1. This was a suit brought by one Kulandaivelu Pillai, the adopted son of Muthukumara Pillai, for the recovery of possession of the suit lands which, as he alleged, had been trespassed upon by the 2nd defendant in October, 1914. The appeal really hinges on the effect, if any, to be given to Ex. 1. Ex. I. purports to be a sale deed, dated 8th June, 1899, executed by Muthukumara Pillai, in favour of his son-in-law Ramaswami Pillai, the 1st defendant, and, as alleged by the plaintiff, was a benami sale-deed with no consideration. It was executed for a certain purpose set out in paragraph 5 of the plaint. The defence of the 1st defendant was that the sale-deed, Ex. I, was a perfectly valid deed and a proper price had Been paid for the lands in question. The finding of the District Munsif is that no consideration was paid by the 1st defendant for Ex. I and that when it was executed it was intended only to be a nominal transaction. That being so, the learned District Munsif went on to find that, in spite of these findings, Ex. I could be used long afterwards, namely, in 1910, by way of gift or rather to give effect to a document which was originally a nominal transaction but which had ceased to be such and which had been given effect to either before or about the time of the adoption of the plaintiff. There is some evidence that the father-in-law Muthukumara Pillai did intend to benefit his son-in-law and his daughter in some way, for instance, he effected a change of patta with the Revenue authorities and gave them possession of the lands. Ex. I was executed, as found, with the intention of being a purely nominal transaction, that is to say, of having no legal effect. Can it then be said that the executant of this nominal transaction, by a change of intention, can afterwards use it for a transaction which would be valid in law? In my opinion, there are several very obvious objections to the re-employment, if one may so call it, of a document of this description. There are evasions of the Stamp law, the Registration Law and the fiction that you are to regard the recitals in Ex. I as non-existent and as conferring what is practically a gift on the person to whom Ex. I is handed over. We have been shown no authority by which the executant of a document executed with one intention can by change of mind utilise that document for a transaction of a wholly different character. There is another very short objection to this second appeal and that is this, that this case was never set up in the pleadings or the issues but has apparently been found by both the lower courts from motives of sympathy with the daughter and son-in-law of Muthukumara Pillai. It seems to me that such is out of place in a second appeal and we must strictly confine ourselves to the question of law that has been raised and for which, as I say, no authority has been cited. A case has been quoted by Mr. Vaz, the learned Counsel for the appellant, from Bai Motivahoo v. Purshotam Dayal ILR (1904) B 306 an expression of opinion of Sir Lawrence Jenkins, which is perhaps as near as one will get to anything in the reports. The cases on gift or long possession amounting to evidence of gift quoted by the learned vakil for the respondents do not seem to me to have any bearing on the present case where the evidence given on the perfectly strait forward and simple case set up in the pleadings and the issues has been directed by both the lower courts to this finding of a re-utilisation of Ex. I, for giving it the effect of a gift deed. For these reasons, I think the second appeal must be allowed with costs throughout.
2. I agree. I only wish to add that when a document is executed without the intention of conveying title by one person in favour of another, it cannot afterwards be used for the purpose of conveying title merely because one of them changes his mind and wants the document to be operative. When a document is once executed as a nominal document, that is to say, without intending to convey any title, it cannot afterwards be used for the purpose of conveying title