Kandathil Padinhare Veetil Karnavan and Manager Sankunni Nair and Puthiadath Karnavan and Manager Itti Raman alias Kunhunni Nambiar vs Kizhanalloor Manakkal Narayanan Nambudri's son Narayanan Nambudri and Another

Best, J.—These two appeals are against the same decree--the appellant in No. 779 being the 2nd defendant, and appellant in No. 943 the

1st defendant.

The suit was brought by the plaintiff for possession of two items of land alleged to be the jenm property of plaintiff''s house and demised by

plaintiff''s ancestor on kanom for Rupees 412-9-2 to a former karnavan of defendants 2 to 15 in Kollam 1040 (1864-5). Plaintiff''s case is that, on

the land being sold (in 1874) in execution of decree in O. Section 232 of 1868 obtained against plaintiff''s father, it was purchased by 1st

defendant''s late karnavan Rainan Nambiar benami for plaintiff''s mana (house), the said Raman Nambiar having been appointed by plaintiff''s

mother, manager of plaintiff''s mana--plaintiff being an infant aged two years in 104-8 (1872-3) when his father died ; that Ramau Nambiar

continued as such manager till 1054 (1878-9) when 1st defendant was appointed as his successor and is still the kariastan; that in 1064 (1888-9)

when the kanom was renewed to 2nd defendant at the advice of the 1st defendant, the plaint items were fraudulently excluded. Hence this suit.

The 1st defendant denied that either his karnavan or himself ever managed on behalf of plaintiff''s mana, and pleaded that the purchase in 1874

was made by his karnavan with his own money and on account of his Own tarwad and not benami for plaintiff ; that the suit was opposed to

Sections 80 and 317 of the CPC and also bad for misjoinder of causes of action ; further, that it was time-barred and that plaintiff attained his

majority more than three years before the institution of the suit.

Defendants 2 to 5 supported 1st defendant, and the other defendants allowed the suit to proceed ex parte as far as they were concerned.

The two Lower Courts have concurred in finding that at the date of the purchase of the plaint property, 1st defendant''s karnavan was managing

on behalf of plaintiff''s mana; that he did in fact purchase ,the property for the plaintiff''s illom--though the money paid was 1st defendant''s

karnavan''s own ; that there was no adverse possession till January 1889 when plaintiff granted the renewal kanom and 1st defendant executed the

kanom deed XXIII, shortly after, for the plaint lands ; also, that the suit is brought within three years of plaintiff''s attainment of majority, and that

the cause of action did not arise till January 1889. It has further been found that the suit is not bad either for misjoinder of causes of action or u/s

30 of the Code of Civil Procedure.

The principal contention before this court is that the suit is bad as being opposed to Section 317 of the Code of Civil Procedure, which declares

that ""no suit shall be maintained against the certified purchaser (at a court sale) on the ground that the purchase was made on behalf of any other

person, or on behalf of some one through whom such other person claims,

The District Munsif held the above section to be no bar to the suit because ""the auction was held and the sale certificate granted before the new

Act (X of 1877) came into force and the provisions of Section 317 apply to a certified purchaser under the Act."" But as well observed by

Mahmood, J., in Aldwell v. Ilahi Bakhsh I. L. R 5 A 478--Section 317 of the present CPC has not altered in principle the rule of law contained in

Section 260 of the old Code (VIII of 1859). The Subordinate Judge''s reason for holding this suit not to fall within the prohibition contained in

Section 317 is because it was held in Sohun Lall v. Lala Gya Pershad 6 N. W. P. H. C. B. 265 that Section 260 of Act VIII of 1859 did not

preclude a suit by a decree-holder against the certified purchaser for the purpose of establishing his right to bring the property to sale in execution

as the property of the judgment-debtor, and ""if so"" (says the subordinate Judge) ""I do not see why the judgment-debtor himself cannot bring a suit

for a declaration that the property was purchased by his agent benami for himself."" I imagine, however, that it is this latter case that the legislature

had expressly in view in enacting Section 317. As observed by the Chief Justice and Handlty, J., in Rama Kurup v. Sridevi which is reported in I.

L. R 16 M 290 ""the object of the section is to put a stop to benami purchases at execution sales, and this object can only be carried out by

enforcing it in all cases without regard to consequences."" As further observed in the Same judgment, ""It is not a sufficient reason for declining to

carry out the express terms of the section, that to do so would be to allow a fraud to be perpetrated. The person in whose name a purchase has

been made for the benefit, and with the money, of another, of course commits a fraud in claiming the property as his own. Nevertheless, the law

says that a suit shall not be maintained against him on the ground that the purchase was benami and thus provides that his fraud shall prevail."" As

was also remarked in Ramakrishnappa v. Adinarayana I. L. R 8 M 511--at p. 515--""the effect of Section 317 can only be taken to be to enable

certified purchasers and those claiming under them to avoid any arrangement made with them in regard to the purchase in the nature of a trust.

The present, however, is not a case of benamidar pure and simple. It is found that Raman Nambiar was, at the time of the purchase, manager on

behalf of plaintiff who was an infant, and that other would-be purchasers of the property abstained from bidding because they were given to

understand that the purchase by Raman Nambiar was being made by Mm as such manager and on behalf of the minor. Consequently, property

worth Rupees 2,000 was allowed to be knocked down for Eupees 230. Moreover, Raman Nambiar never set up any claim to the property as his

own. Such being the case, I do not think the 1st defendant can be allowed to succeed in his attempt to secure the property for himself under colour

of Section 317 of the Code of Civil Procedure.

But 1st defendant is entitled to interest on the Rupees 230 decreed to him from 25th July 1874, the date of sale (see Exh. XX). The lower

courts'' decrees will, therefore, be modified by directing plaintiff to pay to 1st defendant interest at 6 per cent, per annum from 25th July 1874 to

date of payment on the Rupees 230 decreed to 1st defendant. Plaintiff and 1st defendant will pay each other costs of the appeal proportionate to

the amount allowed and disallowed.

Second defendant''s appeal No. 779 is dismissed with costs.

Muthusami Aiyar, J.

I come to the same conclusion. The question for determination in these second appeals is whether upon the facts found, the decision of the

courts below is correct. The substantial parties to this suit are the son of the execution-debtor in Original Suit No. 232 of 1868 and the

representative of the certified purchaser at the court sale held in execution of the decree passed therein. It is provided by Section 317, Civil

Procedure Code, that no suit shall be maintained against the certified purchaser on the ground that the purchase was made on behalf of any other

person, or of some one through whom such other person claims. Although Act VIII of 1859 was in force when the sale took place in the present

case, Section 317 has not, as observed in Aldwell v. Ilahi Bakhsh I. L. R 5 A 481 altered in principle the rule of law contained in Section 260 of

Act VIII of 1859. The rule is, not that a benami purchase is void altogether, but that it shall not be available as a ground of action against a certified

purchaser. The Privy Council held in Lokhee Narain Roy Ghowdhry v. Kalypuddo Bandopadhya and Shamapuddo Bandopadhya L. R. 2 I. A

154 that when the certified purchaser is the plaintiff, the real owner, if in possession, and if he honestly obtained that possession, may rely on the

benami purchase as a ground of defence. It was also pointed out by this court in Ramakrishnappa v. Adindrayana I. L. R 8 M. 515 that a benami

purchase is not invalid even as a ground of claim, as against defendants who are neither certified purchasers nor claim under them. Another

limitation of the � rule is that indicated by the second paragraph of Section 317, viz., that the protection vouchsafed to a certified purchaser does

not extend to cases of fraud. The suit from which these second appeals arise was brought against the anandravan of the certified purchaser, and the

ground on which the courts below rest their decision is that the plaintiff is the beneficial owner and that the certified purchaser under whom the 1st

defendant claims is benami purchaser or his trustee. This ground of decision is inconsistent with the effect of Section 317 which is described in I. L.

R 8 M 515 as enabling the person claiming under the certified purchaser to avoid any arrangement made regarding the benami purchase. If the

facts found disclosed a benami purchase and nothing more, the appeals must prevail. But it is also found that Raman Nambiar was, at the time of

the court sale, managing the affairs of respondent''s illom as its agent and that he bought the land as such, though he advanced the purchase money

on the understanding that he was to be repaid. It is also found as a fact that the market value of the land in dispute was Rupees 2,000, whilst it was

bought at the court sale for Rupees 230. The District Munsif observes that there is strong evidencp to show that numerous persons, who went to

bid at the court sale, were dissuaded from doing so by Raman Nambiar, who represented to them that he was buying the land for the use of

Respondent''s illom. It is also found that Raman Nambiar continued to be the agent of the illom till his death, and that after him, the 1st defendant

was agent until the date of the controversy which resulted in this litigation. Until 1889, the kanom originally granted by the illom was outstanding

and it does not appear that Raman Nambiar ever asserted his title to the land in dispute or that the 1st defendant asserted the right of his tarwad to

it prior to 1889. Under these circumstances, I consider that the decision of the courts below can be supported on the ground that Raman Nambiar

bought the land as agent of plaintiff''s illom subject to a charge in his favor for the amount advanced by him, and that until 1889, the land was

treated as the property of the illom ; otherwise, an agent would be enabled to make a profit out of his principal''s property, which he intended to

deal with as agent and continued to do so till 1889, and thereby to turn the understanding on which his name was inserted in the certificate and the

land was since held, into a means of perpetrating fraud on his principal. I also think that interest should be awarded on Rupees 280 in the decree

proposed.

I concur with my learned colleague on the other questions raised in second appeal and in the decree proposed by him.