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Ramchandra Anant Naik Vs. Lakshman Sambarao Sadekar - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeals Nos. 189 and 190 of 1927
Judge
Reported in(1929)31BOMLR1271
AppellantRamchandra Anant Naik
RespondentLakshman Sambarao Sadekar
Excerpt:
civil procedure code (act v of 1908), sections 66, 65-decree-execution-sale-auttion-purchaser-sale by auction-purchaser after the sale but before confirmation of the sale-sale valid.;the title of the purchaser at a court sale is complete on the day of the auction sale, and the property vests in him immediately. an agreement to sell the property by the auction purchaser after the sale and before it is confirmed cannot be avoided under section 66 of the civil procedure code.;ramathai vadivelu mudaliar v. peria manicka mudaliar (1920) l.r. 47 i.a. 108 and venkatappa v. jalayya (1918) i.l.r. 42 mad 615, followed. - .....box.4. the learned subordinate judge held that the present suit was barred under section 66 of the civil procedure code. he came to the conclusion that literally speaking the purchase in question could not be said to have been made on behalf of the plaintiff, as the plaintiff did not admit in his plaint that the purchase was made on his behalf, that the suit was apparently to enforce specific performance of the agreement, but the apparent frame of the plaint was in the opinion of the learned subordinate judge a cloak to hide the real nature of the suit. the learned subordinate judge held that in substance the present suit was brought by the present plaintiff on the ground that the purchase was made on behalf of the plaintiff, and therefore that the suit was barred under section 66 of the.....
Judgment:

Patkar, J.

1. In this case the plaintiff sued for specific performance of the agreements to convey passed by the defendant in respect of two survey Nos., survey No. 121 in the village in Bijrukanchanally and survey No. 34 in the village of Nalawani.

2. It appears that the defendant borrowed Rs. 420 from the present plaintiff and purchased survey No. 121 at an auction sale. On September 20, 1922, Rs. 105 were borrowed from the plaintiff and one-fourth of the auction purchase money was paid on September 20, 1922, and on October 3, the defendant borrowed Rs. 315 from the plaintiff and passed a receipt, Exhibit 22, for the sum of Rs. 420, In respect of survey No. 34 the defendant borrowed Rs. 60 from the plaintiff on September 26, 1922, for payment of one-fourth of the purchase money, and on October 9, 1922, he borrowed Rs. 180 from the plaintiff and passed a receipt, Exhibit 14. The present plaintiff brought two suits for specific performance of the two agreements to sell contained in Exhibits 14 and 22.

3. The defendant did not appear though summons was served, on him, and the suits were ordered to be proceeded ex parte. On March 17, 1925, the defendant appeared through his pleader and applied for cancellation of the order for ex parte hearing. On April 6 again, defendant applied for time and though time was given him for filing the written statement, he did not put in his written statement nor did he appear in the witness box.

4. The learned Subordinate Judge held that the present suit was barred under Section 66 of the Civil Procedure Code. He came to the conclusion that literally speaking the purchase in question could not be said to have been made on behalf of the plaintiff, as the plaintiff did not admit in his plaint that the purchase was made on his behalf, that the suit was apparently to enforce specific performance of the agreement, but the apparent frame of the plaint was in the opinion of the learned Subordinate Judge a cloak to hide the real nature of the suit. The learned Subordinate Judge held that in substance the present suit was brought by the present plaintiff on the ground that the purchase was made on behalf of the plaintiff, and therefore that the suit was barred under Section 66 of the Civil Procedure Code.

5. The learned District Judge on appeal raised three issues: (1) Whether the documents Exhibits 14 and 22 require registration (2) Whether they are inadmissible in evidence because they have not been registered and (3) Whether the suit is barred by Section 66 of the Civil Procedure Code The learned District Judge held that the documents, Exhibits 14 and 22, did not require registration, and that they were not inadmissible in evidence for want of registration. It has not been argued before us on behalf of the respondent that that conclusion is erroneous. The learned District Judge, however, agreed with the learned Subordinate Judge in coming to the conclusion that the suit was barred under Section 66 of the Civil Procedure Code.

6. Section 66 of the Civil Procedure Code runs as follows:-

No suit shall be maintained against any person claiming title under a purchase certified by the Court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims.

7. The present suits are for specific performance of the agreements to sell passed by the defendant after he purchased the properties survey Nos. 121 and 34, on September 20 and 26, 1922, respectively. According to the decisions of the Privy Council in Mussumat Buhuns Kowur v. Lalla Buhooree Lall (1872) 14 M.I.A, 496; Lokhee Narain Roy Chowdhry v. Kalypuddo Bandopadhya and Ganga Sahai v. Kesri Section 66 must be construed very strictly and literally, and Section 66 does not make benami purchases illegal, but the object of the section is to create a check on the practice of the judgment-debtors in clandestinely purchasing by putting forward somebody else as the purchaser, and to enable the Court to place the ostensible purchaser in possession of what it had sold, and insure respect to that possession by enacting that any suit brought against him on the ground of benami shall be dismissed. It was held that Article 66 must be construed very strictly and not extended beyond its express terms, and that the section prohibited suits against a certified purchaser to assert a benami title against him, but did not make benami purchases illegal. The object of the stringent provisions of the section is to discourage benami sales but not to render such purchases illegal. The case of Kumara v. Srinivasa I.L.R. (1887) Mad. 213 does not apply to the facts of the present case. In that case the defendant acted benami in buying land at a Court sale for the plaintiff, paid part of the purchase money for the plaintiff, and allowed him to remain in possession on the understanding that the defendant was to transfer the property on payment of the balance of the purchase-money, but subsequently ejected the plaintiff who sued to recover possession and it was held that Section 317 of the old Code, corresponding to Section 66 of the present Civil Procedure Code, was no bar to the plaintiff's suit, In the Full Bench case of Venkatappa v. Jalayya I.L.R.(1918) Mad. 615 . and the Privy Council decision in Ramathai Vadivelu Mudaliar v. Peria Manicka Mudaliar it was held that Section 65, Sub-section (1), of the Civil Procedure Code, does not debar a plaintiff from maintaining a suit for specific performance against a certified purchaser at a sale in execution if the plaintiff's claim is based upon an agreement to convey the property made after the property was purchased including the case in which after the purchase it is agreed that the property shall be transferred in pursuance of an agreement made before it. The suit in such a case is not brought 'on the ground that the purchase was made on behalf of the plaintiff' within the above-mentioned sub-section. The learned pleader for the respondent relies on the passage in the judgment of the Privy Council at page 115 : 'The object of Section 66 was to put an end to purchases by one person in the name of another; and the distinction between a purchase on behalf of another, and a purchase coupled with an undertaking to convey to another at the price of purchase, is somewhat narrow.' But their Lordships of the Privy Council further laid down that (p. 115) 'whatever doubt might be caused by the character of the original agreement is removed by the events which happened after the sale.' There were subsequent agreements which were unaffected by the section and were accordingly enforceable against the appellant. In the case of Venkatappa v. Jalayya, where the defendant agreed that certain immovable property should be purchased in his name in Court auction and that one-half of it should be conveyed by him to the plaintiff after the sale certificate was obtained, and under an agreement subsequent to the purchase the defendant agreed to execute a registered conveyance, it was held by the Full Bench of the Madras High Court that a suit brought for specific performance of the latter agreement, was not barred under Section 66 of the Civil Procedure Code.

8. It is urged on behalf of the respondent that if the agreements in question had been passed by the defendant after the confirmation of the sale the suits would not have been barred under Section 66 of the Civil Procedure Code, but as the present agreements were passed soon after the auction sales which were not confirmed, the present suits would come within the prohibition contained in Section 66 of the Civil Procedure Code. Under Section 65 of the Civil Procedure Code, where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. The title, therefore, of the purchaser was complete on the date of the auction sale, and the property vested in him. And if after the date of the auction sale he passed an agreement to convey in favour of another person, the suit based upon such an agreement would not come within the purview of Section 68 of the Civil Procedure Code. The plaintiff was examined in this case and deposed that he did not intend to bid at the auction sale. The learned pleader on behalf of the respondent relied on certain statements in the plaint for the purpose of suggesting that the plaintiff's suit was based on the ground that the purchase was became. The allegations in the plaint are consistent with either theory. The plaintiff deposed on oath that he did not intend to bid. The defendant has not gone into the witness box to contradict the plaintiff. The auction sales were subsequently confirmed.

9. We think, therefore, that the present suits brought by the plaintiff are based upon the agreements to convey passed by the defendant after the title vested in him as the purchaser at the auction sale. The suits, in our opinion, do not come within the purview of Section 66 of the Civil Procedure Code. We think that the view taken by both the lower Courts is erroneous. We would, therefore, reverse the decrees of the lower Courts and pass a decree for specific performance in both the suits against the defendant. The plaintiff shall have his costs throughout. We direct the defendant to execute a conveyance of the two lands favour of the plaintiff purchased by him at the auction, and that the plaintiff should get possession of the property and mesne profits from the date of suit till recovery of possession. The mesne profits should be determined by the Subordinate Judge under Order XX, Rule 12.


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