S.K Ghose, J.:— The plaintiff Moulavi Ali Ahmed who is the appellant in this second appeal, brought the suit on the following allegations. The 10 kanis and odd lands described in Sch. ka to the plaint belonged to the plaintiff's step-brother Ameer Ali who had mortgaged them in 1313 B.S to one Bhuban Mohan Sen. In 1318 B.S (1911) Ameer Ali executed a deed of agreement in favour of the plaintiff stipulating to sell to him 4 kanis out of those lands at Rs. 650. Plaintiff paid down Rs. 125 and after obtaining possession of two plots, viz. Nos. 6 and 16 built a portion of his homestead thereon. It was a part of the agreement that Ameer Ali would redeem the mortgage and execute a sale deed within a certain time and that failing this, plaintiff would pay off the mortgage and recover the excess if any over Rs. 625 from Ameer Ali. The latter did not redeem the mortgage. Plaintiff's allegation is that he got information that some other persons were attempting to purchase the mortgage from Bhuban Mohan Sen. So on 26th November 1913 plaintiff himself purchased the mortgage bond for Rs. 1200. This was done in benami of plaintiff's son-in Law Munshi Ali Ahmed, who is defendant 1. Plaintiff then brought Mortgage Suit No. 322 of 1920 in the Court of the Subordinate Judge at Noakhali, obtained a decree, and auction-purchased the mortgaged lands on 23rd November 1923. All this was done in the benami of defendant 1. Plaintiff took delivery of possession on 22nd August 1924 but he got actual possession of only five plots, viz. plots 6 and 16 which were already in his possession from the time of the agreement for sale and also plots 12, 13 and 17. The remaining plots were in the actual possession of defendants 4 to 11 who were tenants under Ameer Ali; plaintiff then instituted Title Suit No. 118 of 1927 in the Court of the Subordinate Judge for recovery of khas possession also in the benami of defendant 1. This suit was decreed on 22nd January 1932. There was an appeal by defendants 4 to 11 (Appeal No. 75 of 1932) and also cross-objection by plaintiff. These were decided on 24th July 1934, the result being that the appeal was dismissed for want of prosecution and the cross-objection was decreed as to mesne profits, etc.
2. Before the disposal of the appeal, plain, tiff obtained a memorandum or eaddustnamah from defendant 1 acknowledging that defendant 1 was a mere benamidar of the plaintiff. Subsequently the parties fell out. On 10th February 1934 defendant 1 executed a deed of sale in favour of defendant 3 in respect of the lands of Suit No. 118 (thus under appeal) and also his rights under the mortgage decree after the appeal had been disposed of; defendant 1 and defendant 3 jointly on 6th October 1934 executed a deed of sale in favour of defendant 2 who is benamidar for her husband, defendant 12, in respect of all the plots, excepting plots 6 and 16, and all rights under the decrees in Suit No. 118 and Appeal No. 75. Plaintiff's case is that these kobalas were fraudulent, collusive and without consideration and that defendant 1 refused to execute a deed of relinquishment in accordance with the terms of the eaddustnamah. Defendant 2 started execution of the decree purchased by him. So plaintiff brought the present suit praying for reliefs which may be summarized as follows: (1) that his title to the suit lands be declared and his possession therein be confirmed; (2) that it be declared that he was the real purchaser of the mortgage bond, the real plaintiff in this suit, to enforce that bond and the real purchaser of the auction sale in execution of the subsequent decree; (3) that it be declared that he is the real decree-holder in T.S 118 of 1927 and T.A 75 of 1932; (4) that defendant 1 be directed to execute a deed of release in terms of the eaddustnamah; (5) that it be declared that the kobalas in favour of defendants 2 and 3 are fraudulent, collusive and without consideration. Defendants 4 to 11 who are said to have since made over possession to the plaintiff did not contest the suit. The contest was by defendants 2, 3 and 12. They denied the alleged benami character of defendant 1 and pleaded that the suit was barred by Section 66 of the CPC and by the principle of estoppel. They further pleaded that defendants 2 and 3 were bona fide purchasers for value and that the eaddustnamah was not a genuine document. Defendant 1 filed written statement supporting these contentions, but he did not appear at the trial. The Subordinate Judge granted all the reliefs and decreed the suit. Defendants 2 and 12 appealed. The District Judge has held as follows:
My findings are that defendant 1 was the bena-midar for the plaintiff in the purchase of the mortgage bond from Bhuban Mohan Sen and in subsequent suits arising from the purchase of the mortgage bond, and that transfers made by defendant 1 by the kobalas Exs. A and H though for value were not made in good faith; but the plaintiff's suit must be regarded as barred by Section 66 of the CPC, and also the plaintiff must be regarded as estopped because fraud on his step brother Ameer Ali Taluqdar by benami purohase was carried out; and finally the plaintiff's case on the eaddustnamah could not succeed because the eaddustnamah was not proved to be genuine, was void for want of consideration and the contract contained therein did not help the plaintiff.
3. On these findings the suit was directed to be dismissed. Hence this second appeal by the plaintiff. The first question in this appeal is whether the suit is barred under Section 66 of the CPC. The Subordinate Judge held in the negative on two grounds: (1) that the benami purchase of the mortgage bond had been made by the plaintiff privately before his auction purchase in execution of the mortgage decree; (2) that there was an agreement as per eaddustnamah Ex. 1(a) which plaintiff was entitled to enforce. The second point is no longer available in view of the finding of fact in the lower Appellate Court that the eaddustnamah is not genuine. On the point of law the learned District Judge has differed from the Subordinate Judge. In this Court Mr. Gupta for the appellant has reiterated the Subordinate Judge's point of view that the relationship of benami existed prior to the auction purchase at the execution sale. He has further contended that S. 66 has no application when the plaintiff is seeking for confirmation of possession and not for recovery of possession on the strength of the auction-purchase and also when the plaintiff prays for declaration that he was the real plaintiff in a certain suit and the real auction-purchaser in execution of the decree in that suit. I did not understand Mr. Gupta to contend that S. 66 would only apply to the particular defendant who was the certified purchaser, viz. defendant 1, and not to the other defendants, viz. the present contesting defendants who derive their title from defendant 1. Indeed such a contention would not be tenable in view of the fact that in the present S. 66 the words no suit shall be maintained against any person claiming title under a purchase certified by the Court have been substituted for the words “no suit shall be maintained against a certified purchaser” which occurred in S. 317 of the Code of 1882. The objection under S. 66 applies to a suit against the assignees of the benamidar: 32 CWN 112.1 It may be added that there is here no case of fraud such as would make sub-s. (2) of S. 66 applicable.
4. Turning now to the question of maintainability, Dr. Pal for the respondents has stated that, while he is not interested in opposing the plaintiff getting a declaration that he is real purchaser of the mortgage bond from Bhuban Mohan Sen or that he is the real plaintiff in the suit upon that bond, he does oppose the other reliefs asked for in this suit and they are all hit by S. 66. It has been held that the Section must be construed strictly. But the words “no suit shall be maintained” are similar to the opening words of S. 80 under which it has been held that the Section is applicable to all forms of action and all kinds of reliefs: 54 IA 338.2 The test is, can the plaintiff get any relief or any material relief since he will'not be satisfied only with the aforesaid declarations which are not opposed, without proving that the purchase certified by the Court was made on behalf of the plaintiff. He cannot. That furnishes the “ground” of the applicability of S. 66, sub-s. (1) so that the suit cannot be maintained.
5. In support of his contention that the Section does not apply when the plaintiff is already in possession, Mr. Gupta has relied on 23 Cal 699.3 That case does not appear to have been followed; on the other hand it has been dissented from in 53 Call 297.4 There it is pointed out that it is immaterial whether the plaintiff is in possession and seeks a confirmation of possession or whether he is out of possession and seeks to recover possession; in either case S. 66 applies. In this view Cuming, J. followed Strachey, C.J in 23 All 175.5 This, decision was followed in 12 Pat 616.6 Mr. Gupta has referred us to 20 IA 997 but there not only was plaintiff in possession but defendant failed to prove title so that, he became a trespasser, while here the defendants hold title through the auction purchase which cannot be impeached by the plaintiff. The fact that defendant it was benamidar before the auction sale is also no answer to the objection under S. 661 for it does not matter how the certified purchaser got his funds. It may be added that plaintiff makes no case of subsequent acquisition of title, as for instance by adverse possession, and his story of the saddustnamah has been found to be false.
6. Dr. Pal has also challenged the contention of the appellant that the plaintiff is already in possession and therefore prays for confirmation possession. Dr. Pal points out that the District Judge dealt with the question of possession as an element in the proof of benami. Plaintiff's possession of plots 6 and 16 is admitted; these plots are also not covered by the decree in Suit No. 118. The learned Judge finds that the plaintiff got possession in part of some of the other plots. As regards the defendants, admittedly they had no possession in any plot except plots 12, 13, 11 and 17.
7. But “defendant 1 never had possession of any part of the suit lands.” This finding may be sufficient to prove benami, but is it sufficient to justify the prayer for confirmation of possession? Dr. Pal contends that it is not and suggests that if necessary the matter may be remanded for proper decision. It is however not necessary to pursue the matter further in my view of the applicability of S. 66. As mentioned already, the suit is based on the ground that the certified purchase was made on behalf of the plaintiff and therefore the suit is not maintainable. Indeed as the appellant's advocate in reply conceded, it would have been better for his client to have waited for the other side to bring the suit against him so that he could take the ground in defenoe. His suit must fail under Section 66 of the CPC. The next point that may be considered in this appeal is that of estoppel. The question is whether the plaintiff is estopped from setting up his title because he deposed in the mortgage suit to the effect that defendant 1 and not he was the real purchaser of the bond and because of his fraud on Ameer Ali by violating the agreement for sale with him. On the first point the learned Judge has held that the defendants were aware of the whole position and so no estoppel arises. On the second point he has held that plaintiff is estopped. The fraud on Ameer Ali lay in this that, although the agreement was that plaintiff would redeem the mortgage bond if Ameer Ali should fail to do so, plaintiff in fact went and purchased the bond thereby making a bargain to his advantage. On the other hand when the mortgage suit was brought and Ameer Ali pleaded that Moulavi Ali Ahmed had fraudulently purchased the mortgage bond instead of redeeming it, Moulavi Ali Ahmed deposed that not he but his son-in law had purchased the bond. This was for the purpose of “meeting the defence” as the learned Judge says, and so Ameer Ali was defeated. The learned Judge says further that defendants 2 and 3 were nevertheless aware of the whole position and so no estoppel arises on this ground. At the same time, since Moulavi Ali Ahmed himself deposed in open Court that not he but his son-in-law was the real purchaser, can it be said that defendants 2 and 3 acted otherwise than bona fide in taking the kobalas from defendant 1?
8. Mr. Gupta for the appellant has contended that no case of fraud was made in written statement or pressed at the trial. Para. 7 of the written statement does allege fraud as due to plaintiff's deposition in the mortgage suit, but it is not specifically stated that plaintiff took up this attitude to defeat Ameer Ali's claim. Issue 15 of the trial Court mentions fraud, but the Subordinate Judge said nothing about it though the facts were all in evidence. Dr. Pal concedes that his clients are not affected by the fraud on Ameer Ali, but his contention is that the defrauding party can not be allowed to disclose his fraud for the purpose of resiling from his position. “The party fails who first has to allege the fraud in which he participated”: AIR 1918 Mad 3658 referring to 35 IA 98.9 The learned Judge also refers to 4 CWN 28910 and 36 CLJ 49111 wherein the same principle was affirmed. Dr. Pal has pointed out that according to the findings of fact which are conclusive in this appeal, the appellant has been guilty of fabricating false documents. As the learned Judge says: “plaintiff clearly has not shrunk from questionable means in order to prove his case.” In order to prove the benami purchase of the mortgage bond, plaintiff produced a bainapatra, Ex. 3. The learned Judge finds that it is not a genuine document and that it was surreptitiously introduced at a late stage of the case. In order to prove his possession plaintiff produced two kabuliyats Exs. 6 and 6(a). These also the learned Judge does not consider to be genuine. In order to meet the objection under Section 66 of the CPC, plaintiff came forward with a story of subsequent agreement by defendant 1 to execute a deed of release as per eaddustnamah Ex. 1(a). The learned Judge holds that the genuineness of this document has not been proved satisfactorily. In the Madras case, AIR 1918 Mad 365, the plea of benami was not allowed to be set up by way of defence. In the present case the appellant is in a worse position, he being the plaintiff. I hold therefore that the suit is not maintainable on the ground that the plain, tiff cannot ask for relief against his own fraud. It follows I think from this that the contesting defendants can also get the benefit of Section 41 of the Transfer of Property Act. Dr. Pal has referred us to 18 WR 16612 where there was admission by the ostensible owner that she was benamidar, but it was held that it was not sufficient to put the purchaser upon inquiry. In the present case, before the contesting defendants 2 and 3 purchased, there were the mortgage suit, the suit No. 118, criminal cases under Section 145 of the Cr PC, etc. and a rent suit, vide plaint Ex. C. In all these the decision was that defendant 1 was the real owner on the basis of the deposition or the admission of Moulavi Ali Ahmed. Interested persons who assailed this position were repelled and decision was given on the basis of defendant 1 being the true owner. The mere fact that defendants 2 and 3 are related to the defendants in the above suits does not outweigh the circumstance that those defendants were defeated. The District Judge finds that the kobalas Exs. A and H were for consideration. He at the same time finds that the purchase was not made bona fide. He seems to confuse bona fides with the motive which led defendant 1 to sell to defendants 2 and 3. As the learned Judge says:
Plaintiff did not challenge the reality of the kobala Exs. A and H but only stated that defendants 2 and 3 were not the real purchasers but benamidars for others who were defendants in the previous title suits.
9. That does not defeat Section 41 of the Transfer of Property Act. It seems to me that all the elements of that section are found and the suit must fail on this ground also. This being our view on the main grounds discussed in this appeal, the appeal fails and it is dismissed with costs. The cross-objection is dismissed.
Patterson, J.:— I agree.
D.S/R.K
10. Appeal dismissed.