BiSar Singh and Others vs Deobaran Singh and Others

Manohar Lall, J.—This appeal was remanded by us for re-hearing and for submission of the finding to this Court on the question whether defendant 12 was a benamidar for the plaintiffs. The facts have been fully stated in our order of remand dated 13th August 1947.

It is sufficient to state once more that plaintiffs 1 to 5 claimed the right to pre-empt the land in dispute upon the ground that they were the co-sharers of tauzi No. 28, mahal Shaikhopur, by reason of certain sale deeds which admittedly stand in the name of defendant 12 whose name is also found in register D of the collectorate. The plaintiffs'' case was that the widow was their benamidar and that on hearing of the sale to the defendants-appellants, they at once performed the ceremonies of Talab-i-mowasibat and Talab-i-ishhad as required by the Muhammadan law of pre-emption which is applicable to Patna from where this case comes.

The Courts below had decided that defendant X2 was the benamidar of the plaintiffs and that the two talabs had been performed in accordance with the requirements of the Muhammadan law by the plaintiffs.

On the last occasion when we heard the appeal, we were not satisfied that the findings on these two questions were in accordance with law as the judgment appeared to be unsatisfactory. Accordingly the appeal was remanded for re-hearing after giving proper consideration to all the evidence on the record in the light of the observations we had made in the remand order. In accordance with that order, the learned Sub-ordinate Judge has now sent up clear findings of fact holding (1) that defendant 12 was the benamidar of the plaintiffs, and (2) that the two talabs had been performed in accordance with the rules of the Muhammadan law. These findings cannot be upset in second appeal.

Mr. L.K. Jha, however, argues that accepting these findings as conclusive, the plaintiffs'' suit must still fail because the talabs had not been performed by the benamidar but by the plain-tiffs. In support of this extraordinary contention he relies upon the case of Beni Shankar Shelhat v. Mahpal Bahadur Singh 9 All. 480. In that case, however, the learned Judges found as a fact that Bisheshar Tiwari was not the farzidar of the defendant vendees and, therefore, the observations which have been relied upon by Mr. Jha were merely obiter.

The next case cited by Mr. Jha in support of his argument is the Oudh case of AIR 1927 509 (Oudh) . The head-note states that the suit to enforce the right of pre-emption against a person who was found to be benamidar only was decreed as the learned Judges thought that the Court should only look as to who is the transferee according to the proper construction of the deed. In that case the names of the vendees were also found entered in the revenue registers, Mr. L.K. Jha relying upon this case argues that it follows from the reasoning adopted by the learned Judges that it is the benamidar alone who should perform the two ceremonies of the talabs. The Oudh case was not followed in the Division Bench decision of the Allahabad High Court in Sankatha Prasad Vs. Mt. Rukhmani and Others, where the learned Judges pointed out that a suit for pre-emption will not lie against a vendee who is a mere benamidar for a person who had a prior right to pre-emption and observed that it was the duty of the Court in such a suit to discover who was the real purchaser, that is, who took the proprietary and beneficial interest under the sale. It is not necessary to consider the correctness of these two decisions because the facts in the present case are converse to those which arose in these two cases. In my opinion, it is impossible to hold that a benamidar should be forced to perform the ceremonies of the talabs; he may be unwilling to do so as he has no interest in the land. In many cases he does not even know that any transaction has taken place in his name. It seems to me that perhaps some confusion has arisen from misunderstanding the true import of the judgment of their Lordships in Gur Narayan v. Sheo Lal Singh A.I.R.1918 P.C. 140, where it was decided that a benamidar can sue in his own name to recover immovable property vested in him as benamidar. Their Lordships observed at p. 9:

...the benamidar 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 is concerned he is a mere trustee for him. Their Lordships find it difficult to understand why, in such circumstances, an action cannot be maintained in the name of the benamidar in respect of the property although the beneficial owner is no party to it. The bulk of judicial opinion in India is in favour of the proposition that in a proceeding by or against the benamidar, the person beneficially entitled is fully affected by the rules of res judicata. With this view their Lordships concur. It is open to the latter to apply to be joined in the action; but whether he is made a party or not, a proceeding by or against his representative in its ultimate result is fully binding on him. In case of a contest between an alleged benamidar and an alleged real owner, other considerations arise with which their Lordship3 are not concerned in the present case.

In the present case also, the suit for pre emption is by the real owner and he has taken the precaution to join the benamidar as a party defendant and there is no contest between them. The question to be decided in the present case is somewhat different, namely, the effect of the non-performance of the talab ceremonies by the benamidar. For the reasons given above, I am of opinion that the plaintiff had a right to perform the ceremonies of the talabs the plaintiff is the real owner. The appellants are not prejudiced in the least because the performance of the ceremonies has given adequate notice to them that a right of preemption is being claimed for these lands. The ceremony of jumping, which is an important ceremony, has to be performed on the land itself so that direct notice reaches the person against whom pre-emption is sought. The Court, in my opinion, in every such case where the sale deed stands in th6 name of the benamidar is not concerned with investigating as to who is the true owner if the ceremonies are performed by the person in whose name the sale-deed stands. But if the ceremonies are performed by a person who claims to be the real owner and the sale deed stands in the name of another, then the Court is bound to investigate whether the person who has performed the ceremonies is the real owner. If the alleged benamidar on investigation is found to be the real owner, and the talabs are not performed by him, the defendant will obviously succeed. On the other hand if the talabs have been performed by a person whom the Court finds on the evidence to be the real owner, then the performance of the ceremonies by him satisfies the requirements of the law, and the defendant cannot complain and insist on the performance of the ceremonies by the benamidar. To hold otherwise would lead to an impossible situation in many cases which can be easily imagined.

The result is that the appeal of the defendants i3 not entitled to succeed and must be dismissed with costs.

Ramaswami J.

I agree.