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Gaya Prasad and ors. Vs. Musammat Lareti Kuar and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1914All552; 25Ind.Cas.821
AppellantGaya Prasad and ors.
RespondentMusammat Lareti Kuar and ors.
Cases ReferredHazi Arjun Mullick v. Sheikh Farutullah
Excerpt:
civil procedure code (act v of 1908), section 66 - civil procedure code (act xiv of 1882), section 317--civil procedure code (act viii of 1859) section 260--benami purchaser--actual purchaser--defence--procedure. - - as has been well-established, no one has a vested right in a particular form of procedure. ' in my opinion the section was amended to include a case like this and to make it quite clear that the interpretation placed upon section 317 of act xiv of 1882 by the bombay high court was the right interpretation of that section......case is that the names of these persons were entered in the sale certificate benami that the real purchasers were the plaintiffs and not bhopal and jodhu. they have died and their heirs have sold the land to defendants nos. 1 to 3, who have begun to make certain constructions on the land. the present suit is for partition and for an injunction restraining defendants nos. 1 to 3 from building on the land. they have urged that the suit is barred by section 66 of the code of civil procedure, and that the plaintiffs cannot maintain this suit against them who are claiming title under a purchase certified by the court within the meaning of section 66 of the said code.3. the courts below have accepted the contention and have held that the plaintiffs cannot be permitted to maintain their.....
Judgment:

Sunder Lal, J.

1. This appeal arises out of a suit for partition brought by the plaintiffs against; among other persons, the heirs and assigns of Ram Kumar.

2. One Bhagirath was owner of 400 square yards of land. 100 square yards of land out of these were purchased in the name of Bhopal and Jodhu on the 20th January 1870. These persons were the tenants of the plaintiffs and the plaintiffs' case is that the names of these persons were entered in the sale certificate benami that the real purchasers were the plaintiffs and not Bhopal and Jodhu. They have died and their heirs have sold the land to defendants Nos. 1 to 3, who have begun to make certain constructions on the land. The present suit is for partition and for an injunction restraining defendants Nos. 1 to 3 from building on the land. They have urged that the suit is barred by Section 66 of the Code of Civil Procedure, and that the plaintiffs cannot maintain this suit against them who are claiming title under a purchase certified by the Court within the meaning of Section 66 of the said Code.

3. The Courts below have accepted the contention and have held that the plaintiffs cannot be permitted to maintain their suit against them on the ground that the real purchaser was a person other than the certified purchaser.

4. Two points have been argued by Mr., Sarat Chander Chaudhri on behalf of the appellants. The first is that the auction-purchase took place while Act VIII of 1859-was in force. Under Section 260 of that Act a suit against the certified purchaser is barred. That section runs: 'The certificate shall state the name of the person who at the time of the sale is declared to be the actual purchaser; and any suit brought against the certified purchaser on the ground that the purchase was made on behalf of an other person not the certified purchaser, though by agreement the name of the certified purchaser was used, shall be dismissed.' It is argued that this plea is open to the certified purchaser alone and is not available to his heirs and assigns.

5. There is no ruling of this or any other High Court, so far as I know, construing Section 260 of Act VIII of 1859 on these lines, but there, have been a number of cases under section, 317 of Act XIV of 1882 in which similar words occur holding that the wording of Section 317 protects only the certified purchaser and not any person claiming through him. These cases are Sibta Kunwar v. Bhagoli 21 A. 196 : A.W.N. (1899) 30; Dukhada Sundari Dasi v. Srimonto. Jardar 26 C. 950 : 3 C.W.N. 657; Nohori Dhur v. Sarup Chunder Dey 5 C.W.N. 341; Piramanayagam Pillai v. Alwar Naicker 18 M.L.J. 305; Muhammad Farough v. Abdul Hakim, 4 P.R. 1904 : 28 P.L.R. 1904.

6. On the strength of these rulings Mr. Sarat Chunder has argued that the same construction ought, to be put on Section 260 of Act VIII of 1859, as the language of the two. sections is practically identical in this respect. I may note that the Bombay High Court in Hart Govind Joshi v. Ramachandra Narayan Gole 31 B. 61 : 8 Bom. L.R. 873 has held that the plea is open to both the certified purchaser and persons deriving title through him.

7. Both Acts have now been repealed and their place has now been taken by Act V of 1908.

8. The first point for consideration is, whether a plea based on the provisions of a defunct Statute can be raised in bar now. Both these Acts have been repealed. They barred a suit by the real purchaser against the certified purchaser, but if the certified purchaser had himself to sue as plaintiff, they did not prevent the real purchaser from setting up and proving that he was the real purchaser. Lokhee Narain Roy v. Kalypuddo Bandopadhya 2 I.A. 154 : 23 W.R. 358; Jan Muhammad v. Ilahi Baksh 1 A. 290; Mu-sammatBuhunsKowurv. Lala Buhooree Lall 14 M.I.A. 496 : 18 W.R. 157 : 3 Sar.P.C.J. 69 : 10 B.L.R. 159 : 20 Eng. Rep. 871. It has also been held that where the certified purchaser did not defend the suit, or confessed judgment, the plea was not available to other defendants. Ramakrishnappa v. Adi-narayana 8 M. 511, Hazi Arjun Mullick v. Sheikh Farutullah 9 C.L.R. 295.

9. In other words, it was a special plea by way of defence available only to the auction-purchaser when he was a defendant to the suit and chose to avail himself of the plea. It was a plea in bar which such purchaser, when arrayed in the suit as a defendant, could use to exclude evidence of the fact that he was not a real purchaser. It was merely a rule* of procedure applicable to the trial of a certain class of suits in which the certified purchaser had a certain position in the array of parties. With the repeal of the Code of Civil Procedure which contained that provision, it is no longer available by way of defence. As has been well-established, no one has a vested right in a particular form of procedure. I think that the suit must be governed by the Code of Civil Procedure now in force.

10. The next question is, whether the Code now in force precludes the real purchaser from proving his title as against the heirs and assigns of the certified purchaser. In Section 66 of the new Code the rule is extended so as to protect any person claiming title under a purchase certified by the Court.' In my opinion the section was amended to include a case like this and to make it quite clear that the interpretation placed upon Section 317 of Act XIV of 1882 by the Bombay High Court was the right interpretation of that section. In that view of the law, the appeal fails and is dismissed with costs. I may note that this was the 'Only, point pressed in appeal.


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