V. Sethuraman, J.
1. The plaintiff in O.S. No. 1222 of 1972, in the Court of the District Munsif of Pattukkottai is the appellant in the present second appeal. He filed the said suit for mandatory injunction. The property in question in the suit originally belonged to one Kocharan's family. The property bears Survey No. 126|2-B. There was an earlier suit, O.S. No. 517 of 1942 filed by the plaintiff against one Ramaswami, the first defendant's elder brother, who Was the kartha of a joint family, and another in respect of the said survey number. The suit was decreed and in an appeal preferred by the said Ramaswami it was held that one Kulandayyan Nattarasan was entitled to the suit property. The plaintiff accepting this provision, obtained a sale deed from the legal representatives of the said Kulandayyan Nattarasan on 18th September, 1944, in the name of Govinda Velalar. Ramaswami Velalar then, filed O.S. No. 406 of 1946 in the Court of the District Munsif of Pattukottai impleading Govinda Velalar as the defendant. The said suit was transferred to the District Munsifs Court of Mannargudi and was numbered as O.S. No. 127 of 1947. The claim of Ramaswami Velalar was that the said Govinda Velalar, who was the defendant in the suit, was only his nominee. The trial Court negatived the said contention and the said decision was confirmed by the Appellate Courts. The plaintiff claimed that the said Govinda Velalar was only his benamidar and he, therefore took a release deed from the said Govinda Velalar on 5th January, 1970 under Exhibit A-5 so as to avoid any claim in future by the said Govinda Velalar. After the death of Ramaswami, his brother, the first defendant and his (Ramaswami's) sons became divided and this property was allotted to him. The property was divided into three plots, east-to-west for convenience and the defendants were said to have forcibly removed the ridges and put up a new ridge. It is in these circumstances, the plaintiff came forward with the present suit for declaration of his title.
2. The first defendant Arunachala Velalar is the father and defendants 2 and 3 are his sons. They denied that the plaintiff had any title to the suit property and they also took up a point of limitation.
3. The trial Court held that the plaintiff had established his title to the suit property and that the defendants had obliterated the ridge. It, therefore, granted a decree in favour of the plaintiff as prayed for. The matter was taken on appeal by the defendants, and the learned Subordinate Judge of Thanjavur, held, that the plaintiff had failed to establish his title to the suit property as well as the obliteration of the ridge pleaded by him. According to him, the plea of benami was not pleaded. The result was that the suit stood dismissed. The plaintiff came forward with the present second appeal and it was admitted on the following questions:
(1) Whether the lower appellate Court has misconstrued the pleadings in coming to the conclusion that the plaintiff's case put forward in the pleadings is not that Govinda Velalar, who executed Exhibit A-5, is a benamidar for him?
(2) Whether Extibit A-5, which is styled a release deed, is non est as held by the lower appellate Court?
(3) Even assuming that the title was with Govinda Velalar, the person who executed Exhibit A-5, whether the said document cannot convey title to the plaintiff?
4. The learned Counsel for the appellant Mr. V. Krishnan contended that the lower appellate Court has misconstrued the pleadings, that there was a specific case of benami put forward stating that Govinda Velalar was the benamidar of the plaintiff, that the benamidar had executed a release deed in favour of the plaintiff and that the. plaintiff was, therefore, entitled to the property and to the declaration as prayed for. The learned Counsel for the respondents, Mr. K. Yamunan, submitted that if it was a benami transaction in which the document had been taken in the name of Govinda Velalar, then, no release was necessary and that, if it was not a benami transaction the release would be incompetent to convey title. He refers also to the non-examination of Govinda Velalar as being fatal to the case. According to him, Exhibit A-5 cannot be construed as a conveyance and therefore, the plaintiff's prayers were rightly negatived by the lower appellate Court.
5. The lower appellate Court has proceeded on the basis of a patent error in thinking that there was no plea of benami at all put forward in the plaint. In paragraph 4 of the plaint it is stated:
To get the cloud of his title removed, the plaintiff obtained a sale from Krishna Nattarasan, the legal representative of Kulandayyan Nattarasan, whose title was upheld under a sale deed, dated 18th September, 1944. The said sale deed was, however, taken benami in the name of plaintiff's brother-in-law, Govinda Velalar. Possession continued with the plaintiff.
It is in the context of this pleading that in the later portions of the plaint Govinda Velalar is referred to as the 'nominee'. In these circumstances, the Court below is wrong in proceeding as if there was no plea of benami put forward in the plaint. Even if the plaintiff had not used the expression benami still the plaint can only be understood as putting forward a claim that Govinda Velalar was only a benamidar as the expression 'nominee' was used or could have been used only in the sense of a benamidar.
6. As pointed out by the Supreme Court is Sree Meenakshi Mills Ltd. v. Income-tax Commissioner : 1SCR691 :
'the word 'benami' is used to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies a transaction which is real, as for example, when A sells properties to B but, the sale deed mentions X as the purchaser. Here the sale itself is genuine, but the real purchaser is B, X being his benamidar. This is the class of transactions which is usually termed as benami. But the word 'benami' is also occasionally used, perhaps not quite accurately, to refer to a sham transaction, as for example, when A purports to sell his property to B, without intending that his title should cease or pass to B. The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed.
In the present case, the document dated 18th September, 1944, was taken in the name of Govinda Velalar. Govinda Velalar himself executed Exhibit A-5 and even in the opening it is stated that the said property had been purchased in his name benami. The following words used in the document will make it clear:
The document affirms the benami character and also the absence of any title to the releasor Govinda Velalar.
7. The question whether Govinda Velalar was a benamidar or not appears to have been mooted out even in the lower Court. In paragraph 9 of the trial Court's judgment there is a discussion about the benami character of the property. There is also reference to Govinda Velalar not being examined. P.W. 1 plaintiff stated in the witness box that Govinda Velalar had not been examined because he had become more or less dumb owing to ill-health. It is this portion of the evidence of P.W. 1 that was accepted as satisfactorily explaining the circumstances under which Govinda Velalar was not examined. In these circumstances, there can be no infirmity in the plaintiff's case that Govinda Velalar was a benamidar and that he (plaintiff) was the real owner of the property. There is on these facts no question of transfer of title in favour of the real owner.
8. The Supreme Court has held that even a release can operate in certain circumstances as a conveyance. The first decision of the Supreme Court was rendered in T. Munro v. K. Ramunni (1966) 1 S.C.J. 138 : A.I.R. 1966 S.C. 327. In that case there was a kanom right in favour of some of the parties. A document styled as a 'release deed' was executed in respect of the said kanom right and it recited that the releasor had received Rs. 935 from the releasee and that the entire rights, liabilities and claims belonging to the releasor under the kanom deed had been 'surrendered' to him. This document was construed as effecting a conveyance of the kanom right. At page 339, Bachawat, J., speaking for the Court, observed that the mere nomenclature of the deed and the amount of the stamp duty paid on it, though relevant, are not conclusive on the question of construction. At page 340 it was pointed out that a release may operate as a conveyance if the document clearly discloses an intention to do so. The same learned Judge, in Kuppuswami v. Arumgham : 1SCR275 , dealt with a document in which it was stated that the releasor did not claim any right whatever in the immovable properties mentioned in the instrument and that all the rights would be held and enjoyed undisputably with absolute rights by the releases. It was also declared in the document that the releasor had opt received any consideration. It was held that a registered instrument releasing the right, title and interest of the releasor without consideration may operate as a transfer by way of a gift, if the document clearly shows an intention to effect the transfer and is signed by or on behalf of the releasor and attested by at least two witnesses. At page 397 it is stated that a deed called a deed of release can, by using words of sufficient amplitude, transfer title to one having no title before the transfer. In that particular case, the deed was in favour of a person having no interest in the property and the document could not take effect as an enlargement of an existing estate. Even then, it was held that it was intended to be and was a transfer of ownership. But in the present case, when it was admitted by Govinda Velalar that he was only a benamidar, the property had really vested in the plaintiff. The deed of release was taken only for the purpose of silencing any dispute or perfecting his title. The intention of Govinda Velalar was clearly to efface whatever title he had as a benamidar and to declare that the plaintiff was the owner of the property. In the light of Exhibit A-5 it would clearly follow that the plaintiff would be entitled to the property. The defendants have no scrap of title to the suit property and the trial Court rightly decreed, the suit in plaintiff's favour. The finding of the Court below to the contrary cannot be sustained. The second appeal is accordingly allowed, but in the circumstances there will be no order as to costs.