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Achhaibar Dube Vs. Tapasi Dube and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1907)ILR29All557
AppellantAchhaibar Dube
RespondentTapasi Dube and ors.
Excerpt:
.....property was joint like the rest and must be considered in making the partition. suppose it were clearly proved that two partners had lent partnership money to a third person, obtained against him a pint decree, and in execution of that joint decree certain property was purchased at an auction sale by one of the decree-holders out of the partnership funds or by setting off the joint decree obtained by the partners......property of tapasi dube or as the joint property of himself and janki dube and the other co-sharers? (3) did the money recovered by the decree against babu janki prasad, in execution of which the property was sold, belong to tapasi dube and janki dube jointly or to any one of them separately, and if so, to whom? the court will take such evidence as the parties may offer, and on return of the findings ten days will be allowed for objections.
Judgment:

Richards, J.

1. The facts out of which this appeal arises are somewhat peculiar. Tapasi Dube and Janki Dube obtained a joint decree for sale of certain mortgaged property. It appears that one of the decree-holders, Tapasi Dube, obtained leave to bid at the sale and he became the auction purchaser at the price of Rs. 950, which was the exact amount of the decree, that is, debt, interest and costs. He had taken the most active, if not the entire, part in the litigation which resulted in the decree in favour of himself and his co-decree-holder. He was allowed by the Court to take credit as against the purchase money for the amount of the decree, and consequently no money whatever was paid. When he applied for execution prior to his obtaining leave to bid, the application was made on behalf of himself and Janki Dube his co-decree-holder. Although there is no clear finding, it would appear that no part of the decretal money was ever paid by Tapasi Dube to Janki Dube. According to the allegations in the plaint, after the purchase Janki Dube and his successors in title remained in joint possession of the purchased property. But there is no specific finding on this point. The plaintiff further alleged that at the time of the purchase by Tapasi Dube he and Janki Dube were members of a joint Hindu family. This was not perhaps alleged by the plaintiff in his plaint as clearly as it might have been, but the defendants in their written statement raised the issue, and the Court of first instance framed an issue, but did not decide the question. I think the Court executing the decree ought not to have granted leave to Tapasi Dube to bid in his own name without obtaining the consent of Janki Dube, or at least ought to have called upon the latter to show cause why Tapasi Dube should not have leave to bid in his own name. Furthermore, Tapasi Dube having purchased in his own name, the Court executing the decree ought to have made Tapasi Dube bring the purchase money into Court, where it should have remained until an adjustment was made between the decree-holders. I merely mention these matters, because, if they had been considered in time, the present litigation would probably never have arisen. The immediate cause of the present suit was proceedings by the defendants in the Revenue Court, in which they claimed partition against the plaintiff of certain property alleging that in this partition the property purchased for Rs. 950 should not be considered as joint property. The plaintiff objected and claimed that the purchased property was joint like the rest and must be considered in making the partition. The Revenue Court stayed the partition and the plaintiff had to bring the present suit. The main defence, and only the point argued here, is that Section 317 of the Code of Civil Procedure bars the plaintiff's claim. The Court of first instance held that Section 317 did not apply to the circumstances of the present case. The lower appellate Court relying upon the decision in Durga v. Bhagwan Das Weekly Notes, 1900, p. 190 reversed the finding of the first Court and dismissed the plaintiff's suit as being a suit which could not be maintained having regard to the provisions of Section 317. A number of cases have been cited, including the decision of the Privy Council on the corresponding section of Act VIII of 1859 in Bodh Singh Doodhooria v. Ganesh Chunder Sen (1873) 12 B.L.R., 817. As the facts of all the cases cited are different from those of the present case, I consider that I am at liberty to deal with the provisions of the section apart from authority. It seems to be the unanimous view of all the Courts that Section 317 and the corresponding section of the previous Act were enacted against what are known as benami purchases, that is, purchases made secretly by one person for another, the ostensible purchaser having no interest in the purchase and the real purchaser wishing for some reason that his name should not appear. I think that section was enacted to meet only this kind of transaction and to put an end to them by rendering impossible a suit by the real purchaser against the ostensible purchaser. To illustrate by an example. Suppose it were clearly proved that two partners had lent partnership money to a third person, obtained against him a pint decree, and in execution of that joint decree certain property was purchased at an auction sale by one of the decree-holders out of the partnership funds or by setting off the joint decree obtained by the partners. Section 317 could, I think, never operate to bar a suit brought by one of the partners for a declaration that the property purchased was partnership property. In such a case the plaintiff would not be merely setting up 'that the ostensible purchaser had purchased the property benami for him; but his case would be that the property purchased was partnership property by virtue of the partnership which existed between them altogether irrespective of the sale. Their Lordships of the Privy Council; in the case I have referred to above, in dealing with the corresponding section of Act No. VIII of 1859, at page 329 of the report, say as follows: 'Their Lordships will not inquire whether there is sufficient proof that Ram Soonder who purchased at an auction sale held a few days after the Act came into operation did obtain a certificate under the Act, or of its terms if he did obtain one; because, assuming him to have been the certified purchaser within the meaning of the Act, they are of opinion that the provisions of the section do not apply to such a case as the present. They were designed to check the practice of making what are known as benami purchases at execution sales, i.e., transactions in which A secretly purchases on his own account in the name of B. Their Lordships think that they cannot be taken to affect the rights of members of a joint Hindu family who, by the operation of law, and not by virtue of any private agreement or undertaking, are entitled to treat as part of their common property an acquisition, howsoever made, by a member of the family in his sole name, if made by the use of the family funds. Their Lordships, no doubt, were dealing with a case of a joint Hindu family and it has not yet been ascertained whether Tapasi Dube and Janki Dube were or were not members of a joint Hindu family. If they were, the present case would be on all fours in this respect with the case before the Privy Council. It seems to me, however, that the principle of the reasoning of their Lordships of the Privy Council goes somewhat further than the case of a joint Hindu family. For example the reasoning would apply with equal force to the case of a partnership under the circumstances I have supposed above. I think also, if the allegations of the plaintiff wore proved, that is to say, that the plaintiff being entitled to half of the debt and interest recovered against Babu Janki Prasad, the defendants purchased the property by means of setting oil the amount of the joint decree, and that the property so purchased from the date of the purchase up to the commencement of the proceeding for partition was treated as joint property, that the plaintiff would, notwithstanding the provisions of Section 317, be entitled to a declaration that the purchased property was under the circumstances joint property and must be treated as such in the partition proceedings. I refer the following issues the Court of first instance through the lower appellate Court for findings: (1) Were Tapasi Dube and Janki Dube at the date of the purchase of the property members of a joint Hindu family? (2) After the purchase by Tapasi Dube was the property now in dispute treated as the separate property of Tapasi Dube or as the joint property of himself and Janki Dube and the other co-sharers? (3) Did the money recovered by the decree against Babu Janki Prasad, in execution of which the property was sold, belong to Tapasi Dube and Janki Dube jointly or to any one of them separately, and if so, to whom? The Court will take such evidence as the parties may offer, and on return of the findings ten days will be allowed for objections.


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