The facts found are: Plaintiff and the defendant agreed that at Court auction the property in suit should be purchased in the name of the defendant and that one half of it should be conveyed to the plaintiff after obtaining the certificate of sale: some money was paid before the Court auction, and apparently plaintiff was put in possession of the half share, In September 1907, a promissory note for the balance of the purchase money due from plaintiff was executed. Nearly five years afterwards, the promissory note was discharged, and Exhibit A was executed to the plaintiff in which it was provided hat the defendant should execute a conveyance for the half share whenever plaintiff demanded it. This suit is to enforce that agreement. In the plaint it is stated that the half share intended, to be conveyed was purchased in the name of the defendant benami for the plaintiff. The question for consideration is whether the suit is within the mischief of Sect. 66 of the Code of Civil Procedure.
There is some difference between the language of Sect. 317 of the old Code and that of Sect. 66 of the new Code: but we do not think there is any material alteration in the principle of the section. In this Court, the decisions have not been uniform on the question; in Kumara v. Srinivasa(1), Sankunni Nayar v. Narayanan Nambudri(2) and Kumbalinga Pillai v. Ariaputra Padiachi(3), suits under similar circumstances were held not barred by Sect. 317. On the other hand, in M. Subramaniam Pillai…Plaintiff v. Gopalarama Subramania Aiyar…Defendant .(4), the decision was the other way. Recently, Coutts Trotter and Srinivasa Iyengar, JJ., had to consider the question in A. S. Nos. 167 and 215 of 1914.* Apparently, in the view taken by Coutts Trotter, J., such a suit would not be affected by Sect. 66 of the Code. There is also the dictum of the Judicial Committee in Ganga Sahai v. Kesri(5), that the object of the section is to prevent judgment-debtors from getting property purchased in the names of third parties benami for themselves. The language of the section seems to be wider: However, as the question is one of some importance, we have resolved to ask the opinion of a Full Bench on the following question:—
“When the plaintiff alleges that the auction-purchaser is a benamidar for him and sues to enforce specifically a subsequent agreement executed by the certified purchaser to convey the property, is Sect. 66 a bar to such a suit?”
[This Second Appeal came on for hearing in pursuance of the above Order of Reference before the Full Bench as constituted above.]
Mr. P. Chenchiah for Mr. T. Prakasam for the Appellants.
Mr. V. Lakshminarayana for the Respondent
OPINION
We do not think that this is a suit against the auction-purchaser on the ground that the purchase was made on, behalf of the plaintiff
within the meaning of Sect. 66, Civil Procedure Code. The finding is that the defendant agreed that the property should be purchased in the name of the defendant and that one-half of it should be conveyed by the defendant to the plaintiff after the sale certificate had been obtained. This in our opinion is not a benami transaction at all. The mere fact that the plaintiff alleges in the plaint that the auction-purchaser was a benamidar for him has not in our opinion the effect of debarring the plaintiff under Sect. 66, Civil Procedure Code, from maintaining his suit for specific performance of an agreement by the auction-purchaser subsequent to the purchase to convey the property to the plaintiff. Such an agreement is not inconsistent with auction-purchaser's own title, but rather the reverse. We answer the question in the negative.
S. S.Question answered in the negative