IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 11077 of 2010(O)
1. STEPHEN AGED 71 YEARS,S/O.LATE CHAKKUNNY
... Petitioner
Vs
1. CHACKO S/O.PHILIP,BUSINESS,
... Respondent
For Petitioner :SRI.N.M.MADHU
For Respondent :SRI.LITTO VARGHESE PALATHINKAL
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :18/06/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.11077 of 2010
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Dated this the 18th day of June, 2010.
JUDGMENT
Petitioner who is the defendant in O.S.No.1045 of 2008 of the court of
learned Principal Sub Judge, Thrissur challenges legality and correctness of
Ext.P5, order dated 15.02.2010 on I.A.No.308 of 2009 in O.S.No.1045 of 2008.
Respondent/plaintiff claiming to have purchased 2/3 shares of the suit property
from the brothers of petitioner sued for partition and separate possession of his
share. Petitioner/defendant raised a contention that the document on which
respondent is claiming co-ownership right in the suit property is benami,
prohibited by Section 3 of the Benami Transaction (prohibition) Act, 1988 (for
short, “the Act”) and hence in view of Section 4 of the said Act respondent
cannot seek maintain an action for partition. In the light of that contention
learned Sub Judge framed issue Nos.3 and 4 relating to validity of the document
based on which respondent is claiming right. While so respondent filed
I.A.No.308 of 2009 to delete issue Nos.3 and 4. Petitioner filed I.A.No.480 of
2009 to implead his brothers who according to the petitioner continued to be real
owners of the 2/3 shares claimed by respondent and the alleged benamidar.
According to the petitioner, himself and his brothers had borrowed Rs.2,50,000/-
from one Francis Jose and executed an agreement for sale in favour of the said
Francis Jose. Brothers of petitioner executed a power of attorney in favour of
said Francis Jose who on the strength of the power of attorney executed the
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document in the name of respondent. It is the contention of petitioner that the
said document is benami and is hit by Sections 3 and 4 of the Act as stated
above. Learned Sub Judge allowed I.A.No.480 of 2009 and ordered
impleadment of the brothers of petitioner and alleged benamidar. I.A.No.308 of
2009 was also allowed whereby issue Nos.3 and 4 relating to benami
transaction and the binding nature of document relied on by respondent/plaintiff
were deleted. Learned counsel for petitioner contended that learned Principal
Sub Judge was not correct in deleting issue Nos.3 and 4 in view of the
contentions raised by respondent and particularly as learned Principal Sub
Judge found it necessary to implead brothers of petitioner and the benamidar as
parties as per order on I.A.No.480 of 2009. Learned counsel for respondent has
contended that attempt of petitioner is to protract the proceedings and so far as
the document relied on by the respondent is not in respect of 1/3 share of the
petitioner he has no reason to challenge the document in favour of respondent
as benami in character.
2. Position of law, it is not disputed is that a co-owner is as good a full
owner of every inch of co-ownership property until partition and separate
possession of the property. Until partition and separate possession, respondent
on the strength of his claim of co-ownership as per the impugned document is
entitled to claim joint possession and take part in the profits of the property.
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Petitioner is entitled to challenge the claim of co-ownership raised by the
respondent challenging the document relied upon by the respondent. Petitioner
is also entitled to contend that respondent having not acquired any valid right
over the property in view of Section 3 of the Act is not entitled to seek partition as
his claim is hit by Section 4 of the Act. Respondent cannot contend that
petitioner has no right to dispute his co-ownership right. These contentions are
very much relevant for consideration. Question whether the said contentions
are sustainable is a different matter. In view of that it is necessary to frame
issue Nos.3 and 4 as originally done by the learned Principal Sub Judge.
Deletion of issue Nos.3 and 4 in the circumstances cannot be sustained. It is no
argument to say that in so far as I.A.No.480 of 2009 is allowed and brothers of
petitioner and the alleged benamidar are impleaded issue regarding benami can
be framed only if the persons impleaded as per I.A.No.480 of 2009 raised such
a contention. Apart from the entitlement of said persons to raise such a
contention, for the reasons above stated petitioner is also entitled to raise it. As
such learned Principal Sub Judge is not correct in allowing I.A.No.308 of 2009
Resultantly, this Writ Petition is allowed in the following lines:
i. Order on I.A.No.308 of 2009 deleting issue Nos.3 and 4 is set
aside.
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ii. I.A.No.308 of 2009 will stand dismissed.
iii. It is made clear that if issue Nos.3 and 4 are already deleted
learned Principal Sub Judge shall frame those issues also for consideration.
THOMAS P.JOSEPH,
Judge.
cks