Kerala High Court
Chaliloth Theroth Mohanan And Anr. vs Chaliloth Yesoda And Ors. on 21 March, 1989
Equivalent citations: AIR1989KER286, [1990]185ITR31(KER), AIR 1989 KERALA 286, (1989) 1 KER LT 867 (1989) 2 KER LT 264, (1989) 2 KER LT 264
Author: K.G. Balakrishanan
Bench: K.G. Balakrishanan
JUDGMENT
1. The defendants in O.S. No. 265 of 1978 on the file of the Munsiff's Court, Cannanore are the appellants. The suit relates to 36 cents of land comprised in R.S. No. 69/6 in Elavoor Amsom, Chow a Desom. The plaintiff filed a suit alleging that the plaint schedule property belongs to her. There is a "samadhi sthanamnagam" on the eastern side of the plaint schedule property. The plaintiff claims title and possession of the entire 36 cents inclusive of this "samadhi stanamnagam". The plaintiff alleged that she had been in possession of the plaint schedule property for the last 50 years and the income from this property was set apart for the conduct of poojas and other ceremonies in the aforesaid samadhi stanam nagam. In 1967, an R.C.C. building was put up in the property at the place of worship according to the wishes of the 'Gurunadhan'. Religious Ceremonies are being performed in the "samadhi. Plaintiff further alleged that the defendants have no title or possession over the property. After the filing of the written statement by the defendant, plaintiff amended the plaint and added para 5a to the plaint. An additional prayer for declaration was incorporated in the plaint. In para. 5a of the plaint, plaintiff alleged that the document execrated in favour of Chaliloth Krishnan on 4-12-1961 in respect of the plaint schedule property had not come into effect and as per that document, the property was not intended to be conveyed to the said Krishnan and who never enjoyed or possessed the plaint schedule propqrty, It is also alleged that the title deed, if any, of Krishnan was lost by adverse possession and limitation.
2. The defendants are the widow and son of Chaliloth Krishnan. They alleged that the plaint schedule property originally belonged to one Ramunni. He got the same in the partition effected as per final decree in O.S. No. 123 of 1945. Ramunni died and his wife and children executed the sale deed in favour of Yesodha. The said Yesodha transferred the property on 4-12-1961 in favour of Krishnan the husband of 1st defendant. Defendants also alleged that after the death of Krishnan the property devolved on the defendants and the plaintiff was never in possession of the property. They also contended that the decease. Krishnan had
3. In any claim for compensation under Sub-section (1), the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act neglect or default of the owner or owners of the vehicle or vehicles concerned or of any other person.
4. A claim for compensation under Sub-section (1) shall not be defeated by reason of any wrongfulact, neglect or default of the person in respect of whose death or permanent diablement the claim has been made nor shall the quantum of compensation recoverable in respect of such death or permanent disablement be reduced on the basis of the share of such person in the responsibility for such death or permanent disablement."
5. A reading of the above provision would make it clear that wherever death or disablement of any person has resulted from an accident as contemplated therein, the owner of the vehicle shall be liable to pay compensation in accordance with the provisions thereof. This liability arises irrespective of rashness or negligence on the part of the driver in the driving of the vehicle to any extent. In other words, it creates a no fault liability to the extent indicated above. This is clear from Sub-section (3) which states that the claimant shall not be required to plead and establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act, neglect or default of the owner of the, vehicle or of any other person. Sub-section (2) quantifies the claim, that is, Rs. 15,000/- in the case of death and Rs. 7,500/- in the case of permanent disablement. There is nothing in Section 92A which would indicate that the owner can be ordered to pay compensation only on a claim application to be filed by the claimant. Section 110 deals with establishment of Claims Tribunals. Sub-section (1) states that the State Government may constitute tribunals for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles or damages to any property of a third party so arising, or both. The procedure for putting forward such a claim is prescribed in Section 110 A. This provision contemplates an application for compensation to be filed in such form and with such particulars as may be prescribed. Rules have prescribed the form and particulars. No doubt, proviso to Sub-section (2) of Section 110A states that where any claim for compensation Section 92A is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant. We do not understand this provision as laying down a condition that compensation under Section 92A can be awarded only on a formal application or a formal claim being made in the main application. It is not as if the claim and order to be passed under Section 92A is always independent of the claim under Section 110A.
6. The provisions of Section 92B are also relevant to an extent. Sub-section (1) states that right to claim compensation under Section 92A shall be in addition to any other right (based on the principle of fault) to claim compensation in respect thereof under any other provision of the Act. Sub-section (2) requires such a claim be disposed of as expeditiously as possible. Sub-section (3) lays down the manner in which adjustment is to be made in regard to compensation provided under Section 92A when compensation is directed ro be paid on the main application. The former is deducted from the latter.
7. All these provisions have some purpose to; serve. It may be, that in some cases the accident would have arisen on account of no fault of the driver. It may be that in some cases the claimant may not be in a position to prove the fault of the driver. Legislature did not evidently want the injured in such cases to be totally denied any compensation. It is in this background Section 92A has been enacted to provide for compensation to be paid in extreme cases, namely, death or permanent disablement even in the absence of fault of driver. To hold that the liability can be recognised only in cases where formal application if filed will go against the salutory purpose of the provision. It is necessary for set up a case of benami and according to her Exts. A11 and A12 documents have not come into effect and these are sham transactions and the title still vested with her. The question that would arise for consideration is whether the present respondents, who are the legal representatives of the deceased plaintiff are entitled to raise such a plea in view of Section 4 of Benami Transact ions (Prohibition) Act 1988, came into force on 19-5-1988. The relevant portion of Section 4 reads as follows :
"4. Prohibition of the right to recover property held benami. -- (1) No suit, claim or action to enforce any right in respect of property held benami against the persons in whose name the property is held or against any other persons shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property".
11 may be noted that this Court in Velayudhan v. Rajeev, AIR 1989 Kerala 12 : (1988) 2 Ker LJ 271, considered the scope and effect of Section 4 of Benami Transactions (Prohibition) Act, 1988 on a pending suit and it was held (at p. 18 of AIR) :
"The words 'no defence; convey an emphasis of extraordinary rigour they rope in all that is within the vision and in the horizon. The succeeding words, 'shall be allowed in any suit, claim or action', are equally wide and equally sweeping in their effect and operation. The deprivation of a defence is not confined to a suit hereafter to be filed; it ex tends to the projected areas of a claim, or an already initiated action. The words 'no defence shall be allowed' necessarily mean that no such defence shall be allowed by the Court. The Court, is therefore, bound to consider at every stage, to find out whether there is a defence of benami put forward before it. There is no option left to the court. Plainly, that duly is cast on the Court to be discharged in suits hereafter to be instituted. when such a defence is raised. It is equally there when such a defence is noticed in suits already pending".
I am in respectful agreement with the above said decision and if the provisions of the Benami Transactions (Prohibition) Act, 1988 are applied to the facts in this case, the plaintiff's plea must fail. Learned counsel for the plaintiff-respondents contended that the plaintiff has not alleged any benami, but in fact, only alleged that Exts. All and A12 transactions are sham documents and that the title never passed to the assignee shown in those documents. Reliance was placed on the decision in Sree Meenakshi Mills Ltd v. I.T. Commr., AIR 1957 SC 49. There the Supreme Court has defined the term 'Benami'. It was held (at Pp. 66-67) :
"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. It is only in the former class of cases that it would be necessary, when a dispute arises as tp whether the person named in the deed is the real transferee or B, to enquire into the question as to who paid the consideration for the transfer, X or B. But in the latter class of cases, when the question is whether the transfer is genuine or sham, the point for decision would be, not who paid the consideration but whether any consideration was paid".
Based on the above decision it was contended that the plaintiff had not set up any case of benami but Exts. A11 and A12 documents are sham documents and have not come into existence. It was contended that Krishnan had not acquired any right over the property under Ext. A12 since that transaction is a sham transaction and the case pleaded by the plaintiff is not benami and this sort of plea is not prohibited by the provisions of the Benami Transactions (Prohibition) Act, 1988.
7. The above contention cannot be accepted. The specific case of the plaintiff Madhavi is that she purchased the property in the name of Yesoda under Ext. A11 document. Therefore, according to the plaintiff, she is the real owner and Yesoda is only a benamidar. Plaintiffs further case is that Yesoda though executed Ext. A12 benami in favour of K rishnan, it was executed since Krishnan was the eldest member of the family and that the parties never intended to transfer the property in favour of Krishnan. This would show that the plaintiff wanted to set up a case of benami. Moreover, the present contention of the plaintiff that the transaction was not a benami transaction cannot be accepted in view of the definition of the "benami transaction" under Section 2(a) of the said Act. Sec. 2(a) reads as follows :
"Benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person".
Here the case is that the plaintiff paid consideration and that Krishnan never obtained the possession under Ext, A12 transaction. The plaintiff-respondents are not entitled to raise such a plea and the court cannot enforce any right against the defendants on that basis. This is clear from Section 4 of the said Act. Therefore, the plea of the plaintiff that the property did not belong to Krishnan as per Ext. A12 cannot be accepted.
8. The evidence in this case also would show that the plaintiff wanted to deny the rights of the defendants. The property was purchased from Yesoda by Krishnan in 1961. Admittedly Krishnan was having some business. Even during the last period of his life Krishnan was running a shop. After the death of Krishnan, the property devolved on his wife and son. The documents produced by the plaintiff, would only go to show that the plaintiff and her children, who constructed the samadhi sthanam nagam" on the eastern side of the property. Krishnan being the son the Plaintiff might have allowed Krishnan and others to construct the"samadhi sthanam nagam" on the property. The defendants have produced documents to prove that they have purchased the tenancy right in respect of this property. There is also evidence to show that Krishnan was for sometime residing in the house of the plaintiff. The plaintiff was residing on the northern side of the property. The Commission report also shows that there was some boundary in between the plaint schedule property and the northern property held by the plaintiff. The courts below were swayed by the plaintiffs documents. They would only show that the plaintiff and R.W. 1 spent some amount and actively participated in constructing the "samadhi sthanam nagam". There is absolutely nothing in evidence to show that Krishnan gave up his rights in respect of this property.
The trial Court as well as the appellate Court seriously erred in finding that the plaintiff was in possession of the property. After the death of plaintiff the property devolved on the defendants. Therefore the suit filed by the plaintiff is liable to be dismissed set aside the decree and judgment of the trial Court and the lower appellate Court. In view of the close relationship between the parties I order that they shall bear their respective costs. The appeal is allowed and the suit will stand dismissed.