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The Delhi and London Bank Ltd. Vs. Chaudhri Partab Bhaskar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1899)ILR21All29
AppellantThe Delhi and London Bank Ltd.
RespondentChaudhri Partab Bhaskar and ors.
Excerpt:
act no. xix of 1873 (n.-w.p. land revenue act), section 184 - sale for arrears of government revenue--alleged benami purchase--suit on a mortgage against the debtor and the certified purchasers alleged to be benamidars of the debtor--civil procedure code, section 317. - - ill considered and hasty additions have been made, until the plaint is no longer a safe guide as to what the plaintiff's case really is. there is abundant evidence to show that the villages were good valuable property, well worth, if we may borrow a term in use in auction marts, the attention of purchasers. 11. it is contended by the plaintiff that this sale of the 24th december 1892 was illegally held and bad in law, because (i) there was in the government treasury at the time of sale and to the credit of chaudhri.....knox, j.1. in the suit which gave rise to this appeal the delhi and london bank, ld., plaintiff (now appellant), laid a claim against one chaudhri partab bhaskar alias chaudhri raj kumar, for the recovery of rs. 1,19,571-9-11, with interest, for an account of what sums might be due to them under a mortgage deed, dated the 17th december 1892, and, in default of payment of the sums found due, for sale of the properties covered by the aforesaid mortgage deed. the suit was instituted on the 27th day of june 1894.2. as the suit proceeded the plaintiff asked and obtained leave from time to time to add to the array of defendants (i) several persons who had purchased some of the villages covered by the deed on which the bank had based their claim; (ii) several other persons who claimed a prior.....
Judgment:

Knox, J.

1. In the suit which gave rise to this appeal the Delhi and London Bank, Ld., plaintiff (now appellant), laid a claim against one Chaudhri Partab Bhaskar alias Chaudhri Raj Kumar, for the recovery of Rs. 1,19,571-9-11, with interest, for an account of what sums might be due to them under a mortgage deed, dated the 17th December 1892, and, in default of payment of the sums found due, for sale of the properties covered by the aforesaid mortgage deed. The suit was instituted on the 27th day of June 1894.

2. As the suit proceeded the plaintiff asked and obtained leave from time to time to add to the array of defendants (i) several persons who had purchased some of the villages covered by the deed on which the Bank had based their claim; (ii) several other persons who claimed a prior mortgage over certain of the same villages, and (iii) other persons whom, they considered representatives of defendants who had died during the progress of the suit, until at last the total number of defendants arrayed on the record was twenty-five.

3. The plaint as originally framed was amended and added to more than once. Unfortunately these amendments and additions were so carelessly and inartistically carried out that even as it now stands the plaint abounds in errors which are creditable neither to the plaintiff nor to the Court which allowed the suit to proceed without taking care that so important a document as the plaint was free from all patent and obvious errors.

4. As an instance of such errors, the plaint says in paragraph 6 that 'defendant No. 7,' i.e., Tulshi Ram, for he is No. 7 on the array of defendants, ' purchased Ani Bojh.' Now it is not and never was any part of the plaintiff's case that the mahal Ani Bojh was purchased by Tulshi Ram. Indeed, in the same paragraph, only two lines lower down, the plaint goes on to say that the auction purchaser of Ani Bojh was defendant No. 8, i.e., the auction purchaser.' Even here in these nine words there is another error, for on consulting the array of the defendants it will be found that Mashuk Ali is not defendant No. 8, but defendant No. 9.

5. It is evident that those who were responsible for the plaint have grievously neglected the duty imposed upon them by law of preparing for the Court to consider and for the defendant to answer an accurate, plain and concise statement of the circumstances constituting the cause of action. Ill considered and hasty additions have been made, until the plaint is no longer a safe guide as to what the plaintiff's case really is.

6. While reading the array of parties it has to be noted that after the appeal had been filed in this Court, Chaudhri Partab Bhaskar alias Chaudhri Raj Kumar, the principal defendant, died, and the name of Musammat Indomati has now been inserted in place of her deceased husband as his legal representative.

7. The claim was not resisted in the Court below by Chaudhri Raj Kumar. In appeal no one appears to defend the appeal on the part of Musammat Indomati, his widow. The real litigant parties are the London and Delhi Bank, Ld., and the persons subsequently added to the array of defendants, who from time to time purchased or pretended to purchase portions of the property covered by the mortgage deed of the 17th of December 1892.

8. It will materially assist the understanding of the real points at issue if those matters are first set out, upon which the litigants are practically agreed, and to dispute which no attempt has been made in the very prolonged arguments which have been addressed to us.

9. The late Chaudhri Raj Kumar was the son of one Chaudhri Fateh Chand, the owner of a very large amount of landed property situate in the Farrukhabad and Mainpuri districts. He was a man of a very spendthrift nature, and we find that the Collector of Farrukhabad had, with the sanction of the Board of Revenue, advertised for sale, on the 22nd of December 1892, 46 mahals, in all of which the Government revenue was in arrears. There is abundant evidence to show that the villages were good valuable property, well worth, if we may borrow a term in use in auction marts, the attention of purchasers. Chaudhri Raj Kumar suffered the day fixed for sale to come on without apparent effort to avert the catastrophe beyond the negotiations with the Delhi and London Bank, which ended in the mortgage deed of the 17th of December 1892. The 22nd of December arrived, and of the 46 mahals, there 9tood advertised for sale 32 villages, in which the Government revenue still remained in arrears.

10. The Assistant Collector, specially appointed by the Collector under Section 172 of Act No. XIX of 1873 to hold the sale, one Misr Banarsi Das, after selling by auction 3 of the villages so advertised, namely, the mahals Shahpur, Atrauli and Salimpur, stayed his hand and did not proceed to the sale of the remaining villages on his sale sheet. His reason for abstaining from sale is set out in a proceeding which will be found at page 55 of the appellant's printed book No. 1. In this proceeding he begins by setting out that he found the total balance due from Chaudhri Raj Kumar, on the 22nd of December 1892, was Rs. 20,101. To recover this balance an auction sale was held. As by the sale of only 3 villages the whole of the money had been realized, as he thought, the remaining -villages had not been sold, and he reported his proceedings to the Collector for necessary orders. On this report reaching the Collector, that officer drew up a proceeding (see page 10 of appellant's printed book II), in which he pointed out that the procedure adopted by the Deputy Collector was in error, and ordered that the sale be continued on the 24th of December 1892; that all the villages and mahals which were not sold on the 22nd of December 1892, and the demand in respect whereof had not been paid, be sold on the 24th of December 1892. No further proclamation was issued, and the Deputy Collector proceeded to sell 27 villages out of 29 still remaining on his list for sale. The remaining two villages which he did not sell were left unsold because money had been paid in on account of the arrears due from those two particular mahals. Just at the same time, i.e., early on the morning of the 24th of December the plaintiffs, through their servants, paid over at Mainpuri to Babu Amar Singh, the attorney of Chaudhri Raj Kumar, the sum of Rs. 1,00,000, the consideration money for the mortgage deed upon which the suit is based, and had that same mortgage deed duly registered at the Mainpuri tahsil. This payment and registration preceded by a few hour9 in point of time the sale at Farrukhabad.

11. It is contended by the plaintiff that this sale of the 24th December 1892 was illegally held and bad in law, because (i) there was in the Government Treasury at the time of sale and to the credit of Chaudhri Raj Kumar, namely, on the 24th of December 1892, more than sufficient money to cover all arrears of Government revenue due on account of the villages under sale, and (ii) because no fresh proclamation or notice of sale had been given.

12. A further contention is that the purchasers at the so-called sale of the 24th December 1892 were really fictitious purchasers. They were all of them friends or underlings of Chaudhri Raj Kumar, and the learned Counsel promised to show that they purchased with the intention that the property purchased should still be Chaudhri Raj Kumar's and only revert to them if Chaudhri Raj Kumar failed to pay in the money which they promised on the 24th of December to pay as purchasers of the property sold.

13. Of the villages sold on the 24th of December, the following were villages mortgaged to the Delhi and London Bank in the deed of the 17th December 1892:

(1) Chandpura Chaudhri, (2) Ayubpur, (3) Jhusi Nagar, (4) Kishanpur, (5) Malikpur, (6) Hasanpur, (7) Raura, (8) Bhawani Sarai, (9) Aima-uz-zam,

(10) Jahangirpur, (11) Asafpur Patti, (12) Tikri and (13) Ani Bojh. At pages 12 et segq. are the lists of bids made at the auction sale, and from these we learn that-

1. Chandpura Chaudhri was sold to Muhammad Umar for Rs. 8.

2. Ayubpur was sold to Mashuk Ali for Rs. 1,025.

3. Jhusi Nagar was sold to Lalta Prasad for Behari Lal for Rs. 4,100.

4. Kishanpur was sold to Lalta Prasad for Behari Lal for Rs. 9,050.

5. Malikpur was sold to Lalta Prasad for Thakur Das for Rs. 4,025.

6. Hasanpur was sold to Mashuk Ali for Rs. 1,600.

7. Eaura was sold to Lalta Prasad for Behari Lal for Rs. 4,000.

8. Bhawani Sarai was sold to Kunwar Bahadur for Rs. 8,000.

9. Aima-uz-zarn was sold to Mashuk Ali for Rs. 4,050.

10. Jahaugirpur was sold to Muhammad Umar for Rs. 100.

11. Asafpur Patti was sold to Mashuk Ali for Rs. 3,780.

12. Tikri was sold to Earn Saran for Rs. 4,025, and

13. Ani Bojh was sold to Mashuk Ali for Rs. 2,450.

14. On perusing the history of the above villages after sale we find that the sale certificates of the mahals of Kishanpur, Malikpur, Raura and Jhusi Nagar were granted to Parsotam Rai Tantia Sahib; that he was informed on the 3rd of May 1893 that the sales had been confirmed by the Commissioner; and we also find that on the dates between the 8th and 10th of September 1893 he formally acknowledged having been put into possession of them.

15. In respondents ' book No. 1 at page 32 will be found a sale deed, dated the 15th of September 1893, by which Mashuk Ali purported to convey to Nawab Safia Jehan Begam the village of Hasanpur Partabpur together with other villages. By a separate deed of the same date Mashuk Ali conveyed to Nawab Syed Ali Hasan Khan the villages of Ayubpur, Aima-uz-zam, Asafpur Patti and Ani Bojh.

16. In respondents' book No. II, at page 3, will be found a deed of sale, dated 29th June 1894, under which Kunwar Bahadur conyeys the village of Bhawani Sarai with the village of Sarai Gujurmal to Tulsi Ram.

17. Chandpura Chaudhri, which was purchased by Muhammad Umar, was sold by him to Gauri Lal, since deceased. Gauri Lal's representative on the record is the respondent Kunj Behari Lal.

18. What the plaintiff seeks is that the mortgage deed of the 17th of December 1892 may be declared to have preference to all these transactions. According to him the sales of the 24th of December 1892 were illegal, because they were held without any fresh proclamation issued; or if they were, in spite of this defect, sales according to law, then he contends that the real purchaser at, all these sales was Chaudhri Raj Kumar, and the nominal purchasers were people who never intended to purchase in their own right, but who assisted him with loans of money on the security of the villages purchased. In either case the sales of the 24th and the subsequent transactions should be all held to in no way derogate from the mortgage deednn his (plaintiff's) favour and to have no higher status than that of subordination to it.

19. This is the contention in appeal. Before considering it, it will be necessary once more to pass in review the case as put by the plaintiff for the defendants to answer; in other words the case that on the pleadings-had to be tried by the Court below.

20. The plaint sets out that Chaudhri Raj Kumar has not up to the present paid anything towards the principal or interest due under the mortgage deed of the 17th of December 1892, and asks that a decree may be passed against him personally for such an amount as may be found due, and a further decree directing that on non-payment by him of the sum so found due on the account, the properties mortgaged in the deed may be sold, and the proceeds applied in liquidation of the sum due.

21. Two grounds are set out in the 7th paragraph of the plaint as the grounds upon which the sale of the 24th December should be set aside as being illegal and bad in law; the first being that prior to the sale and at the time thereof there was in the Government Treasury and in the hands of the Collector-more than sufficient money to cover all arrears of Government revenue due on account of those villages, and the Collector was entitled to, and ought to, have realized the arrears therefrom; the second being that as the sales were originally fixed for the 22nd of December 1892, and the officer conducting the sale on that date had postponed the sale, subsequent sale without proclamation or notice on the 24th of December 1892 was invalid.

22. In the 8th paragraph the plaintiff says that as he did not advance any money until after the sale had been postponed, he cannot be bound by any subsequent sale of which no proclamation was issued or notice given.

23. In the 9th paragraph it is alleged that the said properties were purchased at the sale of the 24th of December 1892, on behalf of the principal defendant, and any subsequent contract cannot affect the plaintiff's right. From this 9th paragraph has been developed the further case, viz., that the sales of the 24th of December 1892 were no sales at all, because the purchaser at one and all of them was the defaulter Chaudhri Raj Kumar, and not Muhammad Umar, Mashuk Ali, or any other of the persons who on that day were declared at the time of sale to be the actual purchasers.

24. Thus, then, the case in the plaint as it was tiled, which is that the sales of the 24th of December 1892 and all subsequent proceedings are tainted with illegality and convey no title, has been developed into a case that they were sales, not to the certified purchasers, but to Raj Kumar himself; that they are in fact benami transactions.

25. The paragraph 9 is all the foundation in the plaint for what has been argued before us, viz., that the evidence points distinctly to one of two conclusions, either that the persons who pretended to purchase at the sales held on the 24th of December were benamidars for Chaudhri Raj Kumar and purchased with the agreed intention that, though the benamidar was declared actual purchaser, he should re-convey the property to Chaudhri Raj Kumar as soon as Chaudhri Raj Kumar re-paid any money advanced by the benamidars, or that m the purchase money was to be advanced as a loan, the security for which was the particular mahal or mahals bid for by the pretending purchaser, Chaudhri Raj Kumar remaining throughout the de facto proprietor.

26. A third contention was raised that the evidence established that in some of the sales the money paid as purchase money was the money of Chaudhri Raj Kumar.

27. The first question then for determination is whether the sales of the several mahals held on the 24th of December 1892 were or were not illegal, either on the ground that there were in fact no arrears due from Chaudhri Raj Kumar on that date, or on the ground that they were held without a fresh proclamation issued.

28. The Subordinate Judge has held, and rightly, that in the ease of any irregularity in revenue sales application has to be made to the Commissioner of the Division, praying that the sale may be set aside. Applications were made by and on behalf of Chaudhri Raj Kumar to have the sales set aside, but such applications were rejected, and that order of rejection is final.

29. Section 178 of the North-Western Provinces Land Revenue Act, 1873, provides that every sale of land under the Act shall be reported by the Collector to the Commissioner. At any time within thirty days from the date of the sale application may be made under Section 179 to the Commissioner of the Division to set aside the sale on the ground of some material irregularity or mistake in publishing or conducting it. There is nothing in the Act which limits the right to present such an application to the parties to the decree only. The right is left open to any and every person, and this being so, it does not lie in the mouth of any person who can show that he has suffered or may suffer from the sale to contend that the section was not intended to and does not provide a means of obtaining the remedy provided and of getting the sale set aside.

30. The Commissioner of the Division is required by Section 180, on the expiration of thirty days from the date of the sale, where no application to set aside a sale has been made, or if such application has been made and rejected, to make an order confirming the sale, and every order so made is expressly declared by the law to be final.

31. A right is reserved under Section 181 for the institution of a suit in a civil Court for the purpose of setting aside a sale on the ground of fraud. These provisions, and a further provision in Section 241(i) of the same Act, which enacts that no civil Court shall exercise jurisdiction over claims to set aside a sale for arrears of revenue other than claims under Section 181, point irresistibly to the conclusion that the view taken by the Subordinate Judge, that the Commissioner's order of rejection is final, was the right and only conclusion.

32. There is, however, the attempt made to contend that the sales were no sales because there were no arrears of revenue existing for which they could be held.

33. This contention is hardly worth considering. It is based upon a false foundation of fact, and it ignores the principle upon which sales of land for arrears of Government revenue proceed. The Government to which the revenue is due does not keep a debtor and creditor account with each individual landholder, but keeps its account for each mahal separately with the proprietor or proprietors of that mahal. When a mahal is once advertised for sale on account of arrears of land revenue due on it at the time of the advertisement, the defaulter can release such mahal only by paying the arrear due on that particular mahal at some time before the day fixed for the sale, either to the person appointed under Section 147 to receive payment of the land revenue assessed on such mahal, or to the Collector of the district, or the Assistant Collector in charge of the sub-division of the district.

34. In the present case no such payment had been made by or on behalf of Chaudhri Raj Kumar to any of the three persons above mentioned on account of any one of the mahals which were sold on the 24th December 1892.

35. The Deputy Collector who conducted the sales on the 22nd of December has recorded, in a proceeding to be found at page 55 of the appellant's printed book No. (sic) I, the reasoning upon which he stayed sale and held that no arrears of land revenue were due. His conclusion that no arrears of land revenue were due is arrived at by crediting purchase money on account of the three villages sold on the 22nd of December, i.e., moneys payable in the future which might or might not be realized, and which would be in any case moneys paid not before but after the day appointed for sale, and other moneys not paid as required by Section 173 of the Act, but deposited in a civil Court. The proceeding shows most complete ignorance of the Land Revenue Act, 1873, and of the first principles of the land revenue system.

36. I hold that the sales of the 24th of December 1892 were good and valid sales, and that we have no jurisdiction to entertain or determine claims to set them aside which are based upon alleged irregularities or mistakes in publishing or conducting the sales.

37. The next plea that we have to determine is whether the sales of the 24th of December were in fact sales made to Chaudhri Raj Kumar and not to the persons who were at the sale certified to be the auction purchasers or who have since been entered as certified purchasers in the certificate granted by the Government under Section 184.

38. The first question in considering the plea is whether the law as it stands permits the Court to entertain the plea. Section 184 of the Land Revenue Act expressly states:--'The certificate shall state the name of the person declared at the time of the sale to be the actual purchaser, and any suit brought, whether in a civil or revenue Court, against the certified purchaser on the ground that the purchase was made on behalf of another person, mot the certified purchaser though by agreement the name of the certified purchaser was used, shall be dismissed with costs.'

39. To inquire therefore, as the appellant asks us to do, whether the purchases of the 24th of December 1892 were made on behalf of Chaudhri Raj Kumar would be, it appears to me, to evade the clear provisions of law. The appellant must go further and show us, before we can set aside the sales, that fraud has entered into them. This he has not done.

40. There is a long array of decisions which at first sight would appear to be in favour of the view that the operation of Section 317 * of the Code of Civil Procedure is confined to disputes between certified auction purchasers and persons who allege that such auction purchasers purchased on their behalf and are in reality fictitious purchasers.

41. It will be found, however, on examining them more closely, that the cases were one and all of them not cases against certified purchasers, but cases by certified purchasers, and therefore beyond the letter and scope of Section 817 of the Code of Civil Procedure.

42. The leading case is that of Mussumat Buhuns Kowur v. Buhooree Lall 14 Moo. I.A. 496. This was a suit brought by Lalla Buhooree Lall, the certified purchaser, against a mortgagee in possession for the redemption of the taluk and possession of it, alleging that the mortgage debt had been paid off by receipt of the profits, and if not, that he was ready to pay what might remain due. The defence was that the purchase was made by Lalla Buhoree Lall iu his own name and as a benami purohaser for one Brij Lall Opadhia and with his money, and that the attempt by Lalla Buhooree Lall to set up title in himself was a fraud. Their Lordships of the Privy Council had no hesitation in holding that this suit was not a suit within the words or scope of Section 260 * of the Code of Civil Procedure. Section 260 of Act No. VIII of 1859 is the corresponding section which has been replaced by Section 317 of Act No. XIV of 1882, but with more than one addition to its terms. These additions I need not consider at present. As Section 260 ran it was word for word identical with Section 184 of Act No. XIX of 1873 as it now stands, except that the latter section prohibits suite being brought, whether in the civil or in the revenue Courts, and the former simply said 'any suit brought shall he dismissed.'

43. It is well to look closely into what the Privy Council did lay down in their judgment, for it seems to me that a wider intention has been, in some of the following cases, attributed to their Lordships than was ever intended by them. Their Lordships first point out that the Legislature had not by any general measure declared benami transactions to be illegal in India, and that it therefore followed that those transactions must still be recognized and effect given to them by Courts, except so far as positive enactment stands in the way and directs a contrary course. Their Lordships next examined Section 260 of Act No. VIII of 1859, which was put forward as such a positive enactment. They pointed out that this enactment was clear and definite, and went on to say:--'There is nothing from which it can be inferred that more is meant than is expressed. It is confined to the suit brought against the certified purchaser and to a specific direction as to what should be done with that suit, namely, that ' it shall be dismissed with costs.' It will be observed that in this passage their Lordships do not lay down the person by whom the suit may be brought which is liable to dismissal. It has been contended, and the contention has been apparently approved, that their Lordships intended to confine the suit to one brought by the benamidar against the certified purchaser. But I can find no authority for such limitation. It is true that their Lordships went on to deal with the contention that there might be inferred from this section and other sections contiguous to it a general intention having for its object to prevent any inquiry between the purchaser de facto and the person for whom he is alleged to have purchased upon the question whether the purchase was benami or not, and that effect should be given to that general intention. This inference their Lordships refused to draw. But they had not before them for consideration any other contention such as arises in the case before us, and I am not prepared to hold that what they lay down in reference to the contention directly under their consideration would have been laid down with equal emphasis to any other contention that might have been raised. Further on their Lordships say that the object which the framers of the Code probably had in view was to prevent judgment-debtors becoming secret purchasers at the judicial sales of their property and to empower the Court selling under a decree to give effect to its own sale without contention on the ground of benami purchase by placing the ostensible purchaser in possession of what it had sold and insuring him in respect of that possession by enacting that 'any suit brought against him on the ground of benami shall be dismissed.' If this be taken to be the object, it seems to me that it applies with equal force to those who seek to raise a contention against the ostensible purchaser and to prevent the Courts giving possession to him because they claim to have a title derived from the judgment-debtor and which cannot be higher than that of the judgment-debtor. Their Lordships give the instance of cases where actual possession can be given of the things sold by the Court and where (they add) no difficulty arises, 'for there the certified purchaser having both the certificate and possession can hold the property by virtue of Clause 260 against any suit brought' (not any suit brought by the judgment-debtor alone) 'against him, and if that possession should be interfered with either by force or fraud on the part of any person, even a benami claimant, it no doubt ought, without inquiry as to the benami claim, to be restored.' Their Lordships were very emphatic that they were not justified in adopting a construction of Section 260 beyond what the language of the Code imports, when such a construction would, in effect, be to declare that to be unlawful which the Code itself has not declared to be so. What I gather from the above is that every case that may arise to which it is sought to apply Section 260 has to be carefully considered, and it is to be seen whether the case is one which falls within the expressed words of the section. If it does not, the section has no application. If it does, the section must be applied without any arriere pensee as to whether such a construction be one which might under certain circumstances encourage fraud.

44. Indeed to my mind the boundary line which separates a benami transaction from a fraud, though it may be abundantly real in some cases, in others dwindles down to a line so shadowy and unreal that it is impossible to say where the honest benami transaction, if there be such a transaction, ends and the fraud begins. While therefore I do not seek by the importation of extrinsic matter to expand the word 'any suit,' I am equally unprepared to import extrinsic matter which will limit or qualify the same words beyond those which are to be found in the section itself, and which limit the suit to a suit (1) brought against a certified purchaser, and (2) based upon the ground that the purchase was made on behalf of a person other than the certified purchaser. It seems to me that the moment an attempt is made to limit those words, at once we limit the power of the Court 'selling under a decree to give effect to its own sale without contention on the ground of benami purchase' and 'of insuring respect to that possession.' Is the suit before us against a certified purchaser and based upon this ground? It is a suit to enforce the mortgage covenant of the Bank as against Raj Kumar and assignees from Raj Kumar, i.e., certified purchasers; and on what ground? The only ground is stated in the ninth paragraph of the plaint, namely, that the said properties were purchased on behalf of Raj Kumar. The person who framed this paragraph might almost be said to have had before his eyes the fatal words of Section 184 and to have copied them verbatim.

45. I know that it was held by Stuart, C.J., and Brodhurst, J., in Sohun Lall v. Lala Gya Pershad N.-W. P. H.C. Rep. 1874, p. 265, that the provisions of Section 260 of Act No. VIII of 1859, which are very similar in terms, did not apply to a case in which a decree-holder brought a suit against the certified purchaser of property sold by a Civil Court, and that a suit based on the allegation that the certified purchaser had purchased the property benami for the judgment-debtor of the decree-holder would lie. The only reason given is that the Code had certainly not for its object the desire to confer a benefit on fraudulent benamidars. There was, moreover, a circumstance in that case which does not exist in the case before us, and that was the fact that the judgment-debtor, the benamidar, had retained possession of property which in equity ought to have been given up to the decree-holder and was in possession of it at the time when the suit was brought. It was doubtless this fact which caused Mr. Justice Brodhurst to stigmatize the action as that of a fraudulent benamidar and to import the element of fraud into the case.

46. Again in the case Kanizak Sukina v. Monohur Das I.L.R. 12 Cal. 204, Mitter and Macpherson, JJ., held that if a creditor of the real owner of a property brings a suit for declaration that it belongs to his debtor and not to the certified auction purchaser, such a suit would not be precluded by the provisions of Section 317. That section, they said, was intended to prevent fraud, and if it were to apply to a case like that stated instead of preventing fraud, it would promote fraud. The case which the learned Judges were considering and in which they uttered this pronouncement was a case by a certified purchaser to have his right declared as against his judgment-debtor and a third person, who were trying to resist his claim by a defence setting up the third person and not the judgment-debtor as the real owner. The suit was really one by, and not against, a certified purchaser, whose title was the purchase just made. It is true that as against the third person it proceeded upon an allegation that the third person's name had been used in the transaction as benamidar for her mother and that she had no right to the property in the suit. It was really a suit by a certified purchaser against a trespasser and is quite distinct from the present suit.

47. The case of Chundra Kaminy Debea v. Ram Ruttun Puttuck I.L.R. 12 Cal. 302, is also in reality a case by a certified auction purchaser against trespassers, a person who set up a title adverse to the title of the person whose property had been ostensibly sold and purchased, a person who sought to use Section 36 of Act No. XI of 1894 as a shield to cover her title. She may have been the certified purchaser at a previous sale, she was not the certified purchaser at the sale for the time being in question, and so far as the latter sale was concerned, was neither certified purchaser nor benamidar. Similar to this was the case of Tara Soonduree Debee v. Oojul Monee Dossee 14 W.R. 111.

48. All these suits were suits which could not be brought within the terms of Section 317, except by expanding the words of the section, and are therefore no guide in the case before us.

49. For these reasons I hold that the law does not allow us to entertain this plea, and that I ought not to go into the question whether the appellants can or cannot, on the evidence, now substantiate a case to the effect that the purchasers at any of the sales of the 24th of December 1892 were not the certified purchasers, but Chaudhri Raj Kumar, though, had I to do so, I should be prepared to show that in none of the sales has it, in my opinion, been established that the real purchaser was any person other than the certified purchaser. On this matter I am quite in accord with the conclusions drawn by my brother Banerji from his careful and exhaustive analysis of the evidence.

50. I would therefore dismiss this appeal with costs.

Banerji, J.

51. This appeal arises in a suit brought by the appellant, the Delhi and London Bank, Ld., for sale under a mortgage dated the 17th of December 1892, executed by one Chaudhri Partab Bhaskar alias Raj Kumar, who was the first defendant to the suit. He has died since the institution of this appeal, and is now represented by his widow. The amount secured by the mortgage is a lakh of rupees, and the property mortgaged consisted of the zamindari property of the mortgagor (whom I shall in this judgment designate by his commonly known name of Raj Kumar) in several villages. There is no controversy in this appeal between the mortgagor and the mortgagees, or in regard to the amount claimed as due upon the mortgage. The only question before us is whether the appellants are entitled to a decree for the sale of such of the mortgaged villages as are in the possession of the respondents other than the widow of Raj Kumar. Those villages were sold by auction on the 24th of December 1892 for arrears of land revenue due in respect thereof, and were purchased by the said respondents or their predecessors in title. Those respondents claim that under Section 167 of the North-Western Provinces Land Revenue Act, 1873, they have acquired the villages purchased by them free of all incumbrances, and that the plaintiff's mortgage is void as against them.

52. Their claim is resisted on behalf of the plaintiffs on two grounds. First, that the sale was illegal and void; and second, that the property was in reality purchased by the mortgagor Raj Kumar in the names of the different purchasers.

53. I propose to consider the questions thus raised in the order in which they were argued before us. The learned Counsel for the appellants first addressed us on the second of those questions, and urged that Raj Kumar was the de facto purchaser of the property; that the persons in whose names it was purchased were his benamidars, and that as he was the real purchaser and the respondents acquired their title, if any, from him, they could not defeat the plaintiffs' mortgage. This plea of benami purchase was distinctly raised in the 9th paragraph of the plaint as amended, and was traversed by all the defendants in their written statements.

54. It has been contended before us on behalf of only one of the respondents, namely, Tulshi Ram, that the plaintiffs are precluded by the provisions of Section 184 of Act No. XIX of 1873 from urging that the certified purchaser made the purchases on behalf of some other person, namely, the mortgagor Raj Kumar. It is noteworthy that this contention was not raised before us by the learned Counsel who appeared for the other respondents. In my opinion the contention is untenable.

55. Section 184 of Act No, XIX of 1873, so far as it bears on the present question, runs as follows:

Any suit brought, whether in a civil or revenue Court, against the certified purchaser on the ground that the purchase was made on behalf of another person not the certified purchaser, though by agreement the name of the certified purchaser was used, shall be dismissed with costs.' The above provisions are exactly the same as those of Section 260 of Act No. VIII of 1859 (the former Code of Civil Procedure), and are similar to the provisions of Section 317 of Act No. XIV of 1882 (the Code of Civil Procedure now in force), of Section 36 of Act No. XI of 1859 (the Revenue Sale Law for the Lower Provinces), and Section 21 of Act No. I of 1845 (the Revenue Sale Law--now repealed). The policy of all these sections is only to discourage benami purchases at auction sales, and it seems to me that the Legislature intended to give effect to that policy by forbidding the person who purchases property at auction in the name of another from bringing a suit against the ostensible purchaser for recovery of the property from him on the ground that he is not the real purchaser. Those sections do not declare a benami purchase to be illegal and absolutely void. This has been repeatedly held by their Lordships of the Privy Council.

In Mussamat Buhuns Kowur v. Lalla Buhooree Lall 14 Moo. I.A. 496, their Lordships observed:--'It is well known that benami purchases are common in India, and that effect is given to them by the Courts according to the real intention of the parties. The Legislature has not by any general measure declared such transactions to be illegal, and therefore they must still be recognised, and effect given to them by the Courts, except so far as positive enactment stands in the way and directs a contrary course.'With reference to the provisions of Section 260 of Act No. VIII of 1859, which, as I have said above, are exactly in the same terms as Section 184 of Act No. XIX of 1873, their Lordships said:--' The object which the framers of the Code probably had in view was to prevent judgment-debtors becoming secret purchasers at judicial sales of their property. 'They added:--' The Code had certainly not for its object the desire to confer a benefit on fraudulent benamidars. Its provisions must have been framed on grounds of public policy * * *. That policy, if it was meant to be carried to the extent of making such transactions unlawful, might have been so declared and enacted, but the Code stops short of such an enactment.'

56. A similar view was entertained in Bodh Sing Doodhooria v. Ganes Chunder Sen 19 W.R. C.R. 356, in which their Lordships, speaking of the provisions of the same section, remarked:--'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.' This opinion was adhered to by their Lordships in Lokhee Narain Roy Chowdhry v. Kalypuddo Bandopadhya 23 W.R. C.R. 358 : S.C. L.R. 2 I.A. 154. Upon the authority of their Lordships of the Privy Council, the highest authority on the subject, it must be held as settled that a benami purchase is not illegal; that such a purchase at an auction sale is not ab initio void; that the policy of the Legislature in enacting Section 260 of Act No. VIII of 1859 and similar sections is only to discourage benami purchases, especially by judgment-debtors; and that the Legislature intended to enforce that policy by forbidding the institution of suits by real purchasers against ostensible purchasers on the ground that the purchase made by the latter was on behalf of the former. Section 184 of Act No. XIX of 1873, like Section 260 of Act No. VIII of 1859 (which, as I have said above, is worded exactly in the same terms as Section 184), and like Section 317 of Act No. XlV of 1882, contemplates, in my opinion, a suit between the person claiming to be the real purchaser and the certified purchaser, and not a suit by a creditor of such person in which the creditor seeks to establish that the purchase was in reality made by his debtor, and that the certified purchaser is only the benamidar of the debtor. Even in regard to suits of the former description, the Privy Council has held in two of the cases cited above that if the certified purchaser is the plaintiff, his claim may be resisted on the ground that he is only a benami purchaser. In my judgment Section 184 of Act No. XIX of 1873 does not preclude a creditor of the beneficial owner from suing the certified purchaser on the allegation that his purchase was benami for the debtor, and that the latter is the real purchaser. If any Other construction were placed upon that section it would lead to the perpetration of fraud, and such surely could not have been the intention of the Legislature. The object of discouraging and checking benami purchases at auction sales by judgment-debtors is evidently to minimise the chance of the judgment-debtors being able to defraud their creditors. If therefore the creditor of a person who has purchased his own property at auction in the name of another with the intention of preventing that property being availed of by his creditors be debarred of the right of establishing the real nature of the purchase and showing that it was made on behalf of the debtor himself, the very object of the Legislature would be frustrated, and facilities would be afforded to the debtor for perpetrating the fraud which it was the intention of the Legislature to prevent. The case-law on the subject is entirely in support of this view. With reference to the provisions of Section 317 of the Code of Civil Procedure (Act No. XIV of 1882), it was held by my brother Aikman and myself in The Uncovcnanted Service Bank Ld. v. Abdul Bari I.L.R. 18 All. 461, that those provisions contemplate suits between the certified purchaser and the beneficial owner, and do not bar a creditor of the latter from asserting that the certified purchaser is not the beneficial owner. The same was the ruling of this Court in Sohun Lall v. Gya Pershad N.-W.P. H.C. Rep. 1874, p. 265, and in Puran Mal v. Ali Khan I.L.R. 1 All. 235, in regard to Section 260 of Act No. VIII of 1859. The High Court of Calcutta also held the same view in reference to Section 317 of Act No. XIV of 1882 in Kanizak Sukina v. Monohur Das I.L.R. 12 Cal. 204, and Subha Bibi v. Hara Lal Das I.L.R. 21 Cal. 519. The same Court held in Ameer-oon-nissa Beebee v. Binode Ram Sein 2 W.R. C.R. 29, with reference to the provisions of Section 21 of Act No. I of 1845 (the Revenue Sale Law--now repealed) that they were 'not intended to protect purchases made in the name of third parties from the operation of decrees against the person beneficially entitled to the purchased property.' In Chandra Kaminy Debea v. Ram Ruttun Pattuck I.L.R. 12 Cal. 302, that Court held, according to the head note, that 'the object of Section 36 of Act XI of 1859 is to prevent the true owner from disputing the title of his benamidar (certified purchaser), and not to preclude a third party from enforcing a claim against the true owner in respect of the benami property.' Wilson, J., in delivering the judgment of the Court, observed:--'It would be a departure from the principle on which these sections are framed, and would introduce, instead of checking fraud and dishonesty, if we were to construe the section as meaning that where a creditor of the real owner has to bring the property to sale, this sham title of the benamidar may be set up against the purchaser. That would be making this provision, which was intended to discourage fraud, an instrument of fraud.' These remarks have my full concurrence, and apply exactly to the case before us. We have not been referred to any ruling, nor am I aware of any, in which the provisions of Section 184 of Act No. XIX of 1873 were considered. But, as I have already said, that section is similar to Section 36 of Act No. XI of 1859 (the Revenue Sale Law for the Lower Provinces), and the principle and policy of all these sections are the same. I may add that our attention has not been drawn to any case, reported or unreported, in which a contrary view was held. Upon the provisions of the law itself and upon the authority of the case-law on the subject, I am of opinion that Section 184 of Act No. XIX of 1873 does not preclude the plaintiffs from showing that the respondents, or those from whom they derive their title, purchased the property in question benami for Raj Kumar.

[The judgment then went on to discuss the evidence as to whether the purchases in question were in fact made benamifor Raj Kumar, and, finding on this point against the plaintiff bank, thus concluded]:

The only question which now remains to be determined is that of the-validity of the auction sale hold on the 24th December 1892. That sale has been impeached in the argument before us on two grounds first, that upon the sale not being proceeded with on the 22nd December 1892, the sanction which was granted by the Board of Revenue for the sale of the villages lapsed, and a further sanction was necessary; and secondly, that a fresh proclamation of sale should have been issued, and as no proclamation was issued, a sale could not legally be held on the 24th. Neither of these grounds is, in my judgment, a tenable and valid ground for holding the sale to be ab initio void. The sanction which the Board of Revenue grants for the sale of the patti or mahal for arrears of land revenue remains in full force until the sale has taken place or the arrears have been paid up before sale, and the mere fact of a sale which has been duly ordered being for some reason postponed does not necessitate the obtaining of a fresh sanction. An alteration in the date on which a sale is to take place does not, under any provision of Act No. XIX of 1873, put an end to the sanction already granted.

57. As for the issue of a fresh proclamation of sale, it is not necessary to decide whether or not the law enjoins it. The omission to issue a proclamation was nothing more than an irregularity or a mistake in publishing the sale on the ground of which an application could be made to set aside the auction sale. There is nothing in the Act which limits the right of making such an application to the defaulter alone. In this particular case applications were made by Raj Kumar which were rejected. I am unable to hold that the non-issue of another proclamation of sale renders the sale a nullity.

58. For the above reasons I am of opinion that the Court below has rightly held that the plaintiffs are not entitled to enforce their mortgage against the property which was sold by auction on the 24th of December 1892, the purchasers of such property having acquired it free of all incumbrances.

59. I agree in dismissing the appeal with costs.

*[Section 317.--No suit shall be maintained against the certified purchaser on the ground

Bar to suit against pur- that the purchase was made on behalf of any other person,

chaser buying benami. or on beha11 of some one through whom such other person

claims.

Nothing in this section shall bar a suit to obtain a declaration that the name of the certified purchaser was inserted in the Certificate fraudulently or without the consent of the real purchaser.

*[Section 260.--When the party against whom a decree for the specific performance of a

contract, or for restitution of conjugal rights or for the perform-

Decree for specific per- ance of or abstention from any other particular act has been

formanee or restitution of made, has had an opportunity of obeying the decree or injunction

conjugal rights, and has wilfully failed to obey it, the decree may be enforced

by his imprisonment, or by the attachment of his property, or

by both.

When any attachment under this section has remained in force for one year, if the judgment-debtor has not obeyed the decre.e and the decree-holder has applied to have the attached property sold, the property may be sold; and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and may pay the balance, if any, to the judgment-debtor on his application.

If the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or if, at the end of one year from the data of the attachment, no application to have the property sold has been made and granted, the attachment shall cease to exist.]


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