1. Plaintiff brought this suit to obtain possession of a house with mesne profits from defendant 2 who was in possession of the house at the date of the suit.
2. The house belonged to one Valibai who was the absolute owner of it. She died in September 1919, and defendant 1, her daughter, was her only heir. It seems that the house was kept in the possession of defendant 2 who was related to the deceased Valibai, as defendant 1 resided at Barhanpur.
3. Defendant 1 entered into a contract to sell the house to the plaintiff. The contract was made on 15th November 1923. A sale deed was passed in pursuance of the contract on 8th February 1924, and was registered according to law.
4. Defendant 1 admitted the sale to the plaintiff. Defendant 2 raised various contentions, set up an oral will made by Valibai in his favour subject to a condition of payment of Rs. 1,000 to defendant 1. He also set up two kararnamas in his favour, stated to have been passed by defendant 1, the last of which was alleged to have been executed on 9th December 1923. He also contended that plaintiff was a benamidar for one Vallabhdas and that the suit was not maintainable unless Vallabhadas was joined as a plaintiff. Defendant also claimed compensation for the improvements which he had made to the house in suit, alleging that both the plaintiff and Vallabhdas had notice of the improvements.
5. Defendant 2 failed on the contentions as to the oral will and the kararnamas, and the learned counsel for defendant 2 very properly raised no contentions on the points of fact but raised two points of law. The first point taken by him was that the plaintiff after all was a benamidar for Vallabhdas and could not sue. If one refers to Section 82 of the Trusts Act, there ought to be no objection to a suit instituted by a benamidar. The question whether and in what circumstances a benamidar is competent to maintain a suit in his own name, and without the beneficial owner being a party to the suit, has been discussed in a number of rulings by the various High Courts. In regard to the point there had been at one time considerable conflict of authority. The earlier rulings on the point will be found collected in Woodroffe's Code of Civil Procedure: vide the foot-note at p. 516, 2nd edition. The point is however set at rest by the decision of their Lordships of the Privy Council which is reported in Gur Narayan v. Sheolal Singh (1). The decision of the Privy Council refers to an earlier decision of Bilas Kunwar v. Desraj Ranjit Singh (2), and the principle of law stated by their Lordships is to the following effect (p. 575 of 46 Cal.):
“The bulk of judicial opinion is in favour of the proposition that in a proceeding by or against the benamidar, the person beneficially entitled is fully affected by the rules of res judicata.
6. The principle on which this conclusion was arrived at was that the benami system in India, under which property is acquired and held in names other than those of the real owner, has long been a common practice in this country, and there is nothing inherently wrong in it. The High Court of Bombay had, as far back as 1897, held in two decisions, reported in Ravji v. Mahadev (3) and Dagdu v. Balvant B. Natu (4), in favour of the view that a suit by a benamidar was maintainable, and the same view has been held in recent decisions of our Court: vide, for instance, the decision in Nowroji Rustomji v. Government of Bombay (5).
7. The second point that was raised was that inasmuch as the lower appellate Court found that defendant 2 had spent Rs. 1,000 on improvements, that amount should at any rate be allowed. Reference was made to Section 51 of the Transfer of Property Act.
8. But it is clear from S. 51 that such a claim can only be made by a transferee who makes improvements believing in good faith that he was absolutely entitled to the property. The word “transfer” is defined in the Act itself in S. 5 and defendant 2 cannot be said to be a transferee within the meaning of the term in S. 51. Reliance was placed on the decision in Harilal Banchhod v. Gordhan Keshav (6); but that case is no authority in support of the contention raised by Mr. Oka on behalf of his client. In that case the person who was allowed compensation for improvements was a transferee from a person who purported to act as the guardian of the plaintiffs in the case, and it was held that the transferee had spent money on improvements in good faith and under the Relief that the transfer in his favour conveyed to him absolute title.
9. As a result both the points raised by Mr. Oka must be disallowed. As to costs, I do not think that I should disturb the order of costs passed by the lower appellate Court. So far as this Court is concerned, though I dismiss the appeal, I think that the proper order in this case will be that each party should bear his own costs of this second appeal. Defendant 2 made improvements rather wrongly, but the benefit of the improvements will go to the present plaintiff. Defendant 1 is the last person to whom any costs should be allowed. Her conduct, as disclosed in the evidence, is indeed blameworthy. I therefore dismiss the appeal, confirm the decree of the lower appellate Court, but direct that each party should bear his or her out, costs of this second appeal.
R.M/R.K
10. Appeal dismissed.