Kamurudeen Sahib v. Noor Mahomed Usman Sahib

The Judgment of the Court was delivered by

Sadasiva Aiyar, J.:— The plaintiffs are the appellants. They are the heirs of one Abdul Gannay Sahib, deceased. Their case is that Abdul Gannay 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 Gannay Sahib and that in pursuance of the same scheme, he (Abul Gannay) put Abdul Kadir Sahib in possession of the properties, but on the understanding that Abdul Kadir should be a trustee of the property for Abdul Gannay Sahib and make over all the profits to Abdul Gannay till such time as Abdul Gannay 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.

2. The lower Courts dismissed the suit of the plaintiffs on the strength of the provisions of Section 66 of the CPC. 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 Gannay 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 appeallants' learned Vakil, Mr. T.R Ramachandraier, that as Abdul Gannay put Abdul Kadir in possession of the properties in January 1899 and as Abdul Kadir took upon himself the duties of a trustee in respect of these properties for Abdul Gannay, Section 66 of the CPC cannot be an obstruction to there success of the plaintiffs' suit which is brought by the beneficiaries against the heirs of the trustee.

3. As regards the provisions of Section 66 of the CPC, I see no reason to depart from the opinion I gave expression to in the case of Kandaswamy Pillai v. Rangasawmy Nainar(1). The verbal changes introduced in the old S. 317 by clause (1) of the present S. 66 make it clear, to my mind, that when 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 statutory bar raised by the S. 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 S. 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 Gannay or his heirs. Under the Section 5 of the Trusts Act, “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 the trustee and registered, or by the will of the author of the trust or of the trustee.” It is not alleged that Abdul Kadir or the defendants have, by a registered non-testamentary instrument or by a will, created any such trust. As regards mere possession, even taking it that Abdul Gannay 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 profits ceased according to the plaintiffs' own case.

4. As for the cases Monappa v. Surappa(2), Musammat Buhuns Kowur v. Lalla Buhooree Lall(3) and Lokhee Narain Roy Chowdhry v. Kalypuddo Bandopadhya(4), quoted on plaintiffs' side, these decisions have been considered in the case of Bishan Dial v. Ghazi-uddin(5), and the learned Judges, following the dictum, of their Lordships of the Privy Council found in one of these very cases, Musssammat Buhuns Kowur v. Lalla Buhooree Lall, 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 relied 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 into force, cannot transfer title from one party to another.

5. 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.

6. 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 S. 66, sub-S. (1), in such a manner as to prevent the bar against the plaintiffs' suit. The appellant relies, however, in the first instance, on the arguments based on a dictum cited with approval by the Privy Council in Petherperumal Chetty v. Muniandy Servai(6) 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 disappears 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 S. 66 is directed. S. 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-S. (2): First, a suit for a 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 a 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 connivance of the real owner or real purchaser as the case may be. It cannot be contended that the present suit comes under any of the three classes of suits.

7. Reliance is then placed upon the cases Monappa v. Surappa, Sankunni Nayar v. Narayanan Nambudri(7), Natesa Ayyar v. Venkataramayyan(8) and Minakshi Ammal v. Kalianarama Rayer(9).

8. Monnappa's case proceeds on a basis which, it seems to me, is no more applicable in the case of immoveable property exceeding Rs. 100 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 S. 66, sub-S(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.

9. The other case relied upon by the appellants, Sankunni Nayar v. Narayanan Nambudri, is also distinguishable. There the Court held that the transaction was not a benami transaction. The facts of that case did not fall within S. 317 of the old Code corresponding to S. 66(1). There the property was purchased by one Raman Nambyar as managej on behalf of the plaintiff, who was a minor; (the learned Judges speak of him both as manager and as agent). Raman Nambyar acknowledged himself as the 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 plaint of 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 S. 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 S. 66 itself recognises a distinction between the real purchaser and the purchaser certified as such in the sale certificate. That fact does not favour the appellants. 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.

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

S.N/R.K

11. Appeal dismissed.