Karnataka High Court
M.S. Ranganayakamma vs M.G. Bhashyam (Decd. By Lrs. Smt. ... on 19 March, 1991
Equivalent citations: ILR1991KAR3527, [1992]198ITR157(KAR), [1992]198ITR157(KARN), 1992(1)KARLJ181
JUDGMENT N.D.V. Bhat, J.
1. This appeal is preferred against the judgment and decree dated August 7, 1981, passed by the XII Additional City Civil Judge, Bangalore in O.S. No. 7691 of 1980 (Old O.S. No. 331 of 1980).
2. The facts relevant for the disposal of this appeal, briefly stated, are as under :
The plaintiff filed the suit, O.S. No. 7691 of 1980, praying for a decree for partition by metes and bounds and for allotting the half share, preferably the northern half share of the premises of the plaintiff. Among other things, it was alleged by the plaintiff that she purchased the premises - (Old No. 189) - New No. 55, Subbaram Chetty Street, Basavangaudi, Bangalore and that she had given the cash to the defendant who, in turn, issued a cheque to the vendor at the time of purchasing the property. The property was purchased in the joint names of both the plaintiff and defendant since the defendant was the only son of the plaintiff and since the plaintiff wanted to leave the half share to him after her death. The defendant (since deceased) was the only son of the plaintiff. Everything went on well till his marriage. However, of late, the defendant and wife started cooking separately for themselves and the plaintiff had to make her own arrangement for her cooking though both have been in the same house. It is, therefore, no longer possible for the parties to live in the same house. It is, therefore, no longer possible for the parties to live in the same way, and the plaintiff, therefore, suggested to the defendant that the property could be divided into two parts as northern half and southern half and he could take the southern half since that portion contained sufficient open space to part his car. Her notice to that effect to the defendant was not replied to. Therefore, she filed the suit claiming the reliefs referred to hereinabove.
3. The defendant resisted the suit of the plaintiff denying that the suit schedule property was purchased from the money belonging to the plaintiff. The allegations in the plaint that the plaintiff had given cash and from such the suit scheduled house had been purchased was denied by him. He took up a contention that the suit scheduled property was purchased by him out of his own earnings and that he alone was the absolute owner of the suit schedule property, though he admitted that the sale deed was taken in the joint names of himself and the plaintiff. He contended that the name of the plaintiff was added only to satisfy her ego and also on the count that she was his mother. According to the defendant, the plaintiff had no rights whatsoever in the suit property and that he alone is the absolute owner. He prayed for the dismissal of the suit.
4. The lower court, on the basis of the pleadings of the parties, raised the following issues :
(i) Whether the plaintiff proves that the suit scheduled properties were purchased by her with her own monies as contended in para 3 of the plaint ?
(ii) Is the plaintiff entitled to any share in the suit scheduled properties ?
(iii) Is the suit properly valued and the court fee paid sufficient ?
(iv) To what reliefs are the parties entitled ?
5. The plaintiff examined herself as a witness. PW-2, S. V. Parthasarathy, was examined as a witness. Exhibits P-1 to P-4 were marked for the plaint. On behalf of the defendant, the defendant was examined as a witness. Exhibit D-1 to D-3 were marked for the defendant.
6. The lower court, on a consideration of the evidence on record and for the reasons reflected in its judgment, answered issued Nos. 1 and 2 in the negative and issue No. 3 in the affirmative. In the result, the suit was dismissed. Hence, the instant appeal by the plaintiff.
7. We have heard learned counsel appearing on either side.
8. During the pendency of the appeal, the defendant expired, with the result, his legal representatives, viz., the plaintiff and the wife of defendant, Smt. Thangam Bhashyam, are brought on record. An Additional ground of attack as stated in para 3 is sought to raised. The additional ground of attack that is sought to be raised is that the defendant pleaded in his written statement that when he purchased the suit scheduled property, the plaintiff's name was added to the sale deed as purchaser with due deference to the wishes of an aged mother to satisfy her ego and that he also pleaded that he is the absolute owner of the property and that the plea of the defendant is that the plaintiff is only a benamidar and the defendant is the real owner and that the said defence is hit by the mischief of the provisions of section 4(2) of the Benami Transaction (Prohibition) Act, 1988.
9. The points for consideration in this appeal are as under :
(i) Whether the plaintiff is entitled to any share in the suit schedule property and, if so, entitled to what share ?
(ii) What is the impact of the provisions of section 4 of the Benami Transactions (Prohibition) Act, 1988, with reference to the suit claim and the defence taken in that behalf ?
(iii) What order ?Points Nos. 1 and 2
10. Having regard to the submissions made at the bar by learned counsel on either side, we find that Points Nos. 1 and 2 are inextricably mixed up with each other. We, have, therefore, taken these two points for discussion together.
11. Before considering the question relating to the impact of the provisions of section 4 of the Benami Transactions (Prohibition) Act, 1988, (hereinafter referred to as "the Act"), it would be indeed necessary to have a clear idea as regards the claim made by the plaintiff and the defence taken by the defendant (since deceased). The details of the pleadings of the parties to the suit are already alluded to earlier. In pith and substance, the plea of the plaintiff is that though the property was purchased in the names of the plaintiff and the defendant by the sale deed at Exhibit D-1, it is the plaintiff who had supplied the entire amount towards the purchase transaction by taking a loan from PW-2, Parthasarathy. However, she wanted to leave half a share to the defendant after her death since the property was purchased in the joint names of both the plaintiff and the defendant. It is also necessary to remember here that she claimed only half share in the property. On the other hand, the plea of the defendant, in substance, is that though the property was purchased jointly in the names of himself and the plaintiff, the property was purchased with his sole funds and that, therefore, the plaintiff has no share in the suit property. The lower court, on a consideration of the evidence on record, took the view that the loan with the help of which the property was purchased was repaid by the defendant and not by the plaintiff. It, therefore, took the view that the plaintiff did not have any interest in the suit schedule property. It is on the basis of this conclusion that the lower court dismissed the suit.
12. It is, therefore, necessary, in the first instance, to see whether the conclusion reached by the lower court in the way and manner as has been done can be held as justified on a reappraisal of the totality of the evidence. Thereafter, it will have to be seen whether the lower court was right in dismissing the suit of the plaintiff on the basis of the conclusion that the loan with the help of which the property was purchased was repaid exclusively by the defendant.
13. It is seen the plaintiff in support of her version has relied on her evidence the evidence, of PW-2, Parthasarathy, as also on exhibit P-2, the promissory note, exhibit P-3 the consideration receipt, exhibit P-4 the sale deed dated April 28, 1973, and a copy of the notice at exhibit P-5. The defendant, on the other hand, has relied on his own evidence apart from exhibit D-1, cheque, exhibit D-2 memo of calculation and exhibit D-3 counterfoils of the cheques.
14. While appreciating the evidence in a case like this where both parties have led evidence, the court is indeed required to take and integrated look at the totality of the evidence and, while doing so, it should be its endeavour to identify the main strands of truth. Bearing this in mind, it will have to be seen as to where the truth lies.
15. At the earliest point of time as reflected in the notice dated March 5, 1980, exhibit P-5, the plaintiff has taken the stand that the she has purchased the property with her own money. In para 3 of her plaint, she has reiterated the same with a further assertion that she had given the cash into the hands of the defendant and that the defendant has issued a cheque to the vendors. At this juncture, it is necessary to remember that the plaintiff had not remotely whispered about her having taken a loan of Rs. 25,000 from PW-2, Parthasarathy, much less on her having excited a promissory note at exhibit P-2. However, in the course of her evidence, she has come out with a version as can be seen from para 2 of her deposition that she had taken the loan from PW-2, Parthasarathy, and had executed a promissory note as per exhibit P-2 in that behalf. Even here, it is significant to note that it was not the version of the plaintiff that she and the defendant had together taken the loan or had together executed the promissory note. Further, as can be seen from para 9 of her deposition in the course of her cross-examination, she has unequivocally stated that PW-2, Parthasarathy, gave her a loan of Rs. 25,000 and that it was paid in cash. However, it is relevant to note at this stage that PW-2 who is examined as witness for the plaintiff has stated at para 5 his deposition that he gave a loan of Rs. 25,000 by issue of a cheque in favour of the defendant and, on the same day, the defendant and, on the same day, the defendant gave him an undated cheque for Rs. 27,000. It will suffice at this stage if it is stated that the answer elicited from PW-2 as above, apart from rendering the version of the plaintiff false in substance, leads credibility and corroboration to the version of the defendant as disclosed in para 1 of his disposition. Further, the promissory note at exhibit P-3 said to had been executed by the plaintiff and the defendant aspire exhibit P-2 bristles with various infirmities and incongruities. We have pointed out earlier, as to how the plaintiff had maintained a studious silence with reference to exhibits P-3 and P-4 in her notice and the plaint. Apart from that, the evidence of the plaintiff in this context is revealing and casts a cloud of doubt on exhibit P-3 and P-4. At para 9 of her deposition, the plaintiff has stated as under :
"9. Exhibits P-2 and P-3 were returned to me after I repaid the loan of Parthasarathy. I repaid the loan two are or three years after I purchased the house. I cannot tell in whose hand the hand written portion in exhibits P-2 and P-3 is. I was not present when exhibits P-2 and P-3 were written. I signed exhibits P-2 and P-3 in my house. I might have signed in my name. It do not now remember it if I signed it in my house or in the house of Parthasarathy. I do not remember who all were present when I signed exhibits P-2 and P-3. I cannot tell who else have signed exhibit P-2 and exhibit P-3. Parthasarathy gave me a loan of Rs. 25,000. It was paid in cash. I do not remember how many days after I took the loan purchased the house. I cannot say if Parthasarathy paid me consideration under exhibit P-2 and exhibit P-3 on the date on which I executed them or subsequently."
16. It is needless to say that the answers elicited as above bring into being a justifiable suspicion about the genuineness of exhibits P-2 and P-3. It is not doubt true that PW-2, Parthasarathy, has tried to support the version of the plaintiff. However, we are constrained to observe for reasons more than one that the evidence of this witness is also tarred with the same brush. PW-2, Parthasarathy, has tried to support the plaintiff's version in his examination-in-chief. He has stated in para 2 of his deposition that be had paid a loan to the plaintiff and that the plaintiff had executed a note in his favour as per exhibit P-2 and she paid Rs. 15,000 and Rs. 9,000 and the balance was paid by her in small sums of money. He has stated that the entire debt was repaid by the plaintiff and he has made and endorsement in that behalf on the promote. However, his cross-examination at para 5 of his deposition would go to show as to how he has come out with a different version. He has stated at para 5 of his deposition in the course of his cross-examination as under :
"5. I have not given any loan to the plaintiff. I gave loan to both plaintiff and defendant together for purchasing the house. Both had asked me for a loan. I gave loan of Rs. 25,000 by issued of a cheque in favour of the defendant. On the same day, in repayment of the loan, the defendant gave me an undated cheque for Rs. 27,000. I see exhibit D-1. It is the same cheque for Rs. 27,000 which defendant had issued to me (exhibit D-1 is produced by the plaintiff). I returned exhibit D-1 to the plaintiff after my loan was repaid. I returned exhibit D-1 to the plaintiff five years ago. At no other time, I had given loan to the plaintiff. To the defendant I have given loan many a time. For having given loan to the defendant, at no time I have taken promote from the defendant. At no time I had taken undated cheque as security for loan given. It is not true that when I had given loan to the defendant, I had taken blank promotes with his signature."
17. It would suffice if is stated that the portion of his evidence culled out here in above speaks for itself. Further, the answers elicited at para 7 of his deposition in the course of his cross-examination would indeed act as a nail on the coffin of the case of the plaintiff. PW-2 has stated therein as under :
"7. On the date on which I gave loans of Rs. 25,000, the defendant has issued me a cheque for Rs. 250. It is true that thereafter each month or once in two months the defendant has given me cheques in a sum which was not less than Rs. 250. No payment in cash was made. The defendant has paid me Rs. 1,000 on March 16, 1973, Rs. 300 on January 12, 1974, Rs. 500 on August 23, 1974, Rs. 1,192 on July 15, 1975, Rs. 2,000 on December 27, 1974, Rs. 1,000 on January 1, 1975, Rs. 2,000 on July 3, 1976 and Rs. 2,000 on May 24, 1977."
18. Then again, at para 11 of his deposition, it is elicited that the defendant had paid him Rs. 2,000 in cash on November 15, 1979, through Sulochana.
19. From what is stated hereinabove, it is clear that PW-2 has condemned himself by his own answers which are at variance with each other at different stages of his deposition. In this view of the matter, we have no hesitation whatsoever in concurring with the conclusion of the learned Additional City Civil Judge that P.W. -2 is not a reliable witness.
20. An attempt was made by the plaintiff to show that she had wet lands at Sattega and that she had sold the same and got money and that she used that money to repay the loan of Parthasarathy. In his connection, the sale deed at exhibit P-4 (copy) is produced by the plaintiff. The recitals reflected therein would go to show that the property was sold for Rs. 16,000 and that the same would be received at the time of registration. However, the recitals in the said sale deed would go to show that the property mentioned therein was sold altogether for a different purpose. Further, according to the version given by P.W. -2, the amount towards his loan was paid by the plaintiff once in the month of June, 1973, and for the second time in the year 1977, as disclosed from his evidence at para 9 of his deposition. We have shown earlier as to how P.W. -2 himself has admitted in crystal clear terms at para 7 of his deposition as regards the payment of the several items of amount by the defendant. Under these circumstances, we have no hesitation whatsoever in holding that the version given by the plaintiff and P.W. -2 in this behalf cannot be countenanced at all.
21. On the other hand, the version given by the defendant is corroborated by the answers given by P.W. -2 in the course of his cross-examination particularly at para 7. Further, he has stated that, as recorded in the memo of calculation at exhibit D-2, he had issued a cheque for Rs. 2,000 and Rs. 4,000 in the name of his sister, Sulochana, and that she encashed the cheque and paid the amount in cash to P.W. -2 as desired by P.W. -2 himself. It is necessary to recall here that P.W. -2 has admitted in the course of his cross-examination that the defendant had paid Rs. 2,000 in cash on November 15, 1979, through Sulochana, the daughter of the plaintiff. Though it is no doubt true that P.W. -2 has denied the payment of another sum of Rs. 4,000 in cash on January 29, 1990, however, having regard to the preponderance of probabilities, we are inclined to believe the version of the defendant in this behalf. The reason is that this was suggested to P.W. -2 while he was in the witness box. Sulochana is the daughter of the plaintiff. She was residing with the plaintiff. It was, therefore, incumbent upon the plaintiff to examine Sulochana. No reason is forthcoming for failure to examine her. We are, therefore, inclined to accept the evidence of the defendant in this behalf.
22. Sri S. V. Raghavachar, learned counsel for the appellant, invited our attention to certain discrepancies in the course of the cross-examination of D. W. -1. However, it will suffice if it is observed that discrepancies do not always affect the testimony of a witness if the core of his evidence is corroborated by independent circumstances. In the instant case, we have shown as to how the evidence of D.W. -1 gains support from the evidence of P.W. -2 himself and how the different circumstances militate against the case made out by the plaintiffs. Under these circumstances, we are not impressed by the discrepancies pointed out by learned counsel for the appellant.
23. It was also argued that the promissory note at exhibit P-2 and the consideration receipt at exhibit P-3 bear the signature of the defendant. However, we have shown earlier as to how the alleged execution of the promissory note is highly incredible in the facts and circumstances of the case. It is not necessary for us to risk a repetition here. It is also not as if the defendant has not come out with any explanation in that behalf. In fact, at para 2 of his deposition, he had stated that he does not remember when he had made his signature at exhibits P-2 and P-3. He has further stated that he had asked P.W. -2 for a loan and the latter told him that he did not have money but would help him in getting a loan from a finance corporation and for that, a promote would be required to be executed. He has further stated that he does not remember that, for such a purpose, he had given a promote to P.W. -2. Ordinarily, we would not have been inclined to accept this explanation. However, in the context of the totality of the circumstances which we have alluded to earlier with reference to the execution of the promissory note at exhibit P-2, we are inclined to accept the explanation. The fact that the plaintiff did not make any mention about the execution of the promissory note either in the notice at exhibit P-5 or in the plaint, and in the fact that she has not stated in her evidence that the promissory note was executed by the plaintiff and the defendant and the fact that the promissory note itself suffers from certain inherent infirmities and the answers elicited in the cross-examination of P.W. -1 and P.W. -2 which are culled out hereinabove, if appreciated together, would unmistakably go to show that exhibit P-2 and P-3 are tainted. Under these circumstances, we have no hesitation whatsoever in concurring with the conclusion reached by the lower court that these are got up documents.
24. Thus, on a reappraisal of the totality of the evidence on record we have no hesitation to hold that the loan in fact was given to the defendant (since deceased) and the loan was repaid by the defendant alone to P.W. -2.
25. If that be so, the next questions which would arise for consideration is whether the transaction in question, that is to say, the transactions reflected in exhibit P-1, discloses that it is in the nature of benami. This questions is required to be examined with reference to the concept of benami transactions as explained by the judicial pronouncements before Act No. 45 of 1988 was enacted as also in the light of the definition given in the act. In this connection, the authoritative pronouncement of the Supreme Court in the decision in Bhim Singh v. Kan Singh, , is relevant for our consideration. In para 14 therein, among other things, it is pointed out that two kinds of benami transactions are generally recognized in India. It is pointed out therein that, where a persons buys a property with his own money but in the name of another persons without any intention to benefit such other persons, the transaction is called benami and, in that case, the transferee holds the property for the benefit of the person who has contributed the purchase money and he is the real owner. It is further pointed out therein that the second type, which is loosely termed a benami transactions, is a case where a persons who is the owner of the property executes a convenience in favour of another without the intention of transferring the title to the property thereunder and that, in such a situation, the transferor continues to be the real owner. It is also pointed out there in that the question whether a transaction is a benami transaction or not mainly depends upon the intention of the person who has contributed the purchased money in the former case and upon the intention of the person who has executed the conveyance in the latter case. Explaining the principle governing the determination of the question whether a transfer is a benami transaction or not, the Supreme Court has further pointed out that the burden of showing that the transfer is a benami transaction lies on the person who asserts that it is such a transaction and if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary and the true character of the transaction is governed by the intention of the person who has contributed the purchase money and the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship between the parties, the motives governing their action in bringing about the transaction and their subsequent conduct, etc.
26. Section 2(a) (Act No. 45 of 1988) of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as "the Act"), defines a "benami transaction" as any transaction in which property is transferred to one person for a consideration paid or provided by another person.
27. A perusal of the provisions of section 2(A) of the Act would go to show that the same has brought into being an element of change with reference to the meaning to be assigned to "benami transaction" in that it does not have any reference to the intention of the parties. However, one thing is very clear and that is that, before a transaction can be termed a "benami transaction ", the property should be transferred to one person for consideration paid or provided by another person. It is, therefore, necessary to see whether the transaction in the instant case, viz., the transaction reflected in exhibit P-1 - sale deed - is such as would come within the compass of section 2(a) or for that matter partakes of the complexion of a benami transaction in the light of the principles laid down by the Supreme Court in the aforesaid decision.
28. Sri Ullal, learned counsel for the respondent, contended that if a person from whom the consideration is provided is also on record, then the transaction cannot partake of the nature of benami. The submission made by Sri Ullal cannot be accepted in the context of the definition of benami transactions in the Act. A careful perusal of the definition of "benami transaction" would go to show that, whenever a property is transferred to one person for the consideration provided by the other, it would constitute benami transaction. The question for consideration is whether it would make any difference to the definition of benami transaction if the property is transferred together to both the persons, that is to say, to the person who has not contributed towards the sale price and to the person who provided the entire consideration. In our view, the same would not make any difference except to the extent to which the transaction would partake of the nature of benami. If the interpretation sought to be placed by Sri Ullal is accepted, the same would defeat the provisions of section 2(a) of the Act. An interpretation which does not advance the object of the Act but, on the other hand, which would in substance, defeat the provisions of the Act cannot be accepted and the interpretation which can be reasonably culled out from the language employed in the definition and which also advances the object of the legislation will have to be adopted.
29. In the instance case, the property is transferred by the vendors both to the plaintiff and the defendant. We have held earlier here in above that the evidence on record goes to show that the entire consideration amount has flown from the defendant to the vendors. It is, therefore, clear that the transaction to the extent to which the property is transferred to the plaintiff by the sale deed at exhibit P-1 is a benami transaction. The Supreme Court, in the decision in Mithilesh Kumari v. Prem Behari Khare , has pointed out that, in its sweep, section 4 of the Act envisages past benami transactions also in its retroactivity. It is further pointed out that, when the remedy is barred, the right is rendered unenforceable and all the real owners are equally affected by the disability provision irrespective of the time of creation of the right. It is further pointed out by the Supreme Court that the subsequent events can be taken note of. It is further pointed out by the Supreme Court that, where a suit file by the real owner for a declaration that certain property is held by the defendant benami and that the plaintiff is the real owner was decreed by the lower court but an appeal by special leave against the same was pending before the Supreme Court on the date of the commencement of the Act, the appellate court is competent to take into account legislative changes since the decision under appeal was given and its power is not confined only to see whether the lower court's decision was correct according to the law as it stood at the time when its decision was given. It is further pointed out therein that once the decree of the High Court has been appealed against, the matter became subjudice again and, thereafter, the Supreme Court had seisin of the whole case. In view of the provisions of the Act, therefore, the plaintiff's suit or action could not be decree under the law. It is therefore clear that the said ratio would hold good mutatis mutandis to the facts of this case also. If that be so, the next question for consideration is as to what is the extent of the right or share purported to have been transferred in favour of the plaintiff by the sale deed, exhibit P-1. The sale deed at exhibit P-1 does not define the share or interest of the plaintiff and the defendant. However, it is disclosed from the sale deed at exhibit P-1 that both the plaintiff and the defendant were already in possession of the property as tenants, next before the date of sale. The relevant recitals therein are as under :
"The vendors have hereby delivered and put the purchasers, who have already been in occupation as the tenants of the vendors in possession of the schedule property free from all encumbrances."
30. In the context of the recitals referred to here in above and having regard to the fact that both the plaintiff and defendant were staying in the same house and that the share of the respective vendee is not defined in the sale deed, it appears to us that the sale deed purports to transfer the rights of the vendors in the property to the plaintiff and the defendant equally. It would, therefore, follow that the sale deed at exhibit P-1 purports to transfer the rights of the vendors to the transferee, i.e., the plaintiff and the defendant in equal share. In this view of the matter, it would follow that the transaction to the extent of transfer of half share in the property in favour of the plaintiff is a benami transaction, since the consideration in that behalf also proceeded from the defendant.
31. Once it is held that the transaction to the extent of transfer in favour of the plaintiff is a benami transaction it is not permissible for the court to allow any defence based on any rights in respect of the said property held benami. In other words, it is not permissible for the defendant to say that the plaintiff has no any right to the same because she is a "benamidar". Section 4(2) of the Act enjoins an injunction in this behalf. It reads as under :
"4. Prohibition of the right to recover property held benami, - ....
(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."
32. Under the circumstances, it would follow that it is not permissible for the defendant to contained that the plaintiff has no share in the property on the ground that consideration towards sale price proceeded from him alone and that the plaintiff is only a benamidar or a name-lender.
33. Sri Ullal, however, argued that, if the transaction disclosed a benami transaction then section 4(3)(b) of the Act will apply to the facts of this case and section 4(2) of the Act will not apply at all. Section 4(3)(b) of the Act reads as under :
"4. Prohibition of the right to recover property held benami - ......
(3) Nothing in this section shall apply - .....
(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity."
34. A perusal of the aforesaid provisions would indeed go to show that the same has no application having regard to the fact that the conjunctive ingredients do not co-exist in the instant case as between the plaintiff and the defendant. In the light of what is stated here in above, particularly with reference to section 2(A) of the Act, it is not necessary to consider the nature of the transaction in the context of the decision rendered next before the Act came into force.
35. For the reasons stated hereinabove, it would follow that it is not permissible for the defendant to plead that the plaintiff has no right in the property on the ground that the entire consideration proceeded from him.
36. Hence, we hold that the plaintiff and the defendant each had a half share in the property. It is seen that defendant has expired during the pendency of the appeal. It is well-settled that subsequent events will have to be taken note of and of the court will have to would its decree in the light of the same. Necessary amendment with reference to the bringing in of the legal heirs, that is to say, the instance appellant and the respondent, has been effected. It is not in dispute that the present appellant and the respondent, Smt. Thangam Bhashyam, are the only heirs of the deceased defendant, M. G. Bhashyam. Under these circumstances, it would follow that the half share in the property left by the deceased M. G. Bhashyam will devolve on the instant appellant and the respondent, Thangam Bhashyam, equally. In other words, the plaintiff will be entitled totally to 3/4ths share and the instant respondent, Smt. Thangam Bhashyam, will be entitled to 1/4th share in the property. The different points pressed for decision are answered as above.
37. It would, therefore, follow that the judgment and decree passed by the the lower court in O.S. No. 7691 of 1980 are liable to be set aside and the suit of the plaintiff deserves to be decreed declaring that the plaintiff is entitled to 3/4ths share in the suit property and the defendant is entitled to 1/4th share in the suit property.
38. In the result, we pass the following order :
The appeal is allowed and the judgment and decree dated August 7, 1981, are hereby set aside. We hereby order that the plaintiff-appellant is entitled to 3/4ths share in the suit property described in the scheduled to the plaint and we direct the same to be divided by metes and bounds and allotting 3/4ths share to the plaintiff-appellant and 1/4th share to the defendant-respondent, viz., Smt. Thangam Bhashyam. A Preliminary decree shall be drawn up accordingly.
39. We direct both the parties to bear their own costs.