Sowcar Kamurudeen Sahib and Others vs Noor Mahamed Usman Sahib and Others

Sadasiva Aiyar, J.—The plaintiffs are the appellants. They are the heirs of one Abdul Gunni Sahib, deceased. Their case is that Abdul Gunni

Sahib in order to defraud his creditors purchased the plaint properties in the name of Noor Abdul Kadir Sahib in a Court auction sale held in

execution of the decree passed against Abdul Ganni Sahib and that in pursuance of the same scheme, he (Abdul Ganni put Abdul Kadir Sahib in

possession of the properties, but, on the understanding that Abdul Kadir should be trustee of the property for Abdul Ganni Sahib and make over

all the profits to Abdul Ganni till such time as Abdul Ganni could safely take back actual possession. The Court auction sale took place in

November 1898 and it was confirmed in January 1899 though the sale certificate seems to have been issued only in June 1899. The possession of

Abdul Kadir Sahib began in the beginning of 1899 evidently as soon as the sale was confirmed in January 1899.

The Lower Courts dismissed the suit of the plaintiffs on the strength of the provisions of Section 66 of the Civil Procedure Code. They held that

the effect of that section was not affected by the allegation in the plaint that till October 1909 the benamidar (Abdul Kadir Sahib) and his heirs (the

defendants), had been regularly paying the profits of the properties to Abdul Ganni Sahib and his heirs, the plaintiffs, in pursuance of the

arrangement of January 1899.

It is argued in second appeal, so far as I have followed the arguments of the appellants'' learned vakil Mr. T.R. Ramachandra Iyer that as Abdul

Ganni put Abdul Kadir in possession of the properties in January 1899 and as Abdul Kadir Sahib took upon himself the duties of trustee in respect

of these properties for Abdul Ganni, Section 66 of the CPC cannot be an obstruction to the success of the plaintiffs'' suit which is brought by the

beneficiaries against the heirs of the trustee.

As regards the provisions of Section 66, CPC I see no reason to depart from the opinions I gave expression to in the case Kandasami v.

Nagalinga ILR (1912) M. 564. The verbal changes introduced in the old Section 317 by Clause (1) of the present Section 66 make it clear, to my

mind, that where the certified purchaser, or any other person "" claiming title under a purchase certified by the court is the defendant in a suit he is

entitled to plead that his purchase cannot be made out to be benami by the plaintiff of that suit owing to the interposition of the statutor37 bar

raised by this Section 66 and that the Court auction purchase should be treated by the Court as a fully operative conveyance by reason of the

purchaser''s occupying the advantageous position of the defendant in the suit even though it might have been a benami purchase. It follows that the

Court auction purchaser must be treated as the real purchaser for all purposes so long as the suit is brought against and not by him (or those

claiming under him) excepting in the cases provided for by Clause (2) of Section 66,

The present is not a case coming within any of the exceptions mentioned in the Clause (2) and hence, in my opinion, it should be taken that the

defendants are the persons owning the full legal and equitable titles in the plaint properties for the purpose of the decision of this suit brought against

them. In other words if Abdul Kadir should be treated as a real purchaser, then the title fully vested in Abdul Kadir in January 1899. By the change

introduced in the wording of this provision in the new Code persons claiming title under Abdul Kadir became also the real owners of the property

as they claim title under that same purchase by Abdul Kadir. Their title cannot be lost unless Abdul Kadir or themselves have created afterwards a

valid trust in favour of Abdul Ganni or his heirs. Under the Trusts Act, Section 5, "" No trust in relation to Immovable property is valid unless

declared by a non-testamentary instrument in writing signed by the author of the trust or of the trustee"". It is not alleged that Abdul Kadir or the

defendants have, by the registered non-testamentary instrument or by a will, created any such trust. As regards mere possession even taking it that

Abdul Ganni and his heirs were in possession from January 1899 till October 1909 by reason of receiving the profits as alleged in the plaint, the

plaintiffs could not have obtained any title by adverse possession as they were not in possession for the statutory period of twelve years before

their receipt of their profits ceased according to the plaintiffs'' own case.

As for the cases Monappa v. Surappa ILR (1888) M. 234. Mussamat Buhuns Kowar v. Lalla Buhoore Lall (1872) 14 M.I.A. 496. (1875)

L.R. 2 I.A. 154 (Privy Council) quoted on plaintiff''s side these decisions have been considered in the case of Bishen Dial v. Ghaziuddin ILR

(1901) A. 175 and the learned Judges, following the dictum of their Lordships of the Privy Council found in one of these very cases (14 M.I.A.

496) held that "" the mere permission to hold possession cannot alone give or transfer a title from the benamidar to the real owner : "" and they also

point out that the cases reliced. on were decided before the passing of the Transfer of Property Act of 1882. It seems to me clear that mere

conduct or mere permission to hold possession given after the Transfer of Property Act came to force cannot transfer title from one party to

another.

On these grounds I hold that the lower Courts were right in dismissing the plaintiffs'' suit and I would therefore dismiss the second appeal with

costs.

Tyabji, J.

This appeal arises out of a suit for establishing the plaintiffs'' right to the properties referred to in the plaint and for directing the defendants to

deliver the properties to the plaintiffs. The defence is that Section 66 of the CPC is a bar to the suit.

It is not denied that the defendant is "" a person claiming title under a purchase certified by the Court "" and I therefore see great difficulty in

reading Section 66, Sub-section 1 in such a manner as to prevent the bar in such a suit. The appellant relies however, in the first instance on the

arguments based on a dictum cited with approval by the Privy Council in Pether Perumal Chetty v. Muniandi Servai ILR (1908) C. 551 from

Mayne''s Hindu Law to the effect, that "" where a transaction is once made out to be a mere benami it is evident that the benamidar absolutely dis-

appears from the title. "" The argument is that the defendant was a benamidar and that therefore he is not a purchaser at all and the plaintiff must

succeed in the suit. But it seems to me that this is exactly the course of action against which Section 66 is directed. Section 66 is intended to

prevent it being set up in court that a purchase at auction sale was benami for the plaintiff, except in the three classes of cases mentioned in Sub-

section 2; first, a suit for declaration that the name in the certificate of sale was inserted fraudulently; secondly, a suit for a declaration that the name

was inserted in the certificate without the consent of the real purchaser; thirdly, a suit based on the right of the third person who does not himself

claim to be the real purchaser, but claims to be entitled to proceed against the property on the ground that though it is nominally sold to the certified

purchaser, yet it is liable to satisfy the claim of such third person against the real owner. Each of the three cases refer to a case where the plaintiff

has not been a party to any fraud, but wishes to get rid of the effect of an attempted fraud against himself by the certified purchaser with or without

the convenience of the real owner or real purchaser, as the case may be. It cannot be contended that the present suit comes under any three

classes of suits.

Reliance is then placed upon the cases Monnappa v. Surappa ILR (1888) M. 234 Sankunni Nair v. Narayanan Nambudhri ILR (1893) M.

282 Natesa v. Venkatramayyan ILR (1882) M. 135 and Minakshi Ammal v. Kalyanarama Royyar ILR (1897) M. 349 : 7 M.L.J. 213.

Monappa''s Case ILR (1888) M. 234 proceeds on a basis which it seems to me is no more applicable ''in the case of Immovable properties

ex-ceeding hundred rupees in value after the Transfer of Property Act has come into operation. For it is held there that although the purchase at the

auction sale passed title to the person in whose name the certificate was made out, yet subsequently there was some conduct on the part of the

purchaser which operated as a re-transfer to the claimant. The Transfer of Property Act now lays down in which ways alone a transfer of

Immovable property of such value can be made and it is not alleged that there is anything that can satisfy the requirements of the Act. The question,

therefore, remains, whether, at the time of the Court auction, any transfer was effected to the person who was certified as the purchaser, and on

that question Section 66, Sub-section 1 provides that the title of the certified purchaser cannot be attacked on the ground that the purchase was

made on behalf of the plaintiff.

The other case relied upon by the appellant Sankunni Nair V. Narayanan Nambudhri ILR (1893) M. 282 is also distinguishable. There the

Court held that the transaction was a benami transaction. The facts of that case did not fall within Section 317 of the Old Code corresponding to

Section 66 (1). There the property was purchased by one Raman Nambiar as manager on behalf of the plaintiff who was a minor; (the learned

Judges speak of him both as Manager and as agent). Raman Nambiar acknowledges himself as Manager or agent and acted as such. The first

defendant succeeded him as Manager or agent and he for the first time set up his own title. The suit was brought by the plaintiff on attaining

majority to have his own title declared. The case would now apparently fall under the first or second of the three classes of suits excepted in

Section 66 (2). That sub-section did not form part of the earlier code.

I need not refer in detail to the other two cases.

Finally it was argued that Section 66 itself recognised a distinction between the real purchaser and the purchaser certified as such in the sale

certificate. That fact does not favour the appellant. The section recognises the distinction and also specifies the cases in which the certified

purchaser may be ousted by the real owner or the real purchaser. The case before us is not one of those specified.

I agree, therefore, that the appeal should be dismissed with costs.