1. The facts relating to this appeal may be set out very briefly. One Gopal Nayak died in the year 1900, leaving him surviving no son but only his daughter, one Kuppammal, and grandson by that daughter, one Ganga Nayak. That he left a Will seems undisputed, but the terms of this will are in dispute. Soon after the death of Gopal Nayak, his daughter Kuppammal and grandson Ganga Nayak began alienating various items of property pertaining to his estate. Exhibits C series and D series and 24, 34 series and 35, are all deeds of hypothecation or sale so made in the years 1901 and 1902. By a registered instrument marked F in the case, Kuppammal and Ganga Nayak purported to sell and convey to one Govindappa Nayak all the items of immovable property set out in Schedules 1 and 2 to the plaint. It also appears that some time after the death of Gopal Nayak, his daughter and grandson applied for succession certificate to the District Court of Tinnevelly and that the petition was opposed by or on behalf of the defendants on the ground that the deceased Gopal Nayak was undivided from his brother and nephews, and that all the property of the family having survived on his death to his brother and nephews he had no power of testamentary disposition over any of the properties, the subject-matter of the suit. These proceedings, however, were compromised finally by documents Exhibits A and B (Exhibits B being in form a deed of sale by Kuppammal and Ganga Nayak to the defendants of the properties which are under compromise agreed to be given over to them, and Exhibit A being a release and conveyance by the defendants in favour of Kuppammal and Ganga Nayak of all the other properties relating to the estate of Gopal Nayak). Early in the year 1917, both Kuppammal and Ganga Nayak died within a few days of each other, and, the question who died earlier is one for determination, Ganga Nayak died issueleas leaving only his widow Ovalammal who purported by a registered instrument bearing date the 2nd day of August, 1917, Exhibit G, to sell and convey to the plaintiff-appellant all the properties set out in the sons. 1, 2 and 3 to the plaint. The plaintiff's action is substantially for the recovery of these properties from the defendants.
2. The plaintiff's case is that Kuppammal and Ganga Nayak obtained these properties under the Will of Gopal Nayak, that Ganga Nayak was absolutely entitled thereto or at any rate became so after the death of Kuppammal and that therefore on his death Ovalammal, the plaintiff's vendor, inherited the properties and conveyed them to the plaintiff. No question arises now with regard to the capacity of Ovalammal as a Hindu widow to sell and convey the properties, the subject-matter of the suit because she is still alive, and if she was entitled to the properties, any alienation by her would be valid for her lifetime. The action is resisted by the main defendants who are the brother's sons of the deceased testator Gopal Nayak on the ground, firstly, that the sale to the plaintiff was only a benami transaction and that therefore the plaintiff was not entitled to maintain the suit, and secondly on the ground that as regards the properties in Schs. 1 and 2 to the plaint, the same having passed to Govindappa Nayak on the sale under Exhibit F, have been purchased by them under Exhibit VIII, dated 14th August, 1917, from Govindappa Nayak, and that as regards items 4 to 10 in Soh. 3 the same 'were never the properties of Gopal Nayak, but have all along been the properties of the defendants, and that as regards items 1 to 3, Schesule 3 to the plaint, Ovalammal never succeeded thereto because her husband Ganga Nayak, as a matter of fact predeceased his mother Kuppammal, and that therefore on the death of Kuppammal the property should be deemed to have reverted to the testator Gopal Nayak and become vested in his reversionary heirs, the defendants. As many as 21 issues were raised in the case and though the learned Subordinate Judge found most of the issues in favour of the plaintiff, he finally dismissed the plaintiff's suit on the ground that the sale to 'him by Ovalammal under Exhibit G was only, a benami sale, that there was no consideration the same and that therefore the' plaintiff was not entitled to maintain the suit.
3. The law with regard to the maintainability of suits at the instance of benamidars has been finally settled and set at rest by their Lordships of the Judicial Committee in the case of Gur Narayan v. Sheolal Singh A.I.R. 1918 P.C. 140 and followed by a Full Bench of this Court in Vaitheswarah Aiyyar v. Srinivasa Raghava Aiyyangar (1919) 42 Mad. 348 It has there been held that a true benamidar, that is a person who has merely lent his name to the transaction and is therefore a trustee holding a legal title without any beneficial interest in the property, can maintain a suit in his own name against at any rate all persons except the persons beneficially entitled.
4. The learned Subordinate Judge, at the conclusion of his discussion with regard to the sale-deed Exhibit G under which the plaintiff claimed, observes as follows : 'I have no hesitation in holding that this sale deed was merely got up with a view to fighting the defendants who were setting up their title, to these properties and that Ovalammal never intended to pass any property to the plaintiff. It is significant that Ovalammal herself has not been examined in this case. 'I hold on Issue 8 that the sale-deed dated 2nd August, 1918, by the said Ovalammal in favour of the plaintiff, though executed by her does not represent a genuine transaction and is not supported by consideration. I think that the mortgage in Ovalammal's favour is equally a sham transaction. This is enough to dispose of the suit according to the decision in Rajammal v. Madhava Yogi (1914) M.W.N. 117 which I cited.'
5. It seems to us that in this passage in this judgment the Subordinate Judge has confounded a sham transaction in respect of property, that is to say, a transaction in and by which no title of any kind. either legal or beneficial, is intended to be passed, with benami transactions properly so called, namely, transactions where the legal estate becomes vested in a certain person the beneficial interest therein remaining with the transfer or being vested In some third person who is called the real owner. The essence therefore of a sham transaction is that though a registered deed is brought into existence no title of any kind, either legal or beneficial is intended to be passed thereby to any person whatsoever, that is to say, the deed of transfer is not intended to effect any transfer of property. The difference therefore between sham transactions and benami transactions is one of intention. If the deed of transfer is made with the intention of placing the property in the name of third person, the intention clearly amounts to a transfer of the legal title and such a transaction can scarcely be called a sham transaction, but comes directly within the meaning of benami transactions properly so called.
6. Applying these principles to the case before us, we have to determine whether Exhibit G' under which the plaintiff as claimed as transferee to be entitled to maintain the suit, was a sham transaction as the lower Court has termed it. We agree with the Subordinate Judge in considering that the consideration set up for the sale-deed and all the circumstances scarcely point to there having been no real consideration for the same. We also agree with him that the sale-deed may have been merely got up with a view to fighting the defendants ; but if a sale deed is got up to fight certain third parties, the intention to be drawn from the transaction is irresistible that the legal title at any rate was intended to be passed by the transaction from the transferor to the transferee ; otherwise the very object of the transfer fails. As already stated, an intention to transfer the legal title to the transferee would be sufficient to transfer what could otherwise be a sham transaction into a benami transaction properly so called. The intention for the transfer found by the learned Subordinate Judge is therefore a sufficient finding of the intention to transfer the legal title to the plaintiff. The case of Rajammal v. Madhava Yogi (1914) M.W.N. 117 was clearly a case of a sham transaction. After the decision in Gur Narayan v. Sheolal Singh A.I.R. 1918 P.C. 140 it is impossible to hold that a mere benamidar cannot maintain a suit.
7. It would therefore follow that if we were in a position to accept the findings of the learned Subordinate Judge with regard to the other issues, we would be bound to grant a decree to the plaintiff, at any rate, with respect to some of the properties. But on behalf of the respondents the correctness of the decision of the lower Court with regard to the other issues has been strenuously canvassed and we have therefore to proceed to a consideration of the same. In order to succeed in action, the plaintiff has not only to show that under the deed of transfer to him he is entitled to maintain the suit but also the suit being one substantially in ejectment, to establish the title on which he has, claimed the properties. This raises the question of the title of his transferor Ovalammal. Ovalammal is said to have inherited all the properties claimed in the suit as the widow of Ganga Nayak. Ganga Nayak's title has been sought to be made out in two ways: firstly the case of the. plaintiff is that under the Will of his maternal grandfather Gopal Nayak he got an absolute title to the properties, the subject matter of the suit. In the second place such absolute title to all the properties is alleged to have accrued to him at any rate on the death of his mother Kuppammal who is alleged to have died a few days before him. As regards the title derived from the Will the Will itself has not been produced nor even any true copy of the Will. The non production of the-Will itself is not properly accounted for in the evidence on behalf of the plaintiff. If the plaintiff comes into Court setting up a Will and claiming certain properties on the ground of the dispositions con tained therein, he was bound to take: all steps necessary for the production of the Will and it is only if and when he should satisfy the Court about his efforts to get the original of the Will produced, he can be allowed to adduce secondary evidence especially oral evidence with regard to the contents of the document. We are also constrained to observe that the oral evidence with regard to the Will is of a most unsatisfactory character. ; Though there seems to be no doubt that a Will was left by Gopal Nayak, in the absence of satisfactory evidence with regard to the terms of the Will, we are unable to find that Ganga Nayak acquired an absolute title under the Will to the properties the subject matter of the suit. If, however, the case for the plaintiff should be looked upon as a claim to the effect that Ganga Nayak became on the death of Kuppammal absolutely entitled to all the properties in the same manner and to the same extent as if Gopal Nayak died intestate possessed of properties, or that Gopal Nayak's dispositions in the will were to the same effect, then it becomes necessary to consider the third issue in the Case as to whether, as alleged in the plaint, Kuppammal died first and Ganga Nayak died only after Kuppammal. Having regard to the conflict of evidence with regard to this issue, it seems to us that we should point out at the outset that the plaintiff who comes into Court alleging that on the happening of certain events in a certain order certain rights to property accrued to him, is bound to establish by affirmative and satisfactory evidence the occurrence of such events in such order. The oral evidence adduced on behalf of the plaintiff, consisting as it does merely of the bare statements that Kuppammal died a few days before Ganga Nayak, has failed to carry conviction to our minds.
8. It is very strange that apart from the death-register, Exhibit 29, and Exhibit C.C.I, to which we shall refer later, there was no documentary evidence of any kind adduced on either side with regard to the question raise d in the issue as to which of the two died earlier. We have also to bear in mind that when two persons died within a very few days of each other, it is easy to manipulate the oral evidence for one side or the other. The death register, the original of which was produced before the lower Court, shows that it was Ganga Nayak that died earlier, on the 12th of March 1917, and that Kuppammal died later, on the 29th of March 1917. This death-register is a public document and would in ordinary circumstances be bound to have been accepted as conclusive of the matter. But the learned Subordinate Judge rejected the evidence of the death-register on two grounds: firstly that it was a book kept by the village Munsiff who happened to be the second defendant, and therefore a person vitally interested in making it out that Kuppammal died later than her son. Apart from the vague suggestion that there was some delay in forwarding the death-register for the year, there is nothing in the evidence to indicate that the death-register was not kept in the proper manner. Even though the village munsiff at the time was the 2nd defendant, there is no reason to suppose that if as a matter of fact Kuppammal had died earlier, he would then have anticipated that Ganga Nayak would also die within a few days of her, and that the death of Kuppammal would not have been in the ordinary course recorded in the book. The gratuitous assumption that the whole of the book or a sufficient portion thereof has been torn out, and something different inserted in its place, is not borne out by the evidence in the case. Apart from this, the second ground stated by the learned Subordinate Judge for brushing aside the evidence of the death-register on the question of the death of Kuppammal and Ganga Nayak is, we take it, somewhat as follows: Ex. C.C.I, having been accepted by the 3rd defendant because it was produced by him, shows a dealing with an item of the suit property. Such a dealing with the property could not have been had by the 3rd defendant unless it be that by that date both Kuppammal and Ganga Nayak had already died. Therefore Ex. C.C.I, which bears date 6th March, 1917, shows that previous to that date both Kuppammal and Ganga Nayak must have died and that therefore the death-register, which shows later dates in March as the dates of the death of Ganga Nayak and Kuppammal must have been fabricated. If in Ex. C.C.I, a reference had been made to the death of these two persons there might be a great deal of force in the argument, but a mere dealing with the property by the 3rd defendant on the 6th March 1917, may be due to various conceivable causes, and the inference that both Kuppammal and Ganga Nayak must have died previous to that date is not the only or inevitable inference. Thero is no reason why the dealing with the property by the 3rd defendant on the 6th March should not be explained as it has, been tried to be, by the fact that Kuppammal was very ill at the time and her son Ganga Nayak was not in a fit state of mind to manage any property. However that may be, it seems to us that while it may be difficult affirmatively to decide as to which of the two died earlier it is sufficient for the purposes of the case to observe that the plaintiff has not discharged the burden that lay on him of proving satisfactorily that it was Kuppammal that died first and Ganga Nayak died only after termination of the life of Kuppammal.
9. With regard to the title of Ovalammal to the suit properties, the learned Vakil for the appellant, who argued the case with great persistence and ingenuity, submitted two other grounds on which he contended that Ovalammal's title should be found. The first ground was that the sale to Govindappa Nayak was in 1902, that in spite of the sale Kuppammal ard Ganga Nayak continued to be in possession of the land till their death which took place in 1917 and that therefore even though the proper title be held to have passed under the sale-deed Ex. F. to Govindappa Nayak, a title to the properties had been acquired by Kuppammal and Ganga Nayak by continued possession for over 12 years. It must be observed that this is not made an alternative ground of attack in the plaint. It being obvious that such a title could if at all be acquired only by adverse possession and the question whether possession in any given case has been adverse or not being a question of fact, the requirement of the law is strict and imperative that any plaintiff who seeks to rely upon the acquisition of title by adverse possession should expressly plead it in his plaint at any rate as an alternative ground. There is no such ground or plea set out in the plaint in the present suit. The learned vakil for the plaintiff-appellant contended that the plaint alleges possession to have continued with Kuppammal and Ganga Nayak even after Ex. F and that further the 11th issue, which relates to tossession of the suit lands, has been found by the lower Court in favour of the plaintiff. The possession that has been referred to as remaining with the transferor in respect of Ex. F, was pleaded merely as evidence to show that the deed was a sham. The defendants not having had any notice of any contention based on the acquisition of title by adverse possession, it will be obviously unfair to them to allow such a plea to be advanced or sought to be made good now in the Court of appeal. Further, the evidence as to possession itself has been of such an inconclusive character that no finding of adverse possession for tie statutory period could possibly be founded on it. The other contention that was also raised for the first time before us with regard to the title of Ovalammal was that assuming g Ganga Nayak died before Kuppammal, Ganga Nayak having had a vested interest at any rate in a moiety of the estate of Gopal Nayak under his will such moiety should be deemed to have passed by inheritance to Ovalammal without any reference whatever to the other moiety which has vested in Kuppammal. This contention again depends on the terms of the will which, as we have already observed, have not been proved in the case. We may also observe that the absence of all reference to such an alternative claim in the plaint, and the keenness of the contest between the parties as to which of the two, Kuppammal or Ganga Nayak survived the other and died later, would seem to show that the possibility of such claim was not in the contemplation of the parties. However that may be, in the absence of any satisfactory evidence regarding the actual dispositions in the will, we feel justified in presuming that the testamentary disposition of Gopal Nayak was only in accordance with ordinary notions of Hindu Law that his daughter should take a limited estate and that after her, her son should take the estate absolutely. This disposes of all the contentions of the plaintiff-appellant with regard to the title of Ovalammal, including the contentions which were raised for the first time in this Court. If Ovalammal had no title to convey, it follows that the plaintiff could have none. In this view it becomes unnecessary to consider the question, whether, as contended by the plaintiff, it has been established that Ex. E was a mere sham and that no title passed under it to Govindappa Nayak. Though it is really unnecessary to decide this question, still as it has been argued at great length we feel we may as well express our decision with regard to it also. Ex. E is only one of a large number of transactions consisting of sales and mortgages made by Kuppammal and Ganga Nayak in the years that followed close on the death' of Gopal Nayak. It has not been suggested that any of the other deeds was a sham. The motive for executing a sham deed like Exhibit P is not clear. Though it was suggested that it might have been made for the purpose of averting or defeating the objections taken by or on behalf of the defendants for the issue of succession certificate in favour of Kuppammal and Ganga Nayak, it has not been explained how Exhibit E could have possibly produced that effect. The subsequent conduct of Kuppammal and Ganga Nayak with regard to the sales of the lands included in Exhibit E by Govindappa Nayak is more consistent with the view that Govindappa Nayak did acquire a title to the properties under Exhibit F. The mere fact that on the compromise proceedings relating to the succession certificate Kuppammal and Ganga Nayak got a release and conveyance in their favour, and that no such release was obtained by or in favour of Govindappa Nayak, may be explained by the fact that for the purpose of making good the title of Govindappa Nayak to the properties, it was sufficient that his transferors should obtain an instrument by which the agnates of Gopal Najak became debarred for ever from making any claim in respect of the properties. For these reasons we are unable to hold that it has been established by the plaintiff that Exhibit E was a mere sham and was not intended to pass any title. Exhibit F however relates only to the properties mentioned in schedules 1 and 2, As regards the properties mentioned in schedule 3 the title of the plaintiff, depending as it does on the title of Ganga Nayak, was bound to be established either by satisfactory proof of the terms of the Will or of the allegation that Ganga Nayak died after Kuppammal and we have already found that the plaintiff has not proved either. In this view it becomes unnecessary to discuss the finding of the lower Court regarding the title to items 4 to 10 of schedule 3. But it is strange that the Judge should have been inclined to hold with regard thereto in favour of the plaintiff in spite of the fact that there is no referenoe whatever in Ex. A to any of the said items, even though Ex, A purports to be a release obtained by Kuppammal and Ganga Nayak in respect of all the properties of Gopal Nayak, which were to be taken by thorn as the result of the compromise. The case of the plaintiff has thus entirely failed. We are not therefore surprised that in these circumstances of Ovalammal having no title whatever to the suit properties the plaintiff should have obtained from her a nominal sale-deed for the purpose of fighting the defendants in a speculative litigation.
10. The appeal fails and is dismissed with costs.