JUDGMENT
S.S. Subramani, J.
1. Plaintiff in O.S. No. 2009 of 1981, on the file of Principal District Munsif’s Court, Coimbatore, is the appellant. Suit filed by him was one for declaration that he is the real owner of the suit properties, and for the grant of a consequential permanent injunction restraining the defendants 1 to 4 from interfering with plaintiff’s title to and possession of the suit properties in any manner whatsoever.
2. Material averments in the plaint may be summarised as follows:
Plaintiff and first defendant are brother and sister. Defendants 2 and 3 are the sons of 1st defendant. It is averred that plaintiff lost his wife as early as in the year 1942. Plaintiff has got sever children of whom two are sons and five are daughters. All of them are married and are well-settled in life. It is said that his sister has married one Krishna Gounder. First defendant is the second wife of Krishna Gounder. In his first marriage, he has a son by name Palaniappa. It is said that from the year 1938 itself, first defendant and her children were under the care and protection of plaintiff, and plaintiff and 1st defendant had mutual trust and confidence in each other. It is averred that plaintiff’s father and his elder brother Arunachalam were in insolvent circumstances. The family had incurred heavy debts and all the properties belonging to the family were sold even before 1930. Plaintiff, out of his individual earnings, purchased several items which were lost to the family. Plaint items, according to plaintiff, were purchased by him with his own earnings. It is said that apart from the plaint items, plaintiff also purchased an extent of 6.18 acres of land, even during the lifetime of his father and elder brother Arunachalam. As between plaintiff and his brother, there is no documentary evidence to prove partition, and in order to avoid any claim from his elder brother, various documents were taken in the names of his sisters Maruthakkal, Valliammal and 1st defendant. It is said that as per document dated 14.12.1943, a sham document was created in favour of first defendant in regard to Item 2 in the plaint item. Neither first defendant nor her husband had any source to purchase the said property and the entire consideration was paid by plaintiff alone. Plaintiff never intended to transfer any title by virtue of the said sale deed. She is only a benamindhar and is a trustee for plaintiff. Plaintiff all along continued to be the real owner of the said item. In so far as Item No. 1 is concerned, plaintiff purchased the same as per sale deed dated 17.6.1941 from Krishna Gounder, i.e., first defendant’s husband. He purchased the same for Rs. 5,000 for valid consideration. When the sale deed was executed by Krishna Gounder, his son did not like it and it resulted in litigations in the family. O.S. No. 348 of 1946, on the file of District Munsif’s Court, Coimbatore, was filed by the son, for setting aside the sale deed. At that time, Palaniappa also drove away first defendant and her children out of her matrimonial home, and they were given protection only by the plaintiff. It is further said that the plaintiff’s elder son Ponnusami got separated from plaintiff. His other son Natarajan also got separated. While so, at the instance of his son-in-law, Natarajan, younger son of plaintiff, filed a suit for partition of the plaint items. Long before the institution of the suit at the instance of the first defendant, he executed a deed insofar as Item No. 1 was concerned, in favour of 1st defendant. The document was executed as if plaintiff received a consideration of Rs. 35,000. To create further evidence that the document is supported by consideration, a promissory note also happened to be executed for Rs. 10,000. It is said that the document was executed only to shield the property from the claims of his sons and there was no necessity for executing the said deed. It is also a sham transaction which did not come into effect. The parties also never intended that such a document should come into existence and plaintiff continued to be the real owner of Item No. 1 also. Suit filed by Natarajan as O.S. No. 519 of 1967, on the file of Second Additional Sub Court, Coimbatore, was hotly contested by plaintiff and ultimately the suit was dismissed. It is said that the decision in that case is no resjudicata nor estoppel, and the plaintiff, irrespective of the decision in that case, is entitled to get his title declared in the suit. After the decision in that suit, first defendant in this case executed a settlement deed in favour of defendants 2 to 4 as if she is the absolute owner of the property. The same was questioned by plaintiff and he wanted the document to be set aside and a proper document executed in his favour. When the demand was not complied with, a registered notice was sent for which a reply was sent denying the right of the plaintiff over the property. The suit is, therefore, filed for declaration that he continues to be the owner and the documents executed by him in respect of Items 1 and 2 are only sham and nominal, and did not come into effect.
3. In the written statement filed by defendants, they disputed the claim of plaintiff over the items. It is said that these documents were executed with an intention to give effect to them. It is further seen that in O.S. No. 519 of 1967, instituted by plaintiff’s son, plaintiff himself admitted that the properties are his self-acquisitions, and the same were validly conveyed to the first defendant. In view of that admission in the earlier suit, the present claim is barred by estoppel and res judicata. It is their contention that the plaintiff’s allegation that the sale deeds are sham and nominal, is also not correct. According to defendants, Natarajan, who was not in good terms with plaintiff, has no joined hands with him for the purpose of filing this suit. The suit is lacking in good faith, and they prayed for dismissal of the suit.
4. The trial court took elaborate evidence, both oral and documentary. On the sidebf plaintiff, Exs. A-1 to A-15 were marked, and on the side of defendants, Exs. B-1 to B-32 were marked. As oral evidence, plaintiff examined himself as P.W. 1 and an independent witness was examined as P.W. 2. On the side of defendants second defendant examined himself as D.W. 1. 4th defendant Sangham examined its Secretary Santhamurthy as D.W. 2.
5. Trial court after evaluating the entire evidence, came to the conclusion that the claim of the plaintiff that the document is sham, cannot be accepted. According to it, the document did come into effect. It was further found that the decision in O.S. No. 519 of 1967 amounts to estoppel. It further found that there was no intention on the part of any of the parties at the time when the document was executed that it should not come into effect. The document was executed with intent to transfer title to the first defendant, and she became the owner. The suit was dismissed with costs.
6. Aggrieved by the judgment, plaintiff preferred A.S. No. 162 of 1984, on the file of District Judge, Coimbatore. The lower appellate Court also confirmed the judgment of the trial court and dismissed the suit with costs. The concurrent judgment is challenged in this second appeal.
7. At the time of admission of the second appeal, the following substantial questions of law were raised for consideration:
(1) Whether the lower appellate court has committed an error in holding that the suit is barred by res judicata and estoppel?
(2) Whether the suit is barred by limitation?
(3) Whether the suit is properly framed and whether it is liable to be dismissed as not maintainable? and
(4) Whether the suit without praying for setting aside the sale deeds dated 14.12.1943 and 5.7.1966 executed by plaintiff in favour of 1st defendant, is maintainable?
8. Even though there is a finding by both the courts below that the suit is barred by res judicata and estoppel, I do not think the said finding could be supported legally. Regarding the finding of res judicata, present plaintiff and the first defendant were co-defendants in O.S. No. 519 of 1967. That suit was filed by plaintiff’s son Natarajan as if plaint items were family properties. Plaintiff herein disputed the same and a finding regarding the nature of property alone was sufficient for the dismissal of the suit. Once it is found that the plaint items are self-acquired properties, Natarajan will not be entitled to any right. The question whether the sale deed executed by plaintiff in favour of the first defendant is valid or sham was not necessary for the proper disposal of the earlier suit. At that time, there was no inter se dispute between Plaintiff and 1st defendant. Both of them joined together and contended that the property is only self acquisition. Since there was no inter se dispute between plaintiff and 1st defendant and since there was no necessity to determine the validity of the sale deeds in favour of the first defendant for giving a relief to the plaintiff in that case, the decision in the earlier case can never be a res judicata here.
9. The principle of estoppel also may not have any application to this case. None of the parties has a case that on the basis of the representation made by plaintiff, first defendant acted on the same to her detriment. Both the persons knew the real state of affairs and none acted on the representation of the other. First defendant also had no case that she suffered any loss or detriment. Mere assertion in the earlier suit by plaintiff that the property belonged to 1st defendant on the basis of the sale deed executed by him will not create an estoppel. When he gave evidence in the earlier suit, he was only asserting a right in favour of 1st defendant and first defendant also did not get any right on the basis of that assertion. Therefore, the finding that the suit is barred by estoppel, as found by the Courts below cannot be correct. Question No. 1 is, therefore, found in favour of appellants.
10. The other questions of law could be considered together. Even though I have found Question No. 1 in favour of appellants, it does not follow that he is entitled to the relief sought for. It is his case that the property continues to be under his ownership and the sale deeds executed by him in favour of 1st defendant, i.e., Exs. A-3 and A-4 are sham and nominal. When he admits that he has, executed a deed, it is for him to show that those documents did not come into effect and the same were intended to be sham. Before going into the sham nature of the transaction, we have to see what is meant by ‘sham’.
11. In one of the earliest decisions of our High Court reported in Rangappa Nayakar v. Rangasami Nayakar and Ors. A.I.R. 1925 Mad. 1005, the difference between benami transaction and sham transaction was considered. Their Lordships held thus:
The essence of a sham transaction is that though a registered deed is brought into existence no title of any kind, either legal or beneficial, is intended to be passed thereby to any person whatsoever, i.e., the deed of transfer is not intended to effect any transfer of property. The difference between sham transactions and benami transactions is one of intention. If the deed of transfer is made with the intention of placing the property in the name of a third person, the intention clearly amounts to a transfer of the legal title, and such a transaction can scarcely be called a sham transaction, but comes directly within the meaning of benami transactions properly so called.
If a sale deed is got up to fight certain third parties, the intention to be drawn from the transaction is irresistible that the legal title at any rate was intended to be passed by the transaction from the transferor to the transferee; otherwise the very object of the transfer fails.
Similar was the case in the decision reported in Biseswar v. Karbai Singh A.I.R. 1932 Pat. 129.
12. In A. Ghosh’s ‘The Law of Benami Transactions’ – 6th Edition (1987), at page 32, the learned Author has said that benami is a sham transaction. The relevant passage at that page reads thus:
The word “Benami” does not ordinarily show that the transaction is sham and ineffectual but that the actual executant has lent his name to the person who is a really a party to the contract. A nominal i.e., benami transfer is distinct from a sham transfer. In the latter, there is no intention to transfer all; while in the former, there is an intention to transfer to one’s nominee, so that he shall hold the property for himself openly, but secretly for the transferor using the document as a cloak to save it from his creditors. The essence of a sham transaction is that though a deed of transfer brought into existence, no title of any kind, either legal or beneficial, is intended to be passed thereby to any person whatever, that is the deed of transfer is not intended to effect any transfer of property. The difference between sham and benami transaction is one of intention. If the deed of transfer is made with intention of placing the property in the name of the third person the intention clearly amounts to a transfer of the legal title and such transaction cannot be called a sham transaction but comes directly within the meaning of benami transactions, so called. When there is a fictitious transaction with regard to a property, no title passes, notwithstanding the execution and registration of the documents; the transaction may fittingly be described as essentially a mark of thermal ownership. A benamindhar is in no sense an owner of the property. A benami transaction is perfectly genuine transaction which is legally enforceable and the term benami should not be regarded as being equivalent to not genuine. So also to speak of a benami gift is a contradiction in terms, for either there was a gift, in which case the donee obtained title to the property or there was not a genuine valid gift. A benami transaction has the same effect as a resulting trust.
[Italics supplied]
13. In a Full Bench decision of the Kerala High Court reported in Bhargavy P. Sumathykutty v. Janaki Sathyabhama (F.B.), the entire law was considered. Their Lordships were considering a question whether a sham transaction comes within the ambit of Benami Transactions (Prohibition) Act, 1988. The Full Bench confirmed the view taken by a learned single Judge of that High Court in the decision reported in Ouseph Chacko v. Raman Nair , wherein, in paragraphs 12 to 17, the learned Judge had held thus:
Benami transactions, a dealing common to all communities and prevalent in this country for a very long time have received judicial recognition from very early times, as would be seen from the classic decisions of the Privy Council in Gosain v. Gosain (1895) 6 M.I.A. 53 in Bilas Kumwar v. Rajit Singh 29 M.L.J. 335 : L.R. 42 I.A. 202 : A.I.R. 1915 P.C. 96 in Gur Narayan v. Sheolal Singh 36 M.L.J. 69 : I.L.R. (1919) 46 Cal. 566 : L.R. 46 I.A. 1 : A.I.R. 1918 P.C. 140.
What, then, was benami transaction, as understood prior to the Act. As early as 1908, the Privy Council in Pethaperumal Chetty v. Muniandy Servai I.L.R. (1908) 35 Cal. 551 approved the statement in Mayne’s Hindu Law (7th Edition) as correct. The Privy Council observed thus:
In Mayne’s Hindu law (7th Ed. P. 595 para. 446) the result of the authorities on the subject of benami transactions is correctly stated thus:
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. The fact that A has assumed the name of B in order to cheat X can be no reason what ever why a Court should assist or permit B to cheat A. But, if A requires the help of the court to get the estate back into his own possession, or to get the title into his own name, it may be very material to consider whether A has actually cheated X or not. If he has done so by means of his alias, then it has ceased to be a mere mask, and has become a reality. It may be very proper for a court to say that it will not allow him to resume the individuality, which he has once cast off in order to defraud others. If, however, he has not defrauded any one, there can be no reason why the court should punish his intention by giving his estate away to B, whose roguery is even more y complicated than his own. This appears to be the principle of the English decisions. For instance persons have been allowed to recover property, which they had assigned away where they had intended to defraud recreditors, who, in fact, were never injured. But where the fraudulent or illegal purpose has actually been effected by means of the colourable grant, then the maxim applied; In pari delicto potior est conditio possidentis. The Court will help neither party. “Let the estate lie where it fails.
The judicial committee of the Privy Council in Gurnarayan v. Sheolal Singh A.I.R. 1918 P.C. 140, described the nature of benami thus:
The system of acquiring and holding property and even of carrying on business in names other than those of the real owners, usually called the benami system, is and has been a common practice in the country…. The rule applicable to benami transactions was stated with considerable distinctness in a judgment of this Board delivered by Sir George Parwell. Referring to a benami dealing, their Lordships say : “It is quite unobjectioable and has a curious resemblance to the doctrine of our English law that the trust of the legal estate results to the man who pays the purchase money, and this again follows the analogy of our common law that where a feoffment is made without consideration the use results to the feoffer.
So long, therefore, as a benami transaction does not contravene the provisions of the law, the Courts are bound to give it effect. As already observed, the benami has no beneficial interest in the property or business that stands in his name; he represents, in fact, the real owner, and so far as their relative legal position concerned, he is a mere trustee for him….
In the 57th report of the Law Commission of India on benami transactions, regarding benami transactions in general, it was stated, with reference to judicial decisions, thus:
Principle that transaction is presumed to be for benefit of person providing money: The principle is that where property is acquired in the name of one person but the purchase price is paid by another, a presumption arises that the transaction was one for the benefit of the person providing the money. Such cases are common in India where ‘Benami’ transactions are recognised.
Benamidar representing the true owner:
In general, the benamidar fully represents the owner of the property in dealings with the third persons. In fact, that is the very object of benami transactions. The property stands “in the name” of the benamidar, and a third party would not be able to challenge his title so long as the real owner does not come in the picture.
Position as between real owner and third parties : As to the position between the real owner of the property 8and third parties, ordinarily the real owner will not have an occasion to make any assertions about title. If, however, such a situation does arise, then law will have regard to the reality, and (disregarding the ostensible title of the benamidar), the law will allow the real owner to assert his ownership, as a general rule.
Is there any difference between benami and sham transaction? In a very early decision of the Madras High Court in Rangappa v. Rangasami A.I.R 1925 Mad. 1005, it was held thus:
The essence therefore of a sham transaction is that though a registered deed is brought into existence, no title of any kind, either legal or beneficial is intended to be passed thereby to any person whatsoever, that is to say, the deed of transfer is not intended to effect any transfer of property. The difference therefore, between sham transactions and benami transactions is one of intention. If the deed of transfer is made with the intention of placing the property in the name of third person, the intention clearly amounts to a transfer of the legal title and such a transaction can scarcely be called a sham transaction, but comes directly within the meaning of benami transactions property so called.
It is unnecessary to refer to the other decisions of the High Court, for we have the direct authority of the Supreme Court in at least two decisions. In Meenakshi Mills Ltd. v. I.T. Commissioner , Justice Venkatarama Ayyar speaking for the court held thus:
In this connection, it is necessary to note that 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 to 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.
In Bhim Singh v. Kan Singh , it was held thus:
Two kinds of benami transactions are generally recognised in India. Where a person buys a property with his own money but in the name of another person without any intention to benefit such other person, the transaction is called benami. 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. The second case which is loosely termed as a benami transaction is a case where a person who is the owner of the property executes a conveyance in favour of another without the intention of transferring the title to the property thereunder. In this case, the transferor continues to be the real owner. The difference between the two kinds of benami transactions referred to above lies in the fact that whereas in the former case there is an operative transfer from the transferor to the transferee though the transferee holds the property for the benefit of the person who has contributed the purchase money, in the latter case, there is no operative transfer at all and the title rests with the transferor notwithstanding the execution of the conveyance. One common feature, however, in both these cases is that the real title is divorced from the ostensible title and they are vested in difference persons. The question whether a transaction is a benami transaction or not mainly depends upon the intention of the person who has contributed the purchase money in the former case and upon the intention of the person who has executed the conveyance in the latter case. The principle underlying the former case is also statutorily recognised in Section 82 of the Indian Trusts Act, 1882, which provides that where property is transferred to one person for a consideration paid or provided by another person and it appears that such other person did not intend to pay or provide of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration.
The above view of the learned single Judge on the basis of legal principles laid down by the Supreme Court and various High Courts, was upheld by the Full Bench of the Kerala High Court. It may also be noted that the decision of this Court reported in Rangappa Nayakar v. Ramasami Nayakar A.I.R. 1925 Mad. 1005, was also accepted as the correct principle.
14. In the Full Bench decision of the Kerala High. Court referred to supra, it was held thus:
Before the Benami Act (1988), and even before the promulgation, of the Ordinance, courts in India have, by and large, recognised two distinct classes of transactions as Benami. The first type or class of Benami transaction was called the real benami transaction. A typical instance of it is when ‘ A’ sells a property to’ B’, but the sale-deed mentions ‘C’ as the purchaser. Here the real purchaser I is ‘B’ and ‘C’ is only the benamidar. Such a transaction (in which 3 persons are involved) is described as the real benami transaction (or may be called as tripartite benami transaction). The second class or category of benami transaction is the sham transaction (or pipartite benami transaction since two persons are involved) in which one person purports to transfer his property to another without intending to pass the title to the transferee. This second type of transaction was “loosely” called benami transaction. The fundamental difference between the two categories of transactions is this : In the former, there is an operative transfer resulting in vesting of title in the transferee, whereas in the latter, there is no operative transfer and the transferor continues to retain title of the property notwithstanding execution of the document. The latter transaction is known as “shami transaction”.
15. In view of the above legal principle, the question to be considered is, whether plaintiff is successful in leading evidence that the document did not come into effect, and the same was nominal.
16. In all the cases which I have cited above, their Lordships held that the intention of the parties is very material. In case of ordinary benami transactions, title passes but stands in the name of a third person. But in the case of a sham transaction, even though there is a registered deed, the same is not intended to come into effect. That is why the plaintiff in this case has pleaded that though he has executed two sale deeds Exs. A-3 and A-4, the real title continues with him. We have to see whether there was an intention on the part of plaintiff to create a sham transaction.
17. So far as Item No. 2 is concerned, para 6 of the plaint contains the relevant pleading. The property originally belonged to the family. Plaintiff’s father and his elder brother were in insolvent circumstances, and the property belonging to the family was sold or had gone out of the family before 1930. Plaintiff was then a younger junior member. It is his case that he apprehended that his elder brother Arunachalam and his sons are likely to put forward a claim and, therefore, he executed a sale deed under Ex. A-2 in favour of first defendant. He purchased the same under Ex. A-1, i.e., dated 26.6.1939. If it is his case that he was a junior member and the family had also lost all the properties, there could not have been any fear of any possible claim either by Arunachalam or his sons over the same. Nobody has a case that the plaintiff was managing the properties. Having purchased the property in his name, merely by transferring in the name of the first defendant, Arunachalam or his sons will not lose their right, if in fact they had a valid claim for them. If the sale deed had been taken in the name of the first defendant, probably there will be some basis for such an argument. From 1939 till 1943, plaintiff continued to be the owner. If during that time, Arunachalam and his sons did not have any claim, there was no necessity for plaintiff to transfer it in the name of first defendant so as to avoid a claim. In fact, even after Ex. A-2, neither Arunachalam nor his sons put forward a claim over the said items. The so-called intention on the part of the plaintiff that he wanted to shield the properties from his elder brother, according to me, is a story, which can never be believed.
18. In so far as Item No. 1 is concerned, the same was acquired by plaintiff under Ex. A-3 on 17.6.1941, and, for more than 25 years, he continued to be the owner. It was only on 5.7.1966, he sold the same to the first defendant under Ex. A-4. It is his case that he apprehended that a suit may be filed by his son Natarajan and, therefore, to shield the property from his son, a document was executed in favour of the first defendant. That is not going to save the plaintiff in any way. In the suit that was instituted by Natarajan as O.S. No. 519 of 1967, both plaintiff and first defendant contested the suit, alleging that the property is his self-acquisition. That contention was accepted. In fact if that is a self-acquisition, Natarajan cannot have any claim over the property, and that was the reason for dismissal of the suit. By executing Ex. A-4, the nature of acquisition is not going to change. Even if Ex. A-4 is not executed, Natarajan will not have nay claim over the property. In that case also, the intention alleged in the plaint cannot be accepted by a Court of Law.
19. If that intention is given a go by, how the parties dealt with the property thereafter is to be seen. In so far as Item No. 2 is concerned, the case of plaintiff is that the 5th defendant is his lessee. Both the Courts below have found that the first defendant is the landlord and 5th defendant is the lessee under the first defendant. No document has been filed in this case to show that the plaintiff created a lease and that he has received rent so far as Item No. 2 is concerned. It is also found that it was the first defendant who exercised the right of ownership. The patta stands in her name. Kist is also paid by her and she was dealing with the property as absolute owner. Same is the case in so far as Item No. 1 is concerned. Possession was found to be with first defendant.
20. One of the material points that has to be considered is, whether there was passing of consideration for Exs. A-2 and A-4. Both the trial court as well as lower appellate court has entered a finding that the plaintiff did receive the consideration and the debts of plaintiff were also discharged by first defendant. If the document is one for consideration, that is also one circumstance which belies the sham nature. The custody of the sale deed is also with the first defendant. It was she who produced the document before Court. Along with the same, the unequivocal admission of plaintiff in O.S. No. 519 of 1967 that the property absolutely belongs to first defendant and title has passed on her as per Exs. A-2 and A-4 also goes a long way against him. Even though it may not be estoppel or res judicata, the admission by itself is a good piece of evidence as against him. Plaintiff has attempted to withdraw that admission, but has miserably failed in that attempt. Both the courts below have concurrently held that the transactions are not sham, and the first defendant became the owner.
21. These concurrent findings do not call for any interference, since they are based on appreciation of evidence.
22. I do not think, question Nos. 2, 3 and 4 really require consideration in this case. For, even otherwise, I have found that the plaintiff has no title to the property. The question of limitation may not arise. If ultimately the plaintiff was successful in his attempt that he continues to be the owner in possession, the suit is not barred under Section 9 of the Code of Civil Procedure, and it cannot be said that the suit is not maintainable. The suit is of civil nature. The question of setting aside the sale deed also will not arise, when the plaintiff has put forward a case that it is sham. As I have said earlier, a sham transaction is one which has never come into existence and, therefore, the question of setting aside the same does not arise. But, on appreciation of evidence, I have held that plaintiff is not entitled to a decree as prayed for. Exs. A-2 and A-4 executed for consideration and the same did come into effect. If so, plaintiff has lost title to it.
23. Confirming the judgments of the courts below, I dismiss the second appeal, however, without any order as to costs.