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Vaithinatha Aiyar Vs. Vaithinathasawmy Aiyar and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in29Ind.Cas.970
AppellantVaithinatha Aiyar
RespondentVaithinathasawmy Aiyar and anr.
Excerpt:
benami transaction - ostensible vendee paying off debts and making ready cash payment--burden of proof. - .....case and the vendee from the nephew was the 2nd defendant. the subordinate judge dismissed this suit. appeal no. 135 of 1910 is the appeal against it by the uncle. in original suit no. 14 of 1908 the nephew sued the uncle with respect to a portion of the properties covered by the alleged nominal conveyance on the ground of trespass. the subordinate judge dismissed this suit. appeal no 194 of 1910 has been preferred against that decision.2. thus, in all these three appeals, the uncle vaithinatha aiyar is the appellant. the nephew, vaithinathasamwy aiyar, is the sole respondent in appeals nos. 134 of 1910 and 194 of 1910. he is the first respondent in appeal no. 135 of 1910, the second being the vendee.3. i shall deal with appeals nos. 135 and 194 of 1910 first. the facts are these: the.....
Judgment:

1. These two appeals and Appeal No. 134 of 1910 are against the decision of the Subordinate Judge of Negapatam in three different suits. Considerable inconvenience has been caused by their joint trial and by separate judgments not having been written in each of the cases. Original Suit No. 44 of 1906 was instituted by one Vaithinathasawmi Aiyar against his uncle, Vaithinatha Aiyar, to recover certain sums of money on two documents. The Subordinate Judge gave a decree in favour of the nephew. Appeal No. 134 of 1910 is against that decision. The uncle has appealed. Original Suit No. 2 of 1907 was by the uncle against the nephew for a declaration that the sale-deed of certain properties in the name of the nephew was benami for him, and for recovery of the properties. The nephew was the first defendant in this case and the vendee from the nephew was the 2nd defendant. The Subordinate Judge dismissed this suit. Appeal No. 135 of 1910 is the appeal against it by the uncle. In Original Suit No. 14 of 1908 the nephew sued the uncle with respect to a portion of the properties covered by the alleged nominal conveyance on the ground of trespass. The Subordinate Judge dismissed this suit. Appeal No 194 of 1910 has been preferred against that decision.

2. Thus, in all these three appeals, the uncle Vaithinatha Aiyar is the appellant. The nephew, Vaithinathasamwy Aiyar, is the sole respondent in Appeals Nos. 134 of 1910 and 194 of 1910. He is the first respondent in Appeal No. 135 of 1910, the second being the vendee.

3. I shall deal with Appeals Nos. 135 and 194 of 1910 first. The facts are these: The uncle had a divided brother who died leaving behind him his widow and a daughter, named Nagalakshmi Ammal. During the life-lime of the widow some of the properties now in dispute were conveyed to the father-in-law of Nagalakshmi Ammal. After the death of the widow, on the 27th September 1900 the father-in-law and Nagalakshmi Ammal sold the plaint properties by Exhibits A and B respectively to the nephew, Vaithinathasawmy Aiyar. In 1904 there were original proceedings under Section 145 in the Magistrates's Court between the uncle and the nephew regarding possession. The order of the Magistrate in these proceedings led to the two suits from which these appeals have been preferred.

4. The burden lies heavily upon the uncle to establish, that the sale to his nephew was benami for him. The circumstances relied upon by Mr. Venkatarama Sastri are these:

5. (1) the nephew has no properties at the village;

6. (2) the nephew admits that he did not make any inquiries regarding the necessity for the sale nor about the existence of the debts;

7. (3) the sale-deed was executed in the house of the uncle;

8. (4) the uncle looked after the cultivation;

9. (5) the properties were sold for a very low price; and

10. (6) the uncle was the nearest reversioner to Nagalakshmi Ammal.

11. From these circumstances we are asked to infer that it was never intended to confer any rights of property upon the nephew by the sale to him and that the uncle out of confidence allowed the property to be conveyed to the nephew, as he was then the nearest reversioner and did not desire it to be known that he had himself purchased the property. There is positive evidence in this case which I see no reason to disbelieve, that the nephew paid Rs. 4,000 to the vendee at the time of the conveyances. The balance of the purchase-money had to be paid to the creditors mentioned in the sale-deeds. The evidence shows that in the majority of cases the nephew discharged these debts, although some were paid by the uncle! That is explained on the ground that the uncle had the income of the property to account for. I see no reason to doubt that at the time of the sale the uncle and the nephew were friendly towards each other. It is also proved that the uncle was indebted to the nephew to a large extent, although a suit to recover the amount would have been time-barred. Further the uncle had no children. I conclude from these facts that the uncle intended the nephew to be the real purchaser of the property in order that his own indebtedness may be wiped off by this transaction. It is only when the nephew claimed payment of the barred debt in 1903, that the uncle thought of setting up a rival claim to the properties covered by Exhibits A and B. The circumstance to which the learned Vakil for the appellant has drawn our attention cannot, in the face of the positive facts proved in this case, lead to the inference that the sale was benami for the uncle. I agree with the Subordinate Judge in the conclusion at which he has arrived. The appeals will be dismissed with costs.


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