JUDGMENT <NAME>, C.J.

1. This is an appeal by the defendants from the decision of the Officiating District Judge of Muzaffarpur, dated the 24th September 1917, reversing a decision of the Additional Subordinate Judge, dated the 24th February 1917.

2. The suit was instituted by the plaintiff on the 10th June 1915 claiming a declaration of title to a 4 annas 13 gandas 1-cowrie 1-krant share of <NAME> bearing <NAME> No. 10005 recorded in the name of the defendants as proprietors, and confirmation of his possession. He further claimed a declaration that he was entitled to get his name registered in the mutation department in respect of the disputed share and the removal of the names of the defendants and an injunction restraining them from proceeding with a partition suit before the Collector in respect to the share in dispute. The plaintiff is admittedly the proprietor of the remaining II annas odd comprising 16 annas of the <NAME> number in question. The entire property was originally an 8-annas pucca share of the said village and belonged to one Sheikh <NAME>, the ancestor of both the plaintiff and the defendants. <NAME> left three sons and one daughter, who upon his death succeeded to his 8-annas share of the property, each of the sons taking 2 annas 6 gandas 2 cowries 2 krauts and the daughter 1 anna. One of the sons, <NAME>, is the grandfather of the present plaintiff. Another of the sons, <NAME>, is the grandfather of the defendant No. 1. The third son <NAME> transferred his share to his widow <NAME> by a baimokasa deed in the year 1312. The plaintiff's case is that <NAME> acquired in addition to the share of her husband the 1-anna share of <NAME>, the daughter of <NAME> as well as the 2.annas 6-gandas odd share of <NAME> by transfer from his son <NAME>, the father of the defendant No. 1, that <NAME>'s share passed to <NAME> and <NAME>, his two sons, the father and uncle of the plaintiff, and the latter having died his share as well as that of <NAME> devolved upon him, the plaintiff, that <NAME> transferred the whole share which she had acquired from her husband, her sister-in-law <NAME> and <NAME>, amounting to 5 annas 13 gandas odd, to <NAME> and <NAME>, the father and uncle of the plaintiff, in the year 1855. The uncle died childless and consequently in due course the whole 8-annas share originally held by Sheikh <NAME> thus cams into the possession of the plaintiff on the death of his father <NAME>. This 8-annas share, which was part of <NAME> No. 1162 of the village in question was in the year 1863 formed into a separate patti bearing <NAME> No. 10005. This partition was made at the instance of the plaintiff's father <NAME>, and the plaintiff's case is that his father and uncle remained in undisturbed possession of the whole property down to the year 1876. In that year the entire patti was brought to sale in execution of a decree obtained by one <NAME> against the plaintiff's father and uncle and was purchased by one <NAME>. Before the sale objections were taken to the attachment of the property in the name of <NAME>, claiming as proprietor of the 2-annas 6 gandas odd share which be had inherited from his father, and by two sisters of the plaintiff's father under Section 278 of the old Code of Civil Procedure. These objections were disallowed and two regular suits ware, instituted on behalf of the respective objector setting up a claim to portions of the property. Notwithstanding these suits, however, the sale proceedings were continued and the property was sold and purchased by <NAME>. The decree-holder <NAME> was originally the principal defendant in these suits, but after the sale the auction-purchaser <NAME> was made the principal defendant. The judgment-debtors, the plaintiff's father and uncle, were also defendants in the suit. The suit brought in the name of <NAME> was subsequently settled by the auction-purchaser confessing judgment in favour of the plaintiff <NAME> and it was ordered that according to the confession of judgment by <NAME>, a decree for declaration of title in favour of <NAME> should be passed. The plaintiff's case with regard to this suit and the circumstances attending it is that it was in the first instance an attempt instigated by his father and uncle to endeavour to save their property from attachment by setting up <NAME> as a claimant to the 2 annas 6 gandas odd share which still remained recorded in his name, that the auction-purchaser <NAME> was under an obligation to the plaintiff's father who was a hakim and in the habit of attending <NAME> in that capacity, and that in order to discharge his obligation he consented to transfer the purchased property back to the plaintiff's father but that instead of executing a kobala in favour of the plaintiff's father for that purpose, he confessed judgment in the suits brought both by <NAME> and the two sisters of the plaintiff's father in respect of the shares claimed by them and with regard to the remaining shares he executed a kobala in favour of one <NAME>, a friend of his, as benamidar for the plaintiff's father. The object of this was according to the plaintiff's case, that <NAME> the plaintiff's father was desirous of keeping this particular property out of the hands of his creditors. The evidence shows, however, that there was in fact no fraud perpetrated on any of the creditors of <NAME> as they were all paid off, and subsequently <NAME> transferred his share by a ladavi deed to the plaintiff in 1897 and about the same time the shares of the two aunts of the plaintiff were also recorded in the name of the plaintiff's wife. The share of <ORG>, however, remained recorded in his own name, although it is the plaintiff's case that both he and his father, before him were in sole possession and control of the property and that <NAME> was merely their benamidar, and it Was not until the year 1914 when ill-feeling arose between the plaintiff and the defendants that the latter endeavoured to get possession of the share recorded in their name by filing a petition for partition before the Collector. Hence the present suit claiming a declaration of the plaintiff's title.

3. Before the Subordinate Judge the main issues were, first, whether the 5-annas 18-gandas odd share transferred by <NAME> to the plaintiff's father and uncle in 1855 included the 2-annas 6'-gatndus odd share of <NAME> and, secondly, whether the compromise in the suit of 1873 made between <NAME> and <NAME> was really part and parcel of a benami transaction wherein <NAME> was acting merely as the benamidar of the plaintiff's father. With regard to the first point there was no direst documentary evidence showing a transfer of <NAME>'s share to <NAME> before 1855, and the only documentary evidence in support of this was a petition in 1861 whereby the plaintiff's father applied for registration of his name in respect of the 5-annas 13-gandas odd share purchased from <NAME>, in which he recites that this covered, in addition to the 2 annas 6 gandas odd which she received from her husband, the 2 annas 6 gandas transferred by <NAME> as well as the P-anna shara transferred to her by <NAME>. As the whole share of the family was an 8-annas share and as <NAME> admittedly acquired 3 annas 6 gandas odd from her husband and <NAME>, there was no other source from which she could have acquired the other 2 annas 6 gandas, odd making up the 5 annas 13 gandas, except from <NAME> unless she acquired <NAME> share, and there was no evidence to show that <NAME> ever parted with his interest. On the other hand, the oral evidence went to show that <NAME> share descended by inheritance to the plaintiff's father and uncle and ultimately to the plaintiff, The Subordinate Judge found all issues in favour of the defendants and dismissed the suit.

4. The District Judge took a different view of the facts and came to the conclusion that the plaintiff had made out his title to the whole 8 annas share including that Originally -held by, <NAME>, and that the transaction which took place at the date of the suit brought by <NAME> in 1876 was a benami transaction in which <NAME> merely represented the plaintiff's father.

5. It has been urged before us on behalf of the appellants that there is no real evidence to support these findings. It is contended that the recitals in the petition of 1861, when the plaintiff's father applied for registration of his name, are not admissible in evidence against <NAME> and as no deed of transfer by <NAME> to <NAME> has been produced, there is nothing from which it can be inferred that <NAME> ever did in fact part with his share. The plaintiff's case was that the deed of transfer had been lost but that nevertheless from all the circumstances of the case a legitimate inference might be drawn that his father had in fact acquired from <NAME> the shara which originally belonged to <NAME> and as the transfer of a 5-annas 13 gandas odd share from <NAME> had undoubtedly been proved and as he acquired by inheritance the 2-annas 6-gandas odd share of his grandfather <NAME>, this accounted for the whole 8-annas share. The further fact that <NAME> in 1853 without any intervention on the part of <NAME> had applied for and obtained a bitwara rubakar whereby the whole 8-annaa share was divided into a separate patti supported this view. The learned District Judge did not come to any definite finding on this part of the case but based his decision upon the fact that when <NAME> obtained his decree against the plaintiff's father and uncle in 1876 and got an attachment of the whole 8 annas share which was purchased by <NAME>, the arrangement then come to where by <NAME> confessed judgment in the suits brought against him was an arrangement whereby it was intended to transfer the property to the plaintiff's father in the benami name of <NAME> and others.

6. It is unnecessary to deal in detail with the evidence relied upon in support of this conclusion. These was undoubtedly evidence to support it to which the learned Judge refers. The only real attack made by the appellants against this part of the judgment was first that it was net competent to the plaintiff to contend that <NAME> was acting as his benamidar, as the plaintiff's father admittedly lent himself to this transaction with a view to defeating his creditors, and secondly, that the decree in the suit brought by <NAME> against <NAME> and the plaintiff's father and uncvle in 1876 was res judicata and binding on all parties to that suit including the plaintiffs predecessors-in-title. In support of the first contention the appellants rely upon the case of <CITATION> 20 M. 326 7 Ind. Dec. (n.s.) 231, where it was held under circumstances somewhat similar to the present that a plaintiff who had transferred his land to another in order to defeat an attaching creditor, the creditor subsequently consenting to a decree upholding the title of the transferee, was not entitled to a declaration that his name should be retained on the register as owner when the transferee had applied to be registered in his place. The authority of this case has been questioned and dissented from in the later case of <CITATION> 33 C. 967 : 4 C.L.J. 22 : 10 C.W.N. 650, where <NAME> and <NAME>, <ORG>., held that where the mere intention to commit a fraud has not been carried into effect, a beneficial owner is entitled to sue for a declaration that a deed of transfer executed by him was, merely a benami transaction. Although there has been some diversity of opinion upon the question, I think the decision in the later case expressed the true view A, transfer which is merely colourable and made with the intention of defrauding creditors can always be sat aside by the transferor at any time before the fraud has actually taken place. Bat if the fraudulent intention has succeeded, the <ORG> will not assist either party claiming under such a transaction. In the present case it is shown that nobody in fact was defrauded and that the creditors of the plaintiff's father were all paid off. In my opinion the principle relied upon by the appellants on this part of the case has no application to the present circumstances.

7. With regard to the second paint the question whether <NAME> was acting as benamidar for the plaintiff's father was not raised or decided in that suit. The decree was merely passed in favour of the plaintiff upon the confession of judgment by <NAME>, the principal defendant. There seems to be no reason why the present plaintiff should be estopped from contending that <NAME> was merely his benamidar. In my opinion this appeal fails and, must be dismissed with costs.


PETITIONER: B.R. RAMABHADRIAH Vs. RESPONDENT: SECRETARY, FOOD & AGRICULTURE DEPARTMENT ANDHRA PRADESH &ORS DATE OF JUDGMENT30/07/1981 BENCH: <NAME>, <NAME> (J) BENCH: <NAME>, <NAME> (J) VENKATARAMIAH, E.S. (J) CITATION: 1981 AIR 1653 1982 SCR (1) 159 1981 SCC (3) 528 1981 SCALE (3)1103 ACT: Constitution India 1950, Art. 226- Relief under-<ORG> whether competent to take note of changed circumstances and grant smaller relief than claimed in writ petition. HEADNOTE: The appellant, an officer of <ORG> challenged the provisional integrated gradation list of Forest Officers of the former Andhra and Hyderabad States published under the provisions of the States Reorganisation Act , 1947, in his writ petition, contending that (a) the inter-se seniority between the appellant and the 6th respondent, both of whom originally belonged to <ORG>, had been wrongly fixed by showing the 6th respondent as senior to the appellant whereas the appellant was legally entitled to seniority over the 6th respondent, and (b) that respondent nos. 3, 4, 5, 7 and 8 officers allotted to the State of Andhra Pradesh from the Telengana region of the former Hyderabad State, had been erroneously assigned ranks above the appellant in violation of the principles laid down by <ORG> for equation of posts and fixation of inter-se seniority. During the pendency of the writ petition <ORG> set right the appellant's grievance concerning his ranking and seniority in relation to respondents 3, 4, 5, 7 and 8. When the writ petition came up for hearing the appellant pressed only his claim for seniority over the 6th respondent and as the contention was well founded, the learned Single Judge, allowed the writ petition and issued a writ of mandamus directing <ORG> to modify the gradation list by showing the appellant as senior to the 6th respondent. In the appeal to <ORG> by the 6th respondent, <ORG> took the view that since the prayer contained in the writ the petition was for the issue of a writ of mandamus directing respondents nos. 1 and 2 to forbear from implementing the provisional gradation list published alongwith the Government Order dated January 27, 1962 and as the appellant had not pressed the prayer for quashing of the list in so far as it related to the officers of Telengana region viz. respondents 3, 4, 5, 7 and 8, the writ petition should have been dismissed on that short ground and the question relating to the inter-se seniority between the appellant and the 6th respondent ought not to have been decided. <ORG> allowed the writ appeal, set aside the order passed by the single Judge and dismissed the writ petition. Allowing the appeal to this <ORG>, 160 ^ HELD: In an action where a party has prayed for a larger relief it is always open to the <ORG> to grant him any smaller relief that he may be found to be entitled to in law and thereby render substantial justice. The <ORG> can take note of changed circumstances and suitably mould the relief to be granted to the party concerned in order to mete out justice. As far as possible the anxiety and endeavour of the <ORG> should be to remedy an in justice when it is brought to its notice rather than deny relief to an aggrieved party on purely technical and narrow procedural grounds. [162 G-163 A] In the instant case the writ petition contained the prayer for the quashing of the gradation list in so far as it related to the inter-se ranking of the appellant vis-a- vis respondents nos. 3 to 8 and the appellant had also sought the issuance of a writ of mandamus directing respondents nos. 1 and 2 to forbear from implementing or acting upon the said gradation list. Subsequent to the institution of the writ petition <ORG> had refixed the ranks of respondents nos. 3, 4, 5, 7 and 8 and placed them below the appellant thereby redressing the grievance of the appellant in so far as it pertained to the ranking of the said respondents. It, therefore, became unnecessary for the appellant to pursue his claim for relief with respect to the ranks assigned to those five respondents. It was under those circumstances that the appellant submitted before the single Judge at the time of final hearing of the writ petition that he was pressing the writ petition only in so far as it related to his claim for seniority over the 6th respondent. This will not operate to preclude him from seeking a lesser relief namely the quashing of the list only in so far as it pertains to the fixation of the inter-se seniority between himself and the 6th respondent. [162 B-F] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2050 of 1973.

Appeal by special leave from the judgment and order dated the 14th October, 1971 of <ORG> in Writ Appeal No. 691 of 1970.

<NAME> for the Appellant.

<NAME> for Respondent No. 2.

<NAME> for Respondent No. 6.

The Judgment of the Court was delivered by <NAME>, J. This appeal preferred by special leave is against the judgment of <ORG> of <ORG> setting aside the decision of a learned single judge of that Court and dismissing a writ petition filed by the present appellant.

The appellant, who was working as an officer of <ORG> in the State of Andhra Pradesh, approached <ORG> challenging the provisional integrated gradation list of <ORG> officers of the former Andhra and Hyderabad States published under the provisions of the States Reorganization Act, as annexure to a <ORG> order dated January 27, 1962. The contentions raised by the petitioner in the writ petition were mainly two-fold. Firstly, it was urged that the inter-se seniority between the appellant and the 6th respondent, both of whom originally belonged to <ORG>, had been wrongly fixed in the provisional gradation list by showing the 6th respondent as senior to the appellant, whereas the appellant was legally entitled to seniority over the 6th respondent. Secondly, it was contended that respondents Nos. 3, 4, 5, 7 and 8 who were officers allotted to the State of Andhra Pradesh from the Telengana region of the former Hyderabad State, had been erroneously assigned ranks above the appellant in the integrated gradation list in violation of the principles laid down by <ORG> for equation of posts and the fixation of inter-se seniority between the persons drawn from the two sources.

By the time the writ petition came up for hearing before the learned single judge, <ORG> had already set right the appellant's grievance concerning his ranking and the seniority in relation to respondents 3, 4, 5, 7 and 8. It therefore became unnecessary for him to pursue the second contention aforementioned and hence he pressed before the learned single judge only the plea concerning his claim for seniority over the 6th respondent was well founded. Accordingly, the learned single judge found that the contention put forward by the appellant that he was entitled to seniority over the 6th respondent was well founded. Accordingly, the learned judge allowed the writ petition and issued a writ of mandamus directing <ORG> and <ORG> to modify the gradation list by showing the appellant as senior to the 6th respondent.

The 6th respondent carried the matter in appeal before <ORG> of <ORG> by filing Appeal No. 691 of 1978. The Division Bench took the view that since the prayer contained in the writ petition was for the issue of a writ of mandamus directing respondents No. 1 and 2 to forbear from implementing the provisional gradation list published along with the <ORG> order dated January 27, 1962, and inasmuch as the petitioner had not pressed the said prayer for quashing of the list in so for as it related to the officers of Telengana region (respondents 3, 4, 5, 7 and 8), the writ petition should have been dismissed on that short ground and the question relating to inter-se seniority between the petitioner and the 6th respondent ought not to have been decided by the learned single judge. In this view, <ORG> allowed the writ appeal, set aside the order passed by the learned single judge and dismissed the writ petition. The appellant has come up to this Court questioning the legality and correctness of the aforesaid reasoning and conclusion of <ORG>.

It is true that the writ petition contained a prayer for the quashing of the gradation list in so far as it related to the inter-se ranking of the petitioner vis-a-vis respondents Nos. 3 to 8 and the petitioner (appellant) had also sought the issuance of a writ of mandamus directing respondents Nos. 1 and 2 to forbear from implementing or acting upon the said gradation list. But subsequent to the institution of the writ petition, <ORG> has refixed the ranks of respondents Nos. 3, 4, 5, 7 and 8 (Telengana officers) and placed them below the appellant thereby redressing the grievance of the appellant in so far as it pertained to the ranking of the aforesaid respondents. It therefore became unnecessary for the appellant to pursue his claim for relief with respect to the ranks assigned to those five respondents. It was under those circumstances that the appellant submitted before the learned single judge of <ORG>, at the time of final hearing of the writ petition, that he was pressing the writ petition only in so far as it related to his claim for seniority over the 6th respondent. We fail to see how the fact that the appellant had sought in the writ petition the issuance of a writ of mandamus directing respondents 1 and 2 to forbear from implementing or acting upon the provisional gradation list will operate to preclude him from seeking a lesser relief, namely, the quashing of the list only so far as it pertains to the fixation of the inter-se seniority between himself and the 6th respondent. The material facts and circumstances had undergone a substantial change subsequent to the filing of the original petition and it was in consequence thereof that it had become unnecessary for the petitioner to pursue his original prayer for the grant of a larger relief. Besides ignoring this crucial aspect, <ORG> of <ORG> has also lost sight of the well established principle that in an action where a party has prayed for a larger relief it is always open to the court to grant him any smaller relief that he may be found to be entitled in law and thereby render substantial justice. The <ORG> can undoubtedly take note of changed circumstances and suitably mould the relief to be granted to the party concerned in order to mete out justice in the case. As far as possible the anxiety and endeavour of the <ORG> should be to remedy an injustice when it is brought to its notice rather than deny relief to an aggrieved party on purely technical and narrow procedural grounds. We do not, therefore, find it possible to uphold the view expressed by <ORG> of <ORG> that since the writ petition was not pressed in so far as it related to the officers belonging to the Telengana region the question of inter-se seniority between the writ petitioner and the 6th respondent should not have been considered by the single judge and the writ petition should have been dismissed.

Accordingly, we set aside the judgment of <ORG> and remand the writ appeal to <ORG> for fresh disposal in accordance with law. The parties will bear their respective costs in this appeal.

N.V.K. Appeal allowed