1. The plaintiff in the Court of first instance is the appellant before me. He sued the respondents, Khaderu Teli and several others, on the allegation that the defendants other than Khaderu Teli and he, the plaintiff himself, once formed a joint Hindu family. While the family was joint Bihari Lal, the father of defendant 2, as the then head of the family, purchased the property in suit in the name of defendant 1. Bihari Lal had made similar purchases in the names of people other than members of the family, but no dispute arose in respect of those properties. There was a partition in the family, and the property In suit fell into the share of the plaintiff. The plaintiff has, however, been resisted by the auction-purchaser, defendant 1, and he has therefore brought this suit to have his right established and for possession.
2. The defence of Khaderu was that he was the real purchaser of the property, and that Section 66, Civil P.C., barred the suit.
3. The trial Court held that Section 66, Civil P.C., was no bar to the maintenance of the suit, and that as a matter of fact Khaderu was not the real purchaser, but that the purchase was made for the family by Bihari Lal, the head of the family.
4. There was an appeal by Khaderu, and the learned District Judge was of opinion that the plaintiff had failed to establish that Khaderu was not the real purchaser, but the real purchaser was the family consisting of the plaintiff himself and the defendants other than defendant 1. The learned Judge does not express any opinion as to the applicability or otherwise of Section 66, Civil P.C.
5. In this Court I have heard arguments on Section 66 and am of opinion that it completely bars the suit.
6. There is no allegation of fraud in the plaint. There was no allegation of fraud in the lower appellate Court, and there is no allegation of fraud in the grounds of appeal filed in this Court. The simple position is this: The head of the family made the purchase on behalf of the family, but allowed the name of Khaderu to be entered in the sale certificate. The question is whether, in the circumstances, the plaintiff's suit is barred.
7. The plaintiff must accept the position that the purchase was made on his behalf as well as on behalf of the other members of the family. If he does not take up this position he has no title to the property at all. Therefore he cannot escape from the position that the purchase was made on his behalf, although it was made through the agency of the then head of the family, Bihari Lal. The case therefore, falls exactly within the language of Section 66, Civil P.C.
8. A large number of rulings have been quoted before me. One of the cases quoted is Narain Dei v. Durga Dei [1913] 35 All. 138. In this case, a widow in possession of her husband's property made a purchase at an auction sale, and employed the defendant's name as the certified purchaser. On her death her daughter sued for recovery of the property. The question arose whether the suit was maintainable. Two learned Judges of this Court were of opinion that as the daughter, the plaintiff in the case, did not claim under her mother but under the last male owner, her father, Section 66, Civil P.C., had no application. I express no opinion on the correctness or otherwise of this statement of law. I might, however, point out that, so long as the widow lived, she represented the entire estate, and it was her purchase that was giving title to her daughter. In the circumstances it might be argued, with some force at any rate, that the daughter was claiming through her mother. However, as I have said, that case is entirely different from the case before me. Here the purchase was made for the plaintiff as one of the members of the family. The case of Baijnath v. Bishen Devi A.I.R. 1921 All. 185 is directly on the point. In that case the father of the joint Hindu family made a purchase in the name of the defendants. The father having died one of the sons sued for a declaration that the property belonged to himself and his brother. It was held that the suit was not maintainable. This case was dissented from in Nataraja Mudaliar v. D.P. Ramasami Mudaliar A.I.R. 1922 Mad. 481. That was a partition suit in which the benamidar, the head of the family, who had made the purchase in the name of the benamidar, and other members of the family were parties. The question arose whether the suit was maintainable against the benamidar, and it was held that it was. That case is easily distinguishable, though the learned Judges thought proper to dissent from the view taken in this Court in Baijnath's case. In the partition suit, the members of the family other than the person who was responsible for the benami purchase, might be given property other than the property in question, and the partition could go on without any legal bar. Then it would be a matter between the auction-purchaser and the head of the family, who was responsible for the benami purchase, to settle between themselves who should got the property. Other cases have also been cited. The case of Ganga Sahai v. Kesri A.I.R. 1915 P.C. 81 is quite different. There, one of the three decree-holders executed the decree for the benefit of himself and other decree-holders. It was a mortgage decree. In execution of it the property was sold and was purchased by the decree-holder who was actually taking an interest in the execution of the decree. It was hold that the purchase was made on behalf of all the three decree-holders. There can be no doubt, as their Lordships of the Privy Council pointed out, that there was no question of benami purchase. It would be difficult to see how it could be a benami purchase, as the name of one of the decree-holders stood in the sale certificate. Another case, and the leading case on the point, is the case of Daodhoria v. Ganesh Chunder Sen 12 Bong. L.R. 317. This was a case of the head of the family purchasing property in his own name at an auction-sale. It was laid down that his purchase was for the entire-family and there is again no question of benami purchase.
9. I am of opinion that however sad may be the position of the plaintiff, owing to the fact that partition has been carried out in the family, I am unable to take the case out of the provision of Section 66, Civil P.C., and must hold, and do hold, that it is barred by that provision of law.
10. The result is that the appeal fails and is hereby dismissed with costs.
Ashworth, J.
11. I concur.