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Case Number

Appeal Against Order No. 141 of 1923 and Appeal Against Appellate Order No. 64 of 1923., In A. A. O. No. 141 of 1923., In A. A. A. O. No. 64 of 1923.

Advocates

Mr. H. Suryanarayana for the Appellant.
Messrs. B. Satyanarayana and V. Govindarajachari for the Respondents.

Judges

Odgers
Curgenven, JJ.

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Smart Summary

Structured Summary of the Opinion (Execution Petitions Nos. 39 & 68 of 1916)

Factual and Procedural Background

The appeal challenges the order of the learned District Judge of Ganjam dismissing one of two rival execution petitions (E.P. No. 68 of 1916) and determining the right to execute a decree in the other (E.P. No. 39 of 1916). The core dispute was between two competing claimants to the right to execute a decree: (a) the appellant, the undivided brother of Kamalanabham Naidu (the named transferee on record), and (b) another petitioner, the undivided son (a minor) of the alleged real owner (Parasuramayya Chowdhari), represented by his next friend.

Material chronology from the opinion:

O.S. No. 20 of 1904: Bheemaraju Chetty obtained a decree.
25 November 1906: The decree was allegedly transferred by a written instrument (Ex. A) to Kamalanabham Naidu.
9 March 1908: Kamalanabham Naidu was recognised on the record as transferee.
1914: Kamalanabham Naidu died. The appellant is his undivided brother; the rival petitioner claims Kamalanabham was a benamidar for Parasuramayya (the real owner) or for the petitioner's father.

The principal procedural question before the courts was whether the executing court may inquire into alleged benami transactions under Section 47 of the Civil Procedure Code (CPC), and, relatedly, who may execute a decree when the named transferee has died.

Legal Issues Presented

Which of the two rival petitioners is entitled to execute the decree (i.e., who is the proper person to execute the decree now that the named transferee is dead)?
Can a question involving an alleged benami transaction be inquired into in execution proceedings under Section 47 of the Civil Procedure Code?
Does the decision in Palaniappa Chettiar v. Subramania Chettiar preclude an executing court from enquiring into benami character where a decree was assigned in writing and the named transferee (benamidar) is now dead?
Upon the death of an alleged benamidar, can the executing court reopen and decide under Section 47(3) who is the representative (or transferee by operation of law) entitled to execute the decree?

Arguments of the Parties

Appellant's Arguments

The appellant relied on the decision in Palaniappa Chettiar v. Subramania Chettiar to contend that where a decree has been transferred in writing to a person, that transfer is conclusive of the right to execute; therefore, a rival claimant cannot, by asserting he is the real owner, displace the named transferee (or his successors) in execution proceedings.
The appellant's counsel argued that the Palaniappa Chettiar principle excludes enquiry into benami character in execution proceedings and that the question could not be reopened under Section 47(3) after the death of the assignee/nominal transferee.
Supporting authorities were cited (e.g., Paupayya and Subayya v. Narasannah and K. Subbayya) to show the executory rights follow the person named on the record or recognised as transferee.

Respondent / Other Claimant's Arguments

The rival petitioner (claiming the benefit of a benami transfer to the deceased named transferee) relied on the proposition that when the named transferee (benamidar) dies the bar to the real owner's execution is removed and the real owner can be recognised in execution proceedings.
Authorities were cited to demonstrate that legal title may vest or devolve by operation of law (e.g., on succession, revocation of probate, annulment of insolvency), and thus the executing court must determine who is the proper representative or transferee by operation of law under Section 47(3) CPC.
Evidence was put forward (witnesses P.W.1–4) to show that Parasuramayya provided the consideration and that the transfer to Kamalanabham was intended to be benami.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Palaniappa Chettiar v. Subramania Chettiar	Where a decree has been transferred in writing, the assignment is conclusive of the right to execute and a third party cannot, under the guise of being the real owner, displace the named transferee under Order 21, R.16.	The court distinguished and limited this decision: it applies to prevent strangers from displacing a living transferee recognised under O.21 R.16, but it does not operate as a general bar to inquiry into benami questions where the named transferee is dead and Section 47(3) requires the court to determine who is entitled to execute.
Paupayya and Subayya v. Narasannah and K. Subbayya	Similar proposition to Palaniappa: the decree-holder is the person whose name appears on the record or who has been recognised as transferee.	Cited by appellant's counsel in support of the proposition that the ostensible transferee is conclusive for execution; the court treated it as supportive but not decisive where the named transferee has died.
Bhandari v. Ramachandra	In that case there was no decree when the assignment was made (circumstances differ).	The court held this authority did not aid the appellant's position in the present factual matrix.
Abdul Karim v. Chukhun	Recognises that the real owner may be entitled to execute where a benami transfer is admitted (benamidar not treated as transferee for execution purposes).	Referred to as an earlier case supporting the principle that the real owner's right to execute can be recognised in execution proceedings.
Our Narayan v. Sheolal Singh (Privy Council)	Recognises modern acceptance of benami transactions: a benamidar represents the real owner, acting as trustee and authorised to sue.	Used to show that benami transactions are acknowledged in later authority and that the legal relationship may resemble trust-like obligations.
Bilas Kunwar v. Desraj Ranjit Singh	Observation that benami system resembles a resulting trust.	Referred to support the analogy with resulting trusts and to suggest operation of law (e.g., Trusts Act provisions) could affect title.
Raja of Deo v. Abdullah	Contains a sentence suggesting a trustee's son could succeed to trusteeship in particular facts.	The court read that sentence narrowly and refused to accept it as establishing a general doctrine that benamidarship necessarily devolves on the legal representative.
Umasoondury Dassy v. Brojonath Bhuttacharjee	Where probate was revoked, a minor successor could execute a decree obtained earlier by the executrix (title devolved by operation of law).	Cited by respondent to show death/revocation removes a bar and that title may devolve by operation of law such that the successor may be allowed to execute.
A. B. Miller v. Abinash Chunder Dutt	Where adjudication in insolvency was annulled, the Official Assignee's decree was not annulled and the subsequent appointee became assignee by operation of law.	Cited to illustrate substitution by operation of law and that execution rights may vest in successors by operation of law.
Sowcar Lodd Govinda Doss v. Muneppa Naidu	Promissory notes taken under Court of Wards management became vested in the mortgagee when supervision was withdrawn (devolution of rights).	Cited to show similar instances where rights vest in another by operation of law.
Farther Muthiah Chettiar v. Govinddoss Krishnadoss	Implied that Order 21, R.16 may not be exhaustive of all cases coming within its scope.	Used to support the proposition that the executing court's powers are not strictly limited to O.21 R.16 and that Section 47 may require broader inquiry.
Ajodhya Roy v. Hardwar Roy (Mookerjee, J.)	The term "representative" (in a relevant section of the older Code) is broad: includes legal representative and any representative in interest, i.e., transferee of the interest of the decree-holder.	Quoted to support the view (Curgenven, J.) that Section 47(3) requires the executing court to determine who is the decree-holder's representative in a wide sense.

Court's Reasoning and Analysis

The opinion contains two concurring judgments (Odgers, J. and Curgenven, J.). Their reasoning may be summarised under the following points as directly stated in the text:

Scope and effect of Palaniappa Chettiar

Both judges accept Palaniappa Chettiar as authority for the narrow proposition that, where a decree has been validly assigned in writing and the assignee is alive and recognised under Order 21, Rule 16, a stranger cannot displace that assignee by claiming to be the real owner in execution proceedings.
Odgers, J. emphasised that this decision should not be read as a blanket prohibition on any inquiry into benami transactions in execution proceedings; specifically, it does not prevent inquiry where the named transferee has died and the right to execute is thereby no longer represented by an identifiable person on the record.

Meaning and operation of Section 47 (and Section 47(3))

Both judges held that Section 47 CPC requires the executing court to determine, on the merits, who is entitled to execute when there are competing claimants. Curgenven, J. expressly remarked that the court is bound under Section 47(3) to determine who is the decree-holder's representative "in this wide sense of the term."
Odgers, J. reasoned that the death of the named transferee "sets the whole matter at large," and thus the executing court must decide which contestant is in fact entitled to execute the decree.

Devolution of title and benami character

The judges examined whether benamidarship passes as a trusteeship to the legal representatives of the benamidar as a matter of course. Odgers, J. rejected a categorical rule that benamidarship necessarily devolves on legal representatives; he viewed the suggestion as unlikely given the personal nature of many benami arrangements and read the relevant cited authority (Raja of Deo v. Abdullah) narrowly.
Both judges accepted authorities showing that in many situations title and rights can devolve by operation of law (e.g., succession, revocation of probate, annulment of insolvency) and that an executing court may recognise such devolution and permit the successor to execute.

Application to the evidence in the present case

The court examined the oral evidence (printed depositions of the petitioner's four witnesses), and found that the District Judge who saw and heard witnesses was justified in accepting their testimony.
Key factual points relied upon: P.W.1's evidence that Parasuramayya suggested the transfer be made in Kamalanabham's name as a benami arrangement and that Parasuramayya and Kamalanabham agreed to make the transfer for about half the decree amount (Rs. 9,200); corroboration by P.W.2 and P.W.3 that Parasuramayya provided the money; attestors P.Ws.3 and 4 supported the benami character.
Odgers, J. observed that P.W.1's testimony, if accepted, decisively disposed of the appellant's claim; the judge saw no reason to disturb the District Judge's factual conclusions.
Curgenven, J. reached the same conclusion on the evidence and endorsed the District Judge's finding that the transfer was a benami transaction and that the real owner (or his successors) was entitled to the execution remedy.

Holding and Implications

HOLDING: The appeals are dismissed. The learned District Judge's decision — that the brother of Kamalanabham Naidu was not entitled to execute the decree in E.P. No. 68 of 1916 and that the competing petitioner (representing the claimed real owner) was entitled to execute — is affirmed. The Civil Miscellaneous Appeal is dismissed with costs, and Civil Miscellaneous Second Appeal No. 64 of 1923 is also dismissed.

Implications:

The immediate consequence is that the District Judge's orders stand and the rival claimant (representing the alleged real owner) remains entitled to execute the decree. The appellant (the undivided brother of the deceased named transferee) is not entitled to execution.
The court affirmed that an executing court has jurisdiction under Section 47 CPC to decide, on the merits, competing claims to the right to execute — including inquiries into alleged benami transactions — particularly where the named transferee on record is dead so that the matter is not merely a straightforward presentation of a living transferee under Order 21, Rule 16.
No novel or sweeping new principle of law was announced that would preclude future enquiry into benami character in execution proceedings; rather, the court confined Palaniappa Chettiar to its precise ratio and recognised the executing court's duty under Section 47(3) to determine who is the decree-holder's representative when that question arises.

Direct quotes and citations in the opinion were used as the basis of this summary. No facts, arguments, or legal propositions have been added beyond those present in the provided text.

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Bada Kristam Naidu (Petitioner In E.P No. 68 Of 1916). v. Durvada Patrudu Alias Janakiramayya Chowdhari And Others S (S And Petitioner In E. P. No. 39 Of 1916).

Odgers, J. — This is an appeal against the order of the learned District Judge of Ganjam on two Execution Petitions namely 39 of 1916 and 68 of 1916. In the former Katnalanabham Naidu was the petitioner as transferee and benamidar of the late Parasuramayya Chowdhari stated to be the real owner of the decree. Kamalanabham Naidu having died, the real owner's undivided eon, Nadesam Chowdhari, a minor, represented by his next friend Duvvada Butchamma, was the petitioner, and the respondents were Duvvada Patrudu alias Janakiramayya Chowdhari and Duvvada Gusayi Chowdhari. In E. P. No. 68 of 1916 the undivided brother Kamalanabham Naidu, transferee; is the petitioner and the respondents are the same as in E. P. No. 39 of 1916. The learned District Judge, whose predecessor held that the question which of these two rival petitioners can execute the decree is one to be decided under Sect. 47 Civil Procedure Code decided on the merits that the brother of Kamalanabham Naidu is not entitled to execute the decree in E. P. No. 68 of 1916 and dismissed the execution petition.

The facts are that in O. S. No. 20 of 1904 a certain Bheemaraju Chetty obtained a decree which he transferred by Ex. A to Kamalanabham Naidu. That was on the 25th November, 1906. Kamalanabham Naidu applied to be brought on the record as transferee decree-holder and was so recognised on the 9th March, 1908. In 1914 Kamalanabham Naidu died and the appellant is, as stated, his undivided brother. The petitioner in the other petition is the undivided nephew of the judgment-debtor and a cousin of Kamalanabham Naidu's mother. This petitioner alleges that his father was the real transferee and that Kamalanabham Naidu was only a benamidar for him. It is therefore to be observed that the original parties, i.e, the original transferor and the original alleged benami transferee and the original alleged real transferee are all dead, and the first question is, can a question involving a benami transaction be gone into under Sect. 47 Civil Procedure Code? It is maintained for the appellant that this has now been decided in Palaniappa Chettiar v. Subramania Chettiar and that decision must be taken to exclude every possible question of benami that may arise in execution, if that is so, the appellant is right. But the question is, does the decision go to that length? What the decision of the Chief Justice and V. V. Srinivasa Aiyangar, J., amounts to is that, where a decree has been transferred to a person in writing, nobody else can, under colour of being a real owner, apply to have the right of executing the decree conferred on him. In other words, the transfer is conclusive of the right to execute. In that case the assignment of the decree was taken in the personal name of one R. M. M. Subramaniam Chetty and it was attempted to be shown that this gentleman was only an agent with general power from one S. N. Subramania Chetty and that therefore the assignment to R. M. M. Subramaniam Chetty was simply a benami transaction for the principle. The learned Judge held that under O. 21, R.16 which lays down that where a decree is transferred by an assignment in writing or operation of law the transferee may apply for execution, excluded a person otherwise a stranger to the Court from coming forward and alleging that the transferee is a mere benamidar. V. V. Srinivasa Aiyangar, J., observed at the end of his judgment:

“It is also clear that the Code of Civil Procedure did really intend to prevent benamidars coming in and making applications to the Court on the general basis of the law relating to benami transaction.”

The case seems to me to amount only to this, namely that the rights of the transfaree to come in are confined unlike those of the decree-holder to O. 21, R. 16. This rule has to be read in connection with Sect. 47 (3) which lays down the procedure to be adopted when an assignee as representing his assignor wants to execute. In further support of his argument the learned vakil for the appellant cited Paupayya and Subayya v. Narasannah and K. Subbayya which is a very similar case to Palaniappa Chettiar v. Subramania Chettiar except that the decision which was disapproved in the later case was to the precisely opposite effect. There Johnston's name appeared on the face of the decree and it was alleged that be had obtained the decree as agent for Arbuthnot & Co. It was held that the decree-holder was the person whose name appeared on the face of the record or had been recognised as transferee. The decision in Bhandari v. Ramachandra does not appear to help the appellant as in that case there was no decree when the assignment was made the question really is whether on the death of the assignee, who we will assume, for the present to be a benamidar, the question under Sect. 47 (3) can be reopened de novo and the matter decided as to who is really the representative of the decree-holder. It does not seem to me that the case in Palaniappa Chettiar v. Subramania Chettiar understood in the way I have set out above affords us any assistance in a matter of this sort unless it can be taken, as I do not think it can to be a general declaration that no kind of transaction involving the doctrine of benami will be enquired into by the executing Court. If the law really meant that, it would have been quite easy to have inserted a provision in O. 21, R. 16 or in Sect. 47. There is no question here of going behind the decree because the person named in the decree is dead and the question seems to be to resolve itself into one quite as much to the title of the decree as one involving this question of benami. In fact I would go so far as to say that this question of benami shrinks to very unimportant proportions in a matter of this sort, the question being who is the real owner of this decree which is at present so to speak floating about and without any person authorized to execute it. The right of the real owner to execute the decree is recognised in an earlier case in Abdul Karim v. Chukhun where the benamidar admitted that a certain sale to him was benami and that the real and beneficial transferee was the father of the applicant for execution on which the lower Court allowed the decree to be executed. Mitter, J., in that case observed that the benami system is recognised in this country and a benamidar is not a transferee of the decree, whereas the section only authorised the Court to allow the transferee of the decree to apply for execution. That no doubt has been modified in modern times and benami transactions have been recognised in later decisions as for instance by the Privy Council in Our Narayan v. Sheolal Singh holding that a benamidar though not beneficially interested in property standing in his name represents in fact the real owner and in so far as their relative legal position is concerned a mere trustee for him and is authorised to sue. Sir George Farwell in an earlier case in Bilas Kunwar v. Desraj Ranjit Singh observed that this system had a resemblance to a resulting trust. If that is so, it seems difficult to say that the title to this decree has not resulted to the appellant by operation of law such as is contemplated by Sect. 82 of the Trusts Act. It has been argued that when a benamidar dies he being in the position of a trustee under the Trusts Act and there being no person under Sect. 73 to appoint a successor to him, his legal representative must assume the benami character which was held by his father or other predecessor. The case in Raja of Deo v. Abdullah was cited to us for the proposition that a trusteeship did devolve on the late trustee's legal representative. It is based on one sentence at the end of the Privy Council judgment where the facts are extremely complicated. The sentence runs as follows:

“Kasinath was a trustee for Rajah Bhikam, and Lajjadhari could only succeed to his father's trusteeship.”

Kasinath was a benamidar for the Rajah and his son Lajjadhari executed a conveyance acting on the instructions of the Rajab. It can hardly be denied that the Rajah was the true owner and that Lajjadhari had nothing in himself that he could convey. I think that is all their Lordships meant by the sentence in question and that it would be an extraordinary doctrine to lay down that when a benamidar dies, of necessity the benamidarship is carried on by his relations who happened to be his legal representatives. A benami transaction is, I imagine, generally entered into with one who is personally trusted or personally selected for some reason that commends itself to the transferor and it is extremely unlikely that any benamidarship would be intended to last beyond the life of the person who is interested as benamidar. Various cases were cited to as on behalf of the respondent to show that the death of the benamidar merely removes a bar to the legal as well as the beneficial enjoyment of the property by the beneficiary. For instance, on revocation of probate Umasoondury Dassy v. Brojonath Bhuttacharjee an executrix took out probate and obtained a decree for rent. The probate was revoked by a minor who applied for execution of this decree. The Court, held the minor could execute as he had succeeded his father by the operation of law. So in A. B. Miller v. Abinash Chunder Dutt where the adjudication in insolvency was annulled it was held that the decree obtained by the Official Assignee was not annulled thereby and that the applicant had become assignee by operation of law as he had been appointed trustee to the estate of the late ex-insolvent. Sowcar Lodd Govinda Doss v. Muneppa Naidu promissory notes were taken from the debtors to an estate by the manager under the management of the Court of Wards for the latter. The Court held that they became vested in the mortgagee when the superintendence of the wards was withdrawn. Farther Muthiah Chettiar v. Govinddoss Krishnadoss which was heard by a bench of three Judges, seems to imply that O. 21, R. 16 is not exhaustive of every case which might come under its provisions. I that is so, it cannot be held that R. 16 is final for all executing purposes. But however that may be, I am of opinion that as a matter of fact R. 16 has little or no application to the present case. It seems to me that by the death of the original parties the whole matter is set at large and that it is the duty of the Court under Sect. 47 to decide on the merits which of the contestants is in fact entitled to execute this decree. So far then the contention of the appellant must be overruled and I now proceed to the merits of the case. There is no need to say much about these. The evidence of the petitioner's witnesses, 4 in number has been printed and we have been taken through it. The Judge who saw and heard the evidence relied upon all these witnesses and it seems to me that in particular if P. W. 1's evidence is accepted the appellant is out of Court. In fact it was hardly suggested otherwise. P. W. 1 in answer to the Court says that Parasuramayya suggested to the witness that the transfer should be in Kamalanabham's name benami for him; and also that Parasuramayya suggested that Kamalanatham should be “shown as the transferee” as the judgment-debtor was his own brother. The witness could not say who actually paid the money. But there seems to be from the evidence no doubt that the money provided by Parasuramayya he and Kamalanatham having settled to make the transfer for about half the decree amount, namely Rs. 9,200. This appears to be probablised by the evidence of P. W. 2 who said that just at that time Patrudu Chowdhari was preparing a fresh suit for partition as the High Court had dismissed his previous suit on a preliminary point P. W. 3 says that he is sure that Parasuramayya provided the money and I do not think there is any point to be made of his previous statement in 1908 that the consideration was paid by Kamalanabham because in his present statement he says he is not sure who actually handed over money but that if he said that Kamalanabham did it in 1908 it is probably right. There is in my opinion no reason to think that the learned District Judge came to a wrong conclusion on the merits and as I am against the appellant also on the point of law this Civil Miscellaneous Appeal must be dismissed with costs.

Civil Miscellaneous Second Appeal No. 64 of 1923 will also be dismissed.

Curgenven, J.—Following Palaniappa Chettiar v. Subramania Chettiar it is no doubt true that the real owner of a decree cannot claim under O. 21, R. 16 to execute it where it has been transferred in writing to the name of a benamidar for him. But once the benamidar is dead, this decision does not appear to me to be any authority for the position pressed upon us that real owner still cannot be heard to say that the decree is his; nor I think have we been shown any other authority for the proposition. Once the benamidar is dead, the question necessarily arises, who is his representative, or, to use the language of O. 21, R. 16, who is his transferee by operation of law? In the ascertainment of this, there does not appear to be any provision in the Code, or any other authority, requiring the executing Court to exclude the real owner from coming forward and proving that the decree is his property. We have been shown nothing in support of the contention that, in such circumstances, the ostensible owner is to be regarded as the real owner for the purpose of ascertaining his representatives. There is a series of cases Umasoondury Dassy v. Brojonath Bhuttacharjee. A. B. Miller v. Abinash Chunder Dutt and Sowcar Lodd Govinda Doss v. Munepa Naidu in support of the view that, when the title of the holder of a decree or of a transferred decree terminates when for instance the holder is an executor and probate is revoked, when he is a trustee under a trust found to be invalid, when he is an Official Receiver, and the adjudication is annulled—the owner upon whom the title devolves may be substituted by the executing Court. That Court is clearly bound under Sect. 47 (3) Civil Procedure Code to determine who, in this wide sense of the term, is the decree-holder's representative. To quote Mookerjee, J., in Ajodhya Roy v. Hardwar Roy.

“the term ‘representative’, as used in Sect. 214 of the Code of Civil Procedure of 1882, means, not merely the legal representative in the sense of the heir, executor, or administrator, but includes any representative in interest, that is, any transferee of the interest of the decree-holder…………..”

The further question then is whether, when a benamidar dies, the real owner is his representative or transferee by operation of law. Some argument has been addressed to us to show that the benamidar was in the position of a trustee, and that, upon the death of a trustee and until another trustee is appointed, his natural heir succeeds to the trust. That may be true of a trust created under the Trusts Act, but I do not think that a ordinary benami title is governed by this rule. If the real owner sued to establish his title to the property, it is indisputable that he would be entitled to a decree declaring it, and, if that be so, he may equally establish his title in proceedings under Sect. 47 Civil Procedure Code. In my view therefore, the lower Court was right in deeming itself competent to go into this question.

On the merits it appears to me that there is a good deal of substance in the argument that Parasuramayya had considerable motive for desiring to acquire this decree where as it would have been a foolhardy action on the part of the benamidar Kamalanabbam. The circumstances are sufficiently explained by one of the vakils P. W. 2, namely that Parasuramayya himself owned only 4/5ths of the property and that the remaining 1/5th was under litigation between him and his brother. It was natural in those circumstances that Parasuramayya should desire to acquire the decree held by his brother's mortgagee. The evidence relating to the sources from which the money was obtained is not itself extremely cogent but if the evidence of the vakil P. W. 1 is accepted it is conclusive upon the question of benami, because he says that the parties clearly and unambiguously gave him to understand that that was the nature of the transaction. It is true that a considerable interval, some 16 years, elapsed between that transaction and the date of his deposition but that is not a reason for rejecting his evidence. There is further the testimony of the attestors P. Ws. 3 and 4. It is said that P. W, 3's evidence is to be considerably discounted by the circumstance that he said in Ex II Kamalanabbam paid the money. But granting that the transfer was a benami transaction, and he desired to speak in support of it, he could have said nothing else.

The learned District Judge has pointed out that the alleged benamidar never during the course of the 8 years that he lived after acquiring the decree attempted to execute it and in view of this consideration and other considerations which I have mentioned I think the District Judge was clearly right in holding that it was a benami transaction. I agree accordingly with the orders proposed by my learned brother.

W. S. S.Appeals dismissed.

Bada Kristam Naidu (... v. Durvada Patrudu Alia...