1. Plaintiff brought this suit to obtain possession of a house with mesne profits from defendant No. 2 who was in possession of the house at the date of the suit.
2. The house belonged to one Valibai who was the absolute owner of it. She died in September 1919, and defendant No. 1, her daughter, was her only heir. It see ma that the house was kept in the possession of defendant No. 2 who was related to the deceased Valibai, as defendant No. 1 resided at Barhanpur.
3. Defendant No. 1 entered into a contract to sell the house to the plaintiff. The contract was made on November 15, 1923. A sale-deed was passed in pursuance of the contract on February 8 1924, and was registered according to law.
4. Defendant No. 1 admitted the sale to the plaintiff. Defendant No. 2 raised various contentions, set up an oral will made by Valibai in his favour subject to a condition of payment of Rs. 1,000 to defendant No. 1. He also set up two kararnamas in his favour, stated to have been passed by defendant No. 1, the last of which was alleged to have been executed on December 9, 1923, He also contended that plaintiff' was abenamidar for one Vallabhdas and that the suit was not maintainable unless Vallabhdas was joined as a plaintiff. Defendant also claimed compensation for the improvements which he had made to the house in suit alleging that both the plaintiff and Vallabhdas had notice of the improvements.
5. Defendant No. 2 failed on the contentions as to the oral will and the kararnamas, and the learned Counsel for defendant No. 2 very properly raised no contentions on the points of fact but raised two points of law. The first point taken by him was that the plaintiff after all was a benamidar for Vallabhdas and could not sue. If one refers to Section 82- of the Indian Trusts Act, there ought to be no objection to a suit instituted by a 'benamidar.' The question whether and in what circumstances a benamidar is competent to maintain a suit in his own name and without the beneficial owner being a party to the suit, has been discussed in a number of rulings by the various High Courts. In regard to the point, there had been at one time considerable conflict of authority. The earlier rulings on the point will be found collected in Woodroffe's Civil Procedure Code (vide the foot-note at page 516, second edition), The point is, however, set at rest by the decision of their Lordships of the Privy Council which is reported in Gur Narayan v. Sheolal Singh ILR (1918) Cal. 566,p.c. The decision of the Privy Council refers to an earlier decision of Bilas Kunwar v. Desraj Ranjit Singh , and the principle of law stated by their Lordships is to the following effect (p. 575):-
The bulk of judicial opinion is in favour of the proposition that in a proceeding by or against the benamidar, the person beneficially entitled is fully affected by the rules of res judicata.
6. The principle on which this conclusion was arrived at was that the benami system in India, under which property is acquired and held in names other than those of the real owner, has long been a common practice in this country and there is nothing inherently wrong in it. The High Court of Bombay had, as far back as 1897, held in two decisions, reported in Ravji v. Maha-dev ILR (1897) 22 Bom. 672 and Dagdu v. Balvant R. Natu ILR (1897) 22 Bom. 820, in favour of the view that a suit by a benamidar was maintainable and the same view has been held in recent decisions of our Court. (Vide, for instance, the decision in Nowroji Rustomji v. The Government of Bombay ILR (1925) 49 Bom. 700 27 Bom. L.R. 1140.
7. The second point that was raised was that inasmuch as the lower appellate Court found that defendant No. 2 had spent Rs. 1,000 on improvements, that amount should at any rate be allowed. Reference was made to Section 51 of the Transfer of Property Act. But it is clear from Section 51 that such a claim can only be made by a transferee who makes improvements believing in good faith that he was absolutely entitled to the property. The word ' transfer' is defined in the Act itself in Section 5, and defendant No. 2 cannot be said to be a transferee within the meaning of the term in 8. 51. Reliance was placed on the decision inHarilal Ranchhod v. Gordhan Keshav ILR (1927) 51 Bom. 1040 : 29 Bom. L.R. 1414, but that case is no authority in support of the contention raised by Mr. Oka on behalf of his client. In that case, the person who was allowed compensation for improvements was a transferee from a person who purported to act as the guardian of the plaintiff's in the case, and it was held that the transferee had spent money on improvements in good faith and under the belief that the transfer in his favourconveyed to him absolute title.
8. As a result, both the points raised by Mr. Oka must be disallowed. As to costs, I do not think that I should disturb the order of costs passed by the lower appellate Court. So far as this Court is concerned, though I dismiss the appeal, I think that the proper order in this case will be that each party should bear his own costs of this second appeal. Defendant No. 2 made improvements rather wrongly, but the benefit of the improvements will go to the present plaintiff. Defendant No. 1 is the last person to whom any costs should be allowed. Her conduct, as disclosed in the evidence, is indeed blameworthy. I, therefore, dismiss the appeal, confirm the decree of the lower appellate Court, but direct that each party should bear his or her own costs of this second appeal.