Odgers, J.:— This was a suit brought by one Kulandai Velu Pillai, the adopted son of Muthu Kumara Pillai, for the recovery of possession of the suit land's which as he alleged had been trespassed upon by defendant 2 in October 1914. The appeal really binges on the effect, if any, to be given to Ex. 1. It purports to be a sale-deed dated 8th June, 1899 executed by Muthukumaru Pillai in favour of his son-in-law Ramaswami Pillai, defendant 1, and as alleged by the plaintiff was a benami sale-deed without consideration. It was executed for a certain purpose set out in para. 5 of the plaint. The defence of defendant 1 was that the sale-deed Ex. 1 was a perfectly valid deed and a proper price had been paid for the lands in question. The finding of the District Munsif is that no consideration was paid by defendant 1 for Ex. 1 and that when it was executed it was intended only to be a nominal transaction. That being so, the learned District Munsif went on to find that in spite of these findings Ex. 1 could be used long afterwards, namely in 1910 by way of gift or rather to give effect to a document which was originally a nominal transaction but which had ceased to be such and which had been given effect to either before or about the time of the adoption of the plaintiff. There is some evidence that the father-in-law Muthukumaru Pillai did intend to benefit his son-in-law and his daughter in some way, for instance, he effected a change of patta with the revenue authorities and gave them possession of the lands. Ex. 1 was executed, as found with the intention of being a purely nominal transaction; that is to say, of having no legal effect. Can it then be said that the executant of this nominal transaction by a change of intention can afterwards use it for a transaction which would be valid in law? In my opinion, there are several very obvious objections to the re-employment, if one may so call it, of a document of this description. There are evasions of the stamp law, the registration law and the fiction that you are to regard the recitals in Ex. 1 as non exists and as conferring what is practically a gift on the person to whom Ex. 1 is handed over. We have been shown no authority by which the executant of a document executed with one intention can by change of mind utilize that document for a transaction of a wholly different character. There is another very short objection to this second appeal and that is this, that this case was never set up in the pleadings or the issues but has apparently been found by both the lower Courts from motives of sympathy with the daughter and son-in-law of Muthukumaru Pillai. It seems to me that such is out of place in a second appeal and we must strictly confine ourselves to the question of law that has been raised and for which, as I say, no authority has been cited. A case has been quoted by Mr. Vaz, the learned counsel for the appellant from Bai Motivahoo v. Purushotam Dayal(1), an expression of opinion of Sir Lawrence Jenkins on p. 315, which is perhaps as near as one will get to anything in the reports. The cases on gift or long possession amounting to evidence of gift quoted by the learned vakil for the respondents do not seem to me to have any bearing on the present case where the evidence, given on the perfectly straightforward and simple case set up in the pleadings and the issues, has been directed by both the lower Courts to this finding of a re-utilization of Ex. 1 for giving it the effect of a gift-deed. For these reasons I think the second appeal must be allowed with costs throughout.
2. Devadoss, J.:— I agree. I only wish to add that when a document is executed without the intention of conveying title by one person in favour of another, it cannot afterwards be used for the purpose of conveying title merely because one of them changes his mind and wants the document to be operative. When a document is once executed as a nominal document, that is to say, without intending to convey any title, it cannot afterwards be used for the purpose of conveying title.
3. Appeal allowed.