale and as the original purchase by the appellant cannot be deemed to have been benami for the plaintiff, we are of opinion that Section 66 is no bar to the suit.
8. On the second question we feel no hesitation in accepting the findings of the trial Judge. Ex. HI of which material portions have been extracted in the judgment of the court below shows that the appellant agreed to convey title to the plaintiff. As regards payment of the sum of Rs. 1700 there is overwhelming evidence in support of the plaintiff's case. The witnesses who speak to the same have been believed by the learned Judge and no satisfactory reason has been shown for disbelieving them.
9. The only point which remains is whether the price was correctly fixed. The properties purchased were all paddy fields in the same locality and the learned Judge took the average price paid by the appellant as the basis for valuation. Though the appellant had a contention that the apportionment was not correct, he did not adduce any evidence regarding the relative value of the property to enable the court to come to a different conclusion. The-finding of the court below on this point also must therefore be confirmed.
10. The plaintiff 1st respondent has preferred a memorandum of cross-objections claiming item No. 2 in respect of which the suit was dismissed. This claim is not warranted by Ex. III and on that sole ground the respondent must fail. The memorandum of objections must therefore be dismissed.
11. In the result, A. S. Nos. 30 and 31 are bothdismissed with costs. The memoranda of crossobjections in the two cases are also dismissed withcosts.