Shiva Shankar Sah and Another vs Manbharan Rai and Others

Agarwala, J.—This appeal by the defendants arises out of the following facts. Lakshman Rai obtained a money decree against Hira Sah. In execution of thafc decree he put up to sale five items of property which belonged jointly to the judgment-debtor and the latter''s brother. Two items, namely Nos. 1276 and 3565 were purchased by Manbharan Rai and the remaining three items, Nos. 1422, 1425 and 3562, were purchased by Lakshman Rai. Each of the auction-purchasers obtained possession of the items purchased by him respectively, jointly with the brother of the judgment-debtor.

Subsequently a suit was instituted for partition as against the brother of the judgment-debtor, purporting to be a suit by Manbharan Rai and Lakshman Rai, the two auction-purchasers. Defendant 1 pleaded inter alia that Lakshman Rai was not in fact a party to the suit and that Manbharan Rai had no rights in those items of property which had been purchased by Lakstimsman Rai. Lakshman Rai also filed a petition: supporting this plea of the defendant. He alleged that his name had been fraudulently used as a plaintiff in the suit and he had nothing to do with it. The plaintiff Manbharan Rai, on the other hand, affirmed that there had been an agreement between himself and Lakshman Rai that any of the properties to be put up to sale in execution of the money decree which should be purchased by either of them, should be held on behalf of both of them by the purchaser. It is on the strength of that agreement that he claims partition. The claim is met by the bar of Section 66, Civil P.C.

As was pointed out by a Division Bench of the Allahabad High Court, in a case where the facts were indistinguishable from the facts of this case Bishen Dayal Vs. Kesho Prasad and Another that Section is a bar to a suit where a partnership or agreement is entered into between two persons to purchase property at an auction execution sale with) funds contributed by both in the name of one person only.

The plaintiff-respondent relies on the decision of a single Judge of this Court Bikram Ahir and Others Vs. Lala Rajpati Lal and Others, in which it was held that Section 66 does not take away the jurisdiction of the Civil Court to deal with a cause of action based on a contract between the parties and on the equities arising out of that contract. If that decision is in fact contrary to the decision of the Division Bench of the Allahabad High Court already referred to, I respectfully disagree with it. To me it seems that the Section operates as a bar to a claim by a person who alleges that the actual purchase was either on behalf of himself exclusively or of himself jointly with the certified purchaser, whether the purchase is alleged to be in execution of an express agreement or otherwise, for ft is clear that no benami purchase can ever be otherwise than as the Result of an agreement of some sort between the principal and the benamidar; nor does the fact that the principal claims only to have provided a part of the purchase money and to be entitled to only a share in the property purchased make any difference in principle. In my view therefore the Section is a bar to the present suit. But it is contended by the learned advocate for the'' plaintiff that this is a suit not against Lakshman Rai, the certified purchaser of three of the items of the property, but defendant 1. With "regard to the three items of property purchased by Lakghman, the plaintiff admittedly as no title at all'' unless he can establish that Lakshman purchased on his behalf, so that in that event he would not be entitled to succeed in this suit for partition against defendant 1; and if he does rely on that agreement as I have already indicated, Section 66 bars the suit.

The learned advocate sought to rely on the finding of the Appellate Court that Lakshman Rai was in fact a party to the suit. That finding was based on a statement in an affidavit filed by Manbharan Rai, the plaintiff, after the hearing of the suit had been completed, in which he alleged that Lakshman Rai bad filed an affidavit of service at and earlier stage of the proceedings. Manbharan Rai''s affidavit was for the purpose of inducing the Court to call for this affidavit of service. The application was rejected, and therefore the defendants had no occasion to controvert the allegations made in it. The Court below was not entitled in a suit to take evidence by affidavit. If it was necessary to secure the plaintiff''s evidence with regard to any point, the other side was entitled to cross-examine.

The result of this appeal therefore is that with regard to items 1422, 1425 and 3562, the decree of the Courts below is set aside and the plaintiff''s suit is dismissed. With regard to the other two items, namely 1276 and 3565, the plaintiff claims in these a one-fourth share which he seeks to partition and to that extent his suit Succeeds and the appeal with regard to those two items is dismissed. The parties will bear their own costs throughout.

Harries C.J.

I entirely agree.