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Judgment
Maclean, C.J.—This case comes before us as a Letters Patent Appeal, by reason of a divergence of opinion between Mr. Justice Macpherson and Mr. Justice Ameer Ali. I will first deal shortly with the facts of the case.
There can be no doubt that the Plaintiff instructed Defendant No. 2 to purchase the property for him, that the Plaintiff found the purchase money for the property, which was sold under the revenue sale on the 23rd September 1891, that he paid the purchase-money on or before the 20th October in that year, that the sale certificate was granted on the nth August 1892 to Defendant No. 2, and that the latter Defendant in selling to Defendant No. 1 has committed a fraud upon the Plaintiff. Formal possession was given to the Defendant No. 2 on the 15th September 1892, and on the 25th November 1892, he sold the property to Defendant No. 1, who, on the 21st March 1893, was registered in the Collect orate as the proprietor. The Plaintiffs case is that the sale by the Defendant No. 2 to the Defendant No. 1 was a fraudulent and collusive one, that the Defendant No. 1 knew that the purchase-money had been found by the Plaintiff, and that the property in equity belonged to him, and on the 16th May 1894 he brings this suit seeking a declaration of his title and to be put into possession of the property in question.
The judgment of the Subordinate Judge, as that of Mr. Justice Ameer Ali, is based upon the view that Defendant No. 1 knew, when he purchased, that Defendant No. 2 was not the real owner of the property, but that the Plaintiff was, in other words, that Defendant No. 1 took the property from Defendant No. 2, with notice of the Plaintiff''s title. And it must be observed that Mr. Justice Macpherson is not prepared to say that Defendant No. 1 can successfully contend that he is a bond fide purchaser for value without notice.
I am not disposed to differ from the conclusions of these three judges upon the question of whether Defendant No. 1, when he purchased, had notice of the Plaintiff''s title, which as between him and Defendant No. 2 was clear.
Though there is other evidence in the case which would justify an inference that Defendant No. 1 had notice, the only direct evidence on the point is that of G. P. Pogose. Defendant No. T denies his statement. The question is, which witness is to be believed. The Subordinate Judge saw them both: he has believed Pogose, and disbelieved Defendant No. 1.
It is difficult for us to say he is wrong. I think then, on the evidence, it must be taken that, when he purchased, Defendant No. 1 had notice of the Plaintiffs title.
If this be so, the question whether he paid anything for the property becomes of small importance, for if he knew, at the time of his purchase, that, in equity, the property belonged to the Plaintiff, in other words, if he had notice of the latter''s title, he became mala fide purchaser.
On the evidence I should be inclined to hold that the Rs. 1,600 was paid; but in the view I take as to notice, the question, as I have said before, becomes of little importance.
It is, however, contended for the Appellant that, even if both the above questions be decided in the Plaintiff''s favour, the suit is not maintainable having regard to sec. 36 of Act XI of 1859.
In dealing with this question, one must bear distinctly in mind that this is a penal section, penal in that it deprives a person of a right to bring a suit, which, but for the section, he would undoubtedly be entitled to do. There can be no doubt but that, save for the section, this suit would lie, and that, upon the facts found, the Plaintiff would be entitled to succeed. Does the section deprive him of that right ? I think not. The section says:--"Any suit brought to oust the certified purchaser, as aforesaid, on the ground that the purchase was made on behalf of another person," This is not a suit " to oust the certified purchaser," it is a suit to oust somebody else. It is true (that) somebody else claims, or affects to claim, through the certified purchaser, but he is not the certified purchaser, and therefore strictly not within the language of the section.
I am not satisfied that the suit is brought " on the ground that the purchase was made on behalf of another person : "the true ground upon which the suit is based is the fraud of Defendant No. 2 of which Defendant No, 1 had notice. It would have been difficult to say that the suit was barred by the section, if it had asked for a declaration of title, for an account of mesne profits, and for a conveyance of the estate. The section points to a particular suit against a particular person on a particular ground, and I do not think it prevents the Court, in a case like the present, from enquiring into the merits. In a case where every principle of equity and good conscience demands that the Plaintiff should be entitled to bring a suit and, as here, on the facts, to succeed, I do not think the Court, construing the section ought to go beyond the strict letter of the language used or to put a construction upon that language which would have the effect of materially extending the operation of the section.
In a section of this class it is in my judgments, safer to adhere to the words actually used than to import into the section words which are not there. The section ought to be construed strictly and literally. Doubtless this construction may lead to anomalies: e.g., that the certified purchaser cannot be sued though his heir may: but the existence or possibility of such anomalies ought not, I conceive, to warrant us in reading the words otherwise than literally.
It is urged for the Respondents that, under sec. 28 of the Act, the property becomes vested in the certified purchaser. I do not say whether this is or is not so: but, assuming it to be so, that fact cannot affect the right of the Plaintiff to bring his suit, unless sec. 36 bars him of that right.
To read the section in the manner for which the Respondents contend would have the effect of making the section an instrument for cloaking and protecting fraud, a result we should be very chary in attributing to the Legislature. There is doubtless much force in Mr. Justice Macpherson''s observations that it is only in the case of fraud by the agent or benamidar, that the question is likely to arise: but I do not think this construction is sufficient to justify the Court in placing a construction on the section which would have the effect of materially extending its scope.
There is no authority directly in point. The cases of Mussumat Buhuns Kowur v. Lalla Beharee Lall 14 M. I. A. 496, Lokhee Narain Roy Chowdhury v. Kalypuddo Bando-paydhay L. R. 2 I. A. 154 were cases converse to the present. They, however, indicate clearly that a section of this nature must be construed strictly and throw a light upon the principle applicable to the present case.
Upon these grounds I am of opinion that sec. 36 is no bar to the suit, and that the Plaintiff is entitled to succeed. The appeal is dismissed with costs.
Ghose, J.
I agree with the learned Chief Justice in the conclusion that he has arrived at.
There can, I think, be no doubt as to the true facts of this case. The Plaintiff instructed the Defendant No. 2, Golak Chunder Bhattacharjee, to purchase the property in suit at a revenue sale on his behalf; the Defendant, instead of making the purchase in the name of the Plaintiff, did it in his own name, but with the money of the Plaintiff; he afterwards promised to execute a deed of release in favour of the Plaintiff so soon as the certificate of sale was obtained; he did obtain the certificate of sale, as also formal possession through the Collect orate, but did not execute a deed of release, and fraudulently executed a deed of sale in favour of the Defendant No. 1, who had notice of the title of the Plaintiff; the Defendant No. 1 succeeded in obtaining real possession of the property; and the Plaintiff now seeks to recover possession.
The deed of sale in favour of the Defendant No. 1 is staled to have been for a consideration of Rs. 3,000. This amount is said to have been composed of three sums, Rs. 1,000, Rs. 400 and Rs. 1,600; this last mentioned sum only being alleged to have been paid on the date of the sale, and the other two sums on antecedent dates. I am not prepared to believe that (the) these two sums of money were received by the Defendant No. 2, at any rate, as part of the consideration for the conveyance in question; but there is evidence which may be accepted that the amount of Rs. 1,600 was paid by the Defendant No. 1 to the Defendant No. 2. The document executed by the Defendant No. 2 would, therefore, operate as a conveyance of the property; but the facts disclosed in the case clearly indicate to my mind that this transaction was not, strictly speaking, a bona fide transaction. The Defendant No. 1 had knowledge of the Plaintiff''s title: the kobala was got up in a great hurry, the Defendant No. 1 apparently making no enquiry as to the true value of the property, and the Defendant No. 2 immediately afterwards left Mymensingh, and has not been so far as the record before us is concerned, since heard of.
In these circumstances there can be no doubt that in equity the Plaintiff is entitled to the relief he has asked for.
But it is said that sec. 36 of the Revenue Sale Law (Act XI of 1859) is a bar to this suit. That section provides :
Any suit brought to oust the certified purchaser as aforesaid on the ground that the purchase was made on behalf of another person not the certified purchaser, or on behalf partly of himself and partly of another person, though by agreement the name of the certified purchaser was used shall be dismissed with costs.
The section evidently contemplates of cases, where, before the sale, there is an agreement or understanding between a person and the certified purchaser, that the purchase should be made in the name of the latter, but on behalf of that person.
Now the facts alleged in the plaint in this case are (and, for the purpose of the question before us we must confine ourselves chiefly to the plaint), that the Plaintiff instructed the Defendant No. 2, who had been employed by him on previous occasion as agent, to purchase the property in question for and on his behalf; that the Defendant No. 2 promised to carry out this instruction, but he purchased the property in his own name "benami for the Plaintiff;" that this purchase in the Defendant''s own name was fraudulent; that he afterwards wrote to the Plaintiff a letter acknowledging the receipt of the purchase-money, which the Plaintiff had sent to him and promised to execute and deliver a deed of release, so soon as a certificate of sale was obtained; that subsequently the Defendant at the expense and for and on behalf of the Plaintiff took possession of the property through the Collect orate : that the Plaintiff thereupon obtained possession, and owned and held the property; but that subsequently the Defendant No. 1, who was fully aware of the purchase at the revenue sale being with the Plaintiffs money, in collusion and concert with the Defendant No. 2, concocted a fraudulent conveyance from the Defendant No. 2 in his favour, and dispossessed the Plaintiff. According to the plaint, and the evidence on oath of the Plaintiff, there was no agreement or understanding between the Plaintiff and the Defendant No. 2 that the purchase should be in the name of the latter, but "on behalf of " the Plaintiff. On the contrary, the instruction to the Defendant No. 2 was, as alleged, that the purchase should be made for the Plaintiff, that is to say, in his name. No doubt, it does appear that when the Plaintiff Vas informed of what had taken place, he acquiesced in it; but evidently he had no option left in this matter. It is, however, distinctly alleged that the act of the Defendant No. 2 in making the purchase in his own name against the instruction he had received, was a fraud upon the Plaintiff, and so also the transaction in favour of the Defendant No. 1. The suit. I think, may well be regarded as based upon the ground of fraud; and in this view of the matter the case falls outside the provisions of sec. 36 of the Revenue Sale Law.
In the second place, it will be observed that the suit is not to oust "the certified purchaser," but a person who obtained a conveyance from the certified purchaser under circumstances which indicate that it was not a bona fide transaction. It has been held by the Privy Council in the two cases referred to by the learned Chief Justice, with reference to a similar provision in the old CPC that such a provision, which is penal in character, must be construed strictly and literally.
And in this connection I may also refer to the case of Toondun Singh v. Pokenarain Singh L. R. 1 I. A. 342, where a purchase was made at a revenue sale under Act I of 1845 by the managing member of a joint Hindu family in his own name but "on behalf" of the joint family; and in a suit by a member of the family for enforcement of his rights under the purchase against the managing member, it was held by the Judicial Committee that the suit was not affected by sec. 21 of the Act I of 1845 (provisions whereof were similar to those of sec. 36 of the present law); and "that notwithstanding anything contained therein, the members of such joint family may sue to enforce rights acquired by them under such a purchase as against the managing member, though he is the sole certified purchaser." This case is material as shewing how strictly the penal provisions as contained in sec. 36 should be construed.
Bearing in mind the views expressed by the Privy Council in these cases, I do not see why, when the equities are entirely in favour of the Plaintiff, we should construe sec, 36, otherwise than strictly and literally, so as to enlarge its scope, and thus to help the Defendant in committing a fraud upon the Plaintiff.
As regards the anomalies which have been pointed out before us, as likely to arise from this view of the matter, I do not think I am called upon to express any opinion in this case. I confine myself to the facts of the particular case now before us.
Upon these considerations I am of opinion that the Plaintiff is entitled to judgment.
Trevelyan, J.
In my opinion the construction which has been placed by Mr. Justice Macpherson on sec. 36 of Act XI of 1859 is the correct one, and that section applies just as much to a suit to oust the assignee of a certified purchaser as it does to a suit to oust that purchaser. I quite agree that, having regard to the nature of that section, the principles which apply to the construction of penal statutes are applicable, but it is necessary that we should see what was the intention of the Legislature, and give effect, to such intention. We must not construe the section in such a way as to defeat the intention of the Legislature, or "frustrate the object of the Act by putting a forced and strained meaning upon its language.
There can be no question, but that this case is within the mischief which this section was designed to meet. As I take it, the Legislature in enacting sec. 36 intended to give to a certified purchaser in possession a statutory title against the person, if any, on whose behalf he had purchased. If this be so, I cannot see why this protection should not devolve upon his heir or assignee, who would take a title in continuation of that of the certified purchaser. To hold otherwise would be to attribute to the Legislature an intention of enacting that when the evidence becomes weaker to disprove benami, on the person best capable of disproving it dying or ceasing to have any interest in the property, the person claiming to be the beneficial owner is to have increased facilities for proving that the purchase was made benami. I cannot hold that such was the intention of the Legislature and that death or assignment destroys the statutory title. I would assume that the Legislature accepted the ordinary rule that an assignee stands in the place of his assignor and acquires by the assignment the complete title of the assignor. Mr. Justice Macpherson has given his reasons at some length and I need not repeat them. I would allow the appeal.