Sundaraperumal vs Badrinarayanan alias Badrachaiam and others

Natesan, J.—The first defendant in a suit for partition is the appellant in this Court. The suit was instituted by the father and defendants 1 to 5 are his sons. The dispute relates to only one item of property, namely, Item 2. This item of property was purchased in Court auction in execution of the decree in O.S. No. 334 of 1936 on the file of the District Munsif Court, Salem. Ex. B-1 is the sale certificate. The finding of the Courts, below is that the fund for this purchase was provided by the plaintiff. In fact the learned Subordinate Judge observes that he has no doubt at all that the plaintiff alone as manager of the joint family advanced money for the purchase of the second item in court-auction. To the same effect is the finding of the trial Court. There is also ample and substantial evidence on record to show that ever since its purchase the property has been held and enjoyed as the property of the joint family of which the plaintiff was the manager and defendants 1 to 5, the junior members. There is evidence that other items of joint family properties were mortgaged to discharge and pay off to a certain extent the mortgage over this second item which was subsisting when the court-auction purchase was made. In the face of this evidence Mr. D. Ramaswami Aiyangar, Learned Counsel for the appellant, finds it difficult to dislodge the finding of the Courts below that the purchase was out of joint family funds, or, at any rate, that the property has been treated as the property of the joint family. However, Learned Counsel contends that on the very allegations in the plaint, the suit is barred under S. 66, C.P.C. Learned Counsel draws my attention to the pleading in the plaint, where it is stated that the plaintiff purchased for a sum of Rs. 905, from out of his savings, Item No. 2 in the plaint for the benefit of the joint Hindu family in the name of the first defendant in a Court sale dated 4th September, 1941, in R.E.P. No. 789 of 1939 in O.S. No. 334 of 1936, Salem District Munsif Court, subject to the liability to discharge the balance of principal of Rs. 2,000 due under the mortgage. Learned Counsel draws my attention to the next sentence in the plaint where it is stated "Though the property was purchased in the name of the first defendant he had no right to Item 2 herein." It is contended that these allegations come directly under the prohibition of S. 66, C.P.C. S. 66(1) runs thus:

No suit shall be maintained against any person claiming title under a purchase certified by the Court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims.

But it must be noticed that the plaintiff in this case does not contend that the purchase was made on his own behalf. The purchase is for the family of which the purchaser is a member. So strictly interpreted according to the letter, S. 66, C.P.C., has no application. The Learned Counsel would however point out that it is not asserted in the plaint that the plaintiff had other joint family funds and the purchase was made with these joint family funds. It is pointed out that there is no reference to any joint family nucleus which has contributed for the purchase of Item 2, so that at the outset itself the source of purchase money was from joint family funds. It is also pointed out that the plaintiff has stated that the first defendant has no interest in the property. In my view, this is not a proper reading of the plaint, no doubt loose language has been used but the gist of the plaint is that the purchase was for the benefit of the joint family in the name of a member of the family. At any rate, the subsequent paragraphs in the plaint show that this property has been treated as property of the joint family by all the members of the family and thus brought into the hotchpot and made joint family property available for division at a partition of the joint family properties.

Of course, Learned Counsel does not contend that if the purchase is for the joint family from joint family funds, it would be hit by S. 66, C.P.C. If authority is required that S. 66 of C.P. Code would not hit such a purchase, there is the decision of the Privy Council in Bodh Singh Doodhooria v. Gunesh Chandra Sen 12 Beng. L.R. 317 , 329, their Lordships of the Judicial Committee observed:

They (old S. 260 of the Code of 1859) were designed to check the practice of making what are known as benami purchases at execution sales i.e., transaction in which A secretly purchases on his own account in the name of B. Their Lordships think that they cannot be taken to affect the rights of members of a joint Hindu family, who by the operation of law, and not by virtue of any private agreement, or understanding, are entitled to treat as part of their common property an acquisition, however made, by a member of the family in his sole name, if made by the use of the family funds.

Learned Counsel would no doubt strenuously contend that on the plaint allegations the purchase in this case has not been out of family funds, as the plaintiff has not stated so in the plaint. But Learned Counsel for the respondents point out that even prior to the acquisition of this property, the joint family had other properties. The evidence is that the plaintiff was carrying on the profession of weaver from his early childhood and that all the members were living in Item 1 of the suit properties which, according to the plaintiff was property of the joint family. The learned Subordinate Judge also gives a finding that the property has been treated as the property of the joint family. He finds that in the circumstances he prefers the evidence of the plaintiff''s witnesses to that of the defendants'' witnesses, and accepts the case of the plaintiff that he had been in possession and enjoyment of the said Item 2 all along since the date of Ex. B-1 on behalf of the joint family. It may be pointed out that wherever in the plaint the plaintiff asserts title and denies the title in the first defendant, it is a denial of the first defendant''s title in his individual capacity. He never denied the title of the first defendant as a member of the joint family. In the circumstances, I find no case for holding that the claim of the plaintiff in regard to Item 2 is barred by the provisions of S. 66, C.P.C. In the result, the second appeal fails and is dismissed. As the rather loose language in the plaint has given room for some arguments in this second appeal, the parties will bear their own costs in this Court. No leave.