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Muniappa Mudali Vs. Thangavelu Mudali and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1937Mad362; 173Ind.Cas.387
AppellantMuniappa Mudali
RespondentThangavelu Mudali and ors.
Cases ReferredBalaram v. Naktu
Excerpt:
- venkataramana rao, j.1. the suit is for rectification of a sale deed dated 9th march 1926, executed by the defendant in favour of the plaintiffs. plaintiffs 2, 3 and 4 are the sons of plaintiff 1. the plaintiffs owned in house no. 50, akkanampalayam street, conjeevaram, the front or street portion (50-a) and the back portion (50-c), the middle portion belonging to a dayadhi of theirs. the plaintiffs mortgaged both the portions of the house owned by them to the pillapalayam co-operative society. the society brought the mortgaged property to sale through court. the case of the plaintiffs is that plaintiff 1 under an arrangement with the defendant had the property purchased in the defendant's name with funds provided by him, that symbolical delivery was obtained and in spite of such delivery.....
Judgment:

Venkataramana Rao, J.

1. The suit is for rectification of a sale deed dated 9th March 1926, executed by the defendant in favour of the plaintiffs. Plaintiffs 2, 3 and 4 are the sons of plaintiff 1. The plaintiffs owned in house No. 50, Akkanampalayam Street, Conjeevaram, the front or street portion (50-A) and the back portion (50-C), the middle portion belonging to a dayadhi of theirs. The plaintiffs mortgaged both the portions of the house owned by them to the Pillapalayam Co-operative Society. The Society brought the mortgaged property to sale through Court. The case of the plaintiffs is that plaintiff 1 under an arrangement with the defendant had the property purchased in the defendant's name with funds provided by him, that symbolical delivery was obtained and in spite of such delivery the plaintiffs continued in possession. On 9th March 1926 the defendant conveyed the property to the plaintiffs by a sale deed bearing the said date, but by a mistake the street portion was omitted to be included in the description given in the sale deed of the property and hence the suit was filed by the plaintiffs. The relevant allegations in the plaint are to the following effect:

6. Subsequent to the aforesaid execution proceedings, as the suit property was purchased benami in the name of the defendant in the Court auction, the defendant in pursuance of an arrangement among both parties sold away the property on 9th March 1926 to plaintiff 1.

8. As the suit property consists of two portions one portion has been omitted from the said sale deed either out of fraudulent intention or by mistake. But it was only on the understanding that the property auctioned should be reconveyed in entirety that the sale deed was executed.

2. The defence was a total denial of the benami purchase and that only the back portion was intended to be sold by a contract subsequent to the sale and there is no mistake or fraud as alleged in the plaint. The only issue framed was 'whether the item in question was intended to be included in the sale'. The learned District Munsif came to the conclusion that the back portion alone was intended to be sold and not the front portion. The learned Subordinate Judge reversed his decree and held that both the portions were intended to be sold. His findings were that the entire consideration money for the auction purchase was provided by plaintiff 1, that the understanding was that both portions should be conveyed, that in pursuance of the said understanding the sale was effected but by mistake the street portion was omitted and that the property continued in possession of the plaintiffs in spite of the Court sale and delivery. Against this decision the present second appeal has been preferred. It was contended on behalf of the appellant that the suit is barred by Section 66(1), Civil P.C. Section 66(1) is in these terms:

No suit shall be maintained against any person claiming title under a purchase certified by the Court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims.

3. The section has to be strictly applied. Its object is to prohibit on grounds of public policy a suit against the certified purchaser on the ground specified in the section. It does not render benami transactions illegal. If the cause of action is not based on the benami purchase but on a contract, or title acquired subsequent thereto, Section 66 is not a bar. In Vadivelu Mudaliar v. Peria Manicka Mudaliar AIR 1920 PC 30, where a contract subsequent to the purchase at the Court sale was upheld though it was in pursuance of an arrangement prior to the sale, the Judicial Committee observed that if the matter stood only on the original arrangement there may be some difficulty created by the section and held:

But whatever doubt might be caused by the character of the original agreement is removed by the events which happened after the sale.

4. In this case the case of the plaintiffs is not rested on the fact of the benami purchase or a mere prior agreement by the defendant to convey. It is based on a conveyance subsequent to the Court sale. The cause of action is that the conveyance actually executed does not embody the real intention of the parties and the aid of the Court is sought to rectify the deed to carry it out. The operative portion of Ex-A, the sale deed dated 9th March 1926, is:

I have on this date sold to you the undermentioned property for Rs. 400 and have on this date received the entire amount in cash. Hence you shall from this date take possession of the undermentioned house absolutely.

5. In the description of the property in the schedule to the deed, the first portion of the said description runs thus:

House comprised in Town Survey No. 1395 in your enjoyment after purchase thereof by me on your behalf on 8th November 1912 in the auction held by the Court.

6. But the later portion of the description which gives the boundaries and measurements refers only to back portion of the house and not to the front portion thereof. Therefore the case of the plaintiffs is that what was intended to be sold and was sold is the property purchased in Court auction described in the beginning of the description of the property in the deed and by mistake the description of the street portion was not added. Thus the cause of action is the title under the conveyance, an event which happened subsequent to the Court sale. The fact that the basis of the contract embodied in the sale deed is the prior benami purchase does not affect the title obtained under the conveyance: vide Ram Chandra v. Jaith Mal : AIR1934All990 and Allibhai v. Dada AIR 1931 Bom 578. Mr. Bhashyam relied strongly on the decision of the Privy Council in Balaram v. Naktu AIR 1928 PC 75. But in that case their Lordships had not to deal with a case of a subsequent conveyance and a title arising therefrom. I am therefore of opinion that Section 66 does not bar the suit. In the result the second appeal fails and is dismissed with costs. Leave refused.


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