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TMI Blog1989 (7) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... d exhibit 35 dated June 21, 1966, representing it as a will drafted according to her instructions and wishes. She, being an illiterate and old lady, without understanding the contents, put her thumb impression. The defendant thereafter some time in 1977 tried to oust Kamlakar, son of her brother, Laxmanrao, from the suit premises. On enquiry, she learnt that the defendant obtained her thumb impression on June 21, 1966, on deed of relinquishment surrendering her right in the suit house in favour of the defendant. She, subsequently on May 23, 1977, executed a will bequeathing the suit house in favour of Kamlakar, three other sons of Laxmanrao and the defendant. On April 29, 1978, Satyabhamabai filed a suit against the defendant, Pandurang, alleging that the thumb impression on exhibit 35 dated June 21, 1966, was obtained by fraud and misrepresentation, She, therefore, sought cancellation of the deed dated June 21, 1966, and consequential declaration that it is not binding and claimed possession of the property. The defendant, Pandurang, asserted that he is an adopted son of Yeshwantrao who died some time in 1962. He denied the ownership of the suit house and also the payment of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hattad, learned counsel, represented the respondent, Pandurang, in both the appeals. Mr. Manohar, in Second Appeal No. 135 of 1989, tried to urge that the courts below in the suit filed by Satyabhamabai ought to have held that the document styled as a relinquishment deed was obtained by fraud and misrepresentation. Admittedly, Satyabhamabai was an old and illiterate lady. Her intention to bequeath the property under the will in favour of all the sons of her brother, according to learned counsel, was adverse to the interest of the defendant, Pandurang. It was, therefore, quite natural for him to play a fraud and misrepresent. Perused with the assistance of learned counsel, the judgments of both the courts below. It could not be pointed out that the courts below committed any patent or material illegality in recording the finding. The courts below, after close scrutiny of the evidence on record, rightly reached the conclusion that Satyabhamabai failed to prove any fraud or misrepresentation in the execution of exhibit 35. The finding as recorded is just and proper. This concurrent finding does not warrant any interference in this second appeal. The courts below, even otherwise, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea, of benami purchase, of house in the name of Satyabhamabai. There was no issue either, involved or raised or framed by the court in this regard. The court was not called upon to decide the question regarding the nature of title or ownership of Satyabhamabai as reflected through exhibit C-1, i.e., original sale deed dated January 7, 1936. The trial court, has, therefore not decided any question directly or substantially involved so far as it relates to the nature of the transaction. As such, the observation made by the learned trial judge that Yeshwantrao was the real owner and Satyabhamabai was the benamidar cannot operate as res judicata in the subsequent suit filed by Pandurang for recovery of possession. Moreover, the subsequent suit filed by Pandurang against Kamlakar cannot be said to be between the same parties. In the earlier suit between Satyabhamabai and Pandurang, Kamlakar was substituted in her place as the executor of the will. However, in the subsequent suit he was impleaded, being the licensee of the respondent, Pandurang. As such both the suits cannot be said to be between the same parties so as to attract the rule laid down in section 11 of the Code of Civil Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lued at Rs. 10,000. The title of the document reads as "the deed relinquishing right of a benami purchase". It opens with the statement "in this year of 1966 she is writing this deed to relinquish right....This house is purchased in my name. In the sale consideration, not a single pie is of mine. Because of difficulties, your father purchased in my name. This right of benami purchase without taking anything in return is relinquished from today." On going through the text of the document, it is explicit that the deed unambiguous declares the intention of the executor to surrender and relinquish her right in respect of the house purchased in her name. In Mariyam Bivi v. Natharsa Rowther Trust, AIR 1978 Mad 244, it is held that instrument whereby a benamidar sustains and declares the interest of a real owner is a release deed and not a conveyance. Similar view was earlier taken in a case we reported in Chief Controlling Revenue Authority, Board of Revenue v. M . Hamid Sultan, AIR 1975 Mad 161 [FB]. The Question that comes up for consideration is as to what is the nature and extent of a right of a benamidar. It is well-settled that a person advancing consideration sometimes borrows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Krishnan [1969] 1 MLJ 173. Benamidar possesses an ostensible title. He holds and represents the property for all practical purposes to the entire world "except the real owner". Section 66 of the Code of Civil Procedure, as held by the Madras High Court, does not create any legal bar for a benamidar to recognise the title of a legal owner. He can do so by an instrument which, as held by the Madras High Court in the case of Mariyam Bivi, AIR 1978 Mad 244 constitutes a deed of release. It is well-settled that the purchaser of a property from an, ostensible owner (benamidar) is protected from the real owner save for their want of knowledge of the real owner and the benamidar can transfer a valid title in favour of a purchaser. Satyabhamabai, by a deed of release, exhibit 35, relinquished such right. She surrendered her ostensible title and her right to hold the property in her name and also the right to represent. As a result of exhibit 35" her character as an ostensible owner in respect of the property has extinguished. Since then she has no longer been a benamidar. Consequently, the suit house also ceased to be a benami property in the name of Satyabhamabai. The ostensible tit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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