The court dismissed this regular second appeal against a decree confirming a partition between appellant and respondent. Raising substantial questions on benami transactions and sham deeds, the court held no such issues arose and the lower courts correctly found joint acquisition.
The second appeal is dismissed in limine.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH
WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931
RSA.No. 684 of 2007()
--------------------AS.16/2005 of ADDL. DISTRICT COURT, VADAKARA OS.80/2003 of MUNSIFF COURT, VADAKARA
APPELLANT/APPELLANT IN A.S.16 OF 2005/DEFENDANT IN O.S.80 OF 2003
MANNICHI MOIDU,S/O. ABDULLA, MERCHANT, 51 YEARS, RESIDING AT THAYIKANDATHIL, MUTTUNGAL AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT.
BY ADV. SRI.B.KRISHNAN
SRI.R.PARTHASARATHY
RESPONDENT/RESPONDENT IN A.S.16 OF 2005/PLAINTIFF IN O.S.80 OF 2003:
KAPPANTAVIDA ABDUL RAZAK, S/O. MAMMU, 46 YEARS,MERCHANT,VADAKARA AMSOM DESOM VATAKARA TALUK, KOZHIKODE DISTRICT.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P JOSEPH, J.
R.S.A.No.684 of 2007
Dated this 03rd day of March, 2010
JUDGMENT
This appeal arises from judgment and decree of learned District Judge, vatakara in A.S.No.16 of 2005 confirming the preliminary decree for partition passed by learned Munsiff, Vatakara in O.S.No.80 of 2003. According to the respondent/plaintiff, the suit property was acquired by him and appellant jointly as per Exts.A1 and A2, assignment deeds dated 09-09-1980 and 31-01-1981, respectively and while they were in joint possession and enjoyment they made a division of the property leaving the northern portion to the respondent and the southern portion to the appellant. Though there was an agreement between them to execute a partition deed accordingly, it could not be done. Hence the suit for partition. Appellant contended that though the documents happened to be taken in the name of himself and respondent, the latter has no right or possession of the suit property since the entire sale consideration flowed from him. He denied that there was division of property between himself and respondent. Trial court found against the contention raised by appellant and granted preliminary decree. That was confirmed by the first appellate court which is under challenge in this appeal raising by way of substantial questions of law whether a plea of sham transaction comes within the
R.S.A.No.684 of 2007 2
mischief of section 4 of the Benami Transactions (Prohibitions) Act 1988 (for short, “the Act”) and whether a defence based on right in respect of a property held benami can be considered if the bar under the Act is not taken up by the plaintiff in the suit. It is contended by learned counsel that finding entered by the courts below is not correct.
R.S.A.No.684 of 2007
3
and A2 a sham transaction. So far as the question based on plea of Benami transaction is concerned, under section 4(2) of the Act a defence based on plea of Benami is also barred. For the application of that provision it was not necessary that respondent should have pleaded in the plaint that section 4(2) of the Act prevented appellant from raising such a contention. No such substantial questions of law as urged in the memorandum of appeal do arise for a decision. The courts below on evidence found that it is a joint acquisition by appellant and respondent as per Exts.A1 and A2.
Resultantly the second appeal is dismissed in limine.
THOMAS P JOSEPH, JUDGE
Sbna/
3 issues framed by the court
Whether a plea of sham transaction falls under section 4 of the Benami Transactions (Prohibitions) Act, 1988.
Whether a defence based on benami rights can be raised if the plaintiff did not invoke section 4(2) of the Act.
Whether the resultant decree for partition requires interference in this appeal.
Colour shows how this judgement treated each authority
Ouseph Chacko Vs. Raman NairReferred¶24
Ouseph Chacko Vs. Raman Nair (1989(1) KLT 767)
Sumathikutty & Ors. Vs. Sathyabhama & Ors.Referred¶24
Sumathikutty & Ors. Vs. Sathyabhama & Ors. (1994(2) KLJ 244)
3 provisions across 2 enactments
MANNICHI MOIDU
KAPPANTAVIDA ABDUL RAZAK
THOMAS P.JOSEPH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
