Trinite Modestine vs Jayaseeli Lagrave and Others

Sivasubramaniam, J.—This is a petition filed by a third party to implead him as the second appellant in the above second appeal.

The material averments made in the affidavit filed in support of this petition are as follows: The petitioner was employed in French Army in

France and the first respondent herein is the younger sister of his mother. His only close relative at Pondicherry was the first respondent. He

wanted to buy some agricultural property at Pondicherry to provide for his occupation and income after his retirement. With this view, he paid a

sum of Rs. 9,000 to the first respondent in the year 1963 and requested her to purchase some property for him. Accordingly, the first respondent

entered into an agreement to purchase the suit property advancing a sum of Rs. 4,000. Again in 1968, he paid another sum of Rs. 30,000 to her

towards the sale consideration for the purchase of the suit property. As he could not stay in Pondicherry after the expiry of his leave, he requested

her to purchase the property in her name benami for his benefit. Accordingly, she purchased the suit property benami for his benefit by paying the

money which he had entrusted to her. He retired from the French Army and returned to Pondicherry, in the year 1973. There were certain

disputes between the respondents 2 to 5 herein and the first respondent regarding the title to the suit property. The respondents 2 to 5 challenged

the right of the respondents 6 to 7 herein to sell the suit property to the first respondent. They filed a suit in O.S. No. 28 of 1970 on the file of the

Additional Subordinate Judge, Pondicherry against the first respondent and respondents 6 and 7 praying for a declaration that the sale deed

executed by the respondents 6 and 7 in favour of the first respondent in respect of the suit property is void and for recovery of possession. The suit

was decreed in part and as against the decree, the first respondent preferred the appeal in A.S. No. 109 of 1976 on the file of the II Additional

District Judge, Pondicherry. The appeal was allowed in part and aggrieved against the same, the first respondent herein has preferred the above

second appeal which is pending subsequently, certain misunderstandings arose between the petitioner and the first respondent over the title and

enjoyment of the suit property. Therefore, he filed O.S. No. 355 of 1985 on the file of the Principal Subordinate Judge at Pondicherry which is

now transferred to the file of the II Additional District Munsif, Pondicherry and numbered as O.S. No. 1324 of 1986, against the first respondent

for a declaration of his title and for delivery of possession. In view of this position, he apprehends that the first respondent will not prosecute the

appeal effectively in order to wreak vengeance against him. According to him, the result in the second appeal would affect his interest and the first

respondent is colluding with the other respondents to put him to loss. Hence this petition for impleading has been filed.

The first respondent filed a counter affidavit resisting the application filed by the petitioner contending that she is not a benamidar to the petitioner

and that the petitioner has no Locus Standi to come on record especially by reason of the fact that he has already filed a suit for declaration of his

title. According to her, she is seriously prosecuting the above second appeal and that it is not open to a third party to make averments to the effect

that the suit property was purchased by her as benami for him in the present suit.

Mr. G. Masilamani, learned Counsel appearing for the petitioner contends that the petitioner came to know about the suit out of which the

present second appeal arose, only recently and, therefore, he has filed a separate suit for declaration and the same is pending. Even though the

petitioner has impleaded, the respondents as parties to the suit filed by him the result of the above second appeal would affect his interest materially

since any decision rendered by this Court in the second appeal would be construed as a bar to his claim, since the first respondent, being the

ostensible owner of the property he would be deemed to be a person representing the petitioner. In that view of the matter, his claim is likely to be

defeated in case the first respondent allows the second appeal to be dismissed or some decision is invited in collusion with the other respondents.

Mr. R. Gopalakrishnan, learned Counsel appearing for the first respondent submitted that the petitioner cannot come on record as an appellant,

since there is conflict of interest between the present appellant and the petitioner herein. Further, the claim of the petitioner regarding the benami

nature of the sale in favour of the first respondent cannot be decided in these proceedings.

It is no doubt true that the dispute between the petitioner herein and the first respondent, in so far as the benami character of the sale executed

by respondents 6 and 7 in favour of the first respondent is concerned, cannot be gone into in the present second appeal. The real question is

whether there is any conflict or interest between the two persons in so far as the claim made by respondents 2 to 5, who are challenging the sale

executed by respondents 6 and 7 in favour of the first respondent, is concerned. It should be noted that the petitioner can succeed in his suit only

when the sale deed executed by respondents 6 and 7 in favour of the first respondent is upheld. Therefore, both the petitioner and the first

respondent herein have to take up a common defence to the effect that the said sale deed is valid and binding and respondents 2 to 5 are not

entitled to challenge the said sale deed. It is only when the sale is upheld, either partially or into, the question of benami character of the said sale

deed can be considered and it is an issue only between the petitioner and the first respondent about which the other respondents are not

concerned. That is a matter which can be gone into in the suit filed by the petitioner herein. In so far as the present suit is concerned, the petitioner

is interested in seeing that his interest is not defeated by the first respondent as an appellant in the above second appeal by colluding with the other

respondents. Therefore, it cannot be stated that the petitioner has no Locus Standi to come on record as a party to these proceedings on the

ground that he has no subsisting interest in the suit property. The very object of the power conferred on the Court to implead parties at any stage is

to see that the real owners of the subject-matter of a suit are not put to loss or hardship and to give a finality to the dispute between all the persons

claiming title to the same subject-matter of the suit. Apart from that, it is just and necessary that a party, who is likely to be substantially affected by

the result of a suit or an appeal, should be impleaded as a party so that he can know what is happening in such proceedings even in cases where he

cannot get a declaration of his title in such proceedings.

It is the well-established principle that though a benamidar has the ostensible title to the property standing in his name, the property does not vest

with him but is vested in the real owner. On the other hand, he is only a name-lender or an alias for the real owner. The Courts have held that the

real owner could enforce his remedy in respect of property standing in the name of a benamidar without reference to him. This principle has found

acceptance in the following passage in Mayne''s Hindu Law, 7th Edition, paragraph 446.

Where a transaction is once made out to be a mere benami, it is evident that the benamidar absolutely disappears from the title. His name is simply

an alias for that of the person beneficially interested.

In Pitchayya v. Rattamma 55 M.L.J. 856 : 29 L.W. 56 : AIR 1929 Mad. 268, a Bench of this Court had an occasion to consider the right of a

real owner to get impleaded in a suit filed by a benamidar against third parties. It was a case where the plaintiff sued the defendants on the basis of

a mortgage executed by the first defendant. The first defendant raised the plea that the money lent on the mortgage belonged to her sister''s

husband and that the plaintiff is only a benamidar and is not entitled to a decree against her. Therefore the said real owner applied to the Court to

be made a party to the suit and the trial Court added him as a second defendant in the suit. On appeal to this Court, it was held as follows:

Where a benamidar brings a suit the result of which is likely to prejudice the right of the real owner, the Court is not debarred from making the real

owner, a party Or. l, Rule 10 gives a discretion to the Court to order that the name of any person, who ought to have been joined, whether as

plaintiff of defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate

upon and settle all the questions involved in the suit, be added.

In Gur Narayan v. Sheo Lal Singh 36 M.L.J. 68 : 9 L.W. 335 : I.R. 46 I.A. 1 : AIR 1918 P.C. 140 : ILR 46 Cal. 566, relied upon by the

appellant, their Lordships observed:

It was open to him (meaning the real owner) to apply to be joined in the action, but, whether or not he is made a party, a proceeding by or against

his representative is in its ultimate result fully binding on him. "" It is to the interest of the real owner to protect his rights when he thinks that the

action of the benamidar might prejudice him. As the benamidar is only an alias for the real owner, the real owner could always step in and say that

he is the person who is entitled to the property or contract standing in the name of the benamidar. The lower Court was justified in making

defendant 2 a party in the circumstances of the case and we find against the appellant on this point.

Therefore, there is no difficulty in coming to the conclusion that the real owner is entitled to come in as a party in a suit filed by his benamidar. Of

course, it is for the real owner to establish that the other is a benamidar for him.

The next question that arises for consideration is whether the petitioner should be impleaded as an appellant or a respondent in this appeal. As

per Section 107 C.P.C., the procedural provisions applicable to suits can also be applied to appeals or second appeals as far as it is practicable.

The present apprehension of the petitioner is that the appellant in the second appeal is likely to abandon the claim or to collude with the other

respondents in order to defeat the rights of the petitioners. As on date, such a contingency has not arisen and, therefore, it is not proper to add the

petitioner as an appellant along with the first respondent. As and when he finds the first respondent abandoning the claim, it is open to the petitioner

to invoke the provisions contained in Order 23, Rule 1-A, C.P.C., under which the Court has got ample powers to transpose a respondent as

appellant. It reads as follows:

Where a suit is withdrawn or abandoned by a plaintiff under Rule 1, and a defendant applies to be transposed as a plaintiff under Rule 10 of Or. l,

the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as

against any of the other defendants.

Whenever, the appellant withdraws or abandons the appeal, the petitioner can invoke the said provisions provided he satisfied the requirement of

the said rule. This position finds support in the decision of this Court in Govinda Iyer Vs. Kumar and Others, .

In the result, this petition is allowed impleading the petitioner as the seventh respondent in the above second appeal without prejudice to the

contentions of the respective parties in the second appeal. No costs.