In O.S. Appeal No.7 of 1909
1. The question for decision is whether the purchase of the house in question in the name of Subbaya was benamee for the benefit of Kondiah, his father-in-law. Kondiah could not purchase the properties in his own name as he was one of the trustees to whom this and other properties were assigned by their owner for sale.
2. It is proved that the purchase-money was paid by Kondiah though it is debited in his accounts to Subbiah. No accounts of Subbiah, if he had any, are produced to show that any money was due to him by Kondiah. Subbiah's family accounts make no reference to this payment or transaction. There is evidence that Kondiah received the rent in 1889 from the tenant-in-possession soon after the purchase and during the life-time of Subbiah. There is also evidence that in 1892, Kondiah obtained a decree for rent. Though this was after Subbiah's death and Kondiah was one of the executors of the Will, this evidence is not without weight when considered with Exhibit Z 3 proving receipt of rent in 1889.
3. The Small Cause Court record does not show that the suit was brought by him as an executor. Then there is the important fact that in 1897. the 1st defendant sued the representatives of Kondiah and the plaintiff for specific performance of an agreement of sale entered into between him and Kondiah. Ramacharlu, the only surviving executor of Subbiah's Will, was a party to the suit. The plaintiff was represented by a guardian. Specific performance was decreed, and it was held therein that the property belonged to Kondiah. Even if not res judicata, it is certainly strong evidence against the plaintiff's claim. It is difficult to believe that neither Ramacharlu nor the plaintiff's guardian was aware of the truth. They did not contest the claim. In the Police proceedings that preceded the suit, the question had been distinctly raised. We agree with the learned Judge and dismiss the appeal with costs.
In Criminal M.P. No. 174 OF 1910.
4. An application was made on behalf of the appellant to be allowed to adduce fresh, evidence alleged to have been discovered after the filing of the appeal. Following the decision in Krishnamachariar v. Narasimhachariar 31 M. 114 : 3 M.L.T. 308. we declined to allow fresh evidence to be adduced. We also declined to refer to a Full Bench the question decided in Krishnamachariar v. Narasimhackariar 31 M. 114 : 3 M.L.T. 308. The petition is also dismissed with costs.