K.T. Koshi, C.J.
1. This Second Appeal is by the plaintiff. The suit out of which it arises was brought by him in his right as Court auction-purchaser of Survey Plot 233/4 (Kormancherri Purayidom) in Vayalar West Pakuthy, to compel defendant 1, a Court auction-purchaser of certain buildings standing on it, to remove them. Kormancherri Purayidom as well as the buildings thereon belonged originally to a marumakkaihayam Ezhava family of which defendants 2 to 5 were members.
Under a partition arrangement evidenced by Ext. E (27-6-1091) the said purayidom which formed the homestead of the family and the buildings with winch we are concerned here went to the share of the branch of defendants 2 to 5. oN the date of the partition, the plaintiff's father was the karnavan of the family. At the partition he took his share separately and bequeathed the same to his wife and children.
Under Ext. E, the remaining members of the family, that is, members other than the plaintiff's father and defendants 2 to 5, took their shares jointly. On the date of Ext. E the family was in rather involved circumstances and under it defendants 2 to 5 undertook to discharge the major portion of the common debts. The plaintiff was one of the creditors to whom the family owed money and the Court sale of Kormancherri purayidom look place pursuant to the decree (O. S. No. 803 of 1094) he obtained for the recovery of the debt due to him.
Several other creditors had also obtained decrees against defendants 2 to 5. One of such decrees namely, that passed in O. S. No. 342 of 1093 was purchased by defendant 1. As assignee-decree-holder, defendant 1 brought to sale the buildings standing on Konnancherri purayidom and himself purchased them. Ext. C, a copy of the delivery receipt, showed that he obtained possession of the buildings on 19-12-1105.
The plaintiff's purchase of the purayidom was subsequent, namely, on 16-6-1107. Ext. A, a copy of the delivery receipt, showed that possession of the same was made over to him on 21-7-1110. On the basis of the title and possession so obtained, well nigh eight years afterwards, to be exact, on 23-4-1118, the plaintiff brought the present suitto compel defendant 1 to remove the buildings purchased by him so that he (the plaintiff) might have vacant possession of the site. Defendants 2 to 5 were impleaded as defendants on the ground that they were in possession of the buildings under defendant 1.
2. Defendants 1 and 2 contested the suit and they filed separate written statements. Originally all the remaining defendants remained ex parte, but defendant 2 died while the suit was pending before the Court of the Munsiff (Sherthallai) and when notices were issued to defendants 3 and 4 that they were being brought on the record as the legal heirs of the deceased defendant, defendant 3 entered appearance andadopted the contentions defendant 2 had raised.
In his written statement defendant 1 admitted that he had purchased the buildings in question at the Court sale held in execution of the decree in O. S. No. 342 of 1093, which decree he had got the original decree-holder to transfer to him. He also admitted that he had passed theoriginal of Ext. C in token of having obtained possession, but according to him he never look possession of the buildings and defendants 2 to 5 continued to live there as before even after the sale and the passing of the delivery receipt.
He is a near relation of defendants 2 to 5and according to him the decree in O. S. No. 342of 1093 was purchased by him at the instance of those defendants with a view to salvage at least the family house for them. Though originally he found the necessary amount to purchase the decree, defendants 2 and 3 had afterwards made good the consideration money to him and as per the understanding both sides had in the matter from the beginning, his rights were surrendered to them and they were thus in possession of the buildings in their own right as owners.
On these grounds he contended that the plaintiff had no cause of action against him and that he was not even a necessary party to the suit. The contentions raised by defendant 2 more or less followed the same lines. According to the written statement filed by defendant 2, the execution sale in O. S. No. 803 of 1094 took place after all amounts due to the plaintiff were duly satisfied and the plaintiff was persuaded to pursue the execution to shield the property from other creditors.
The plaintiffs father was the uncle of defendants 2 and 3, and on account of that relationship defendants 2 to 5 had absolute confidence in the plaintiff and they therefore wanted the property to be purchased by him. The plaintiff was thus merely a nominal purchaser and defendants 2 to 5 remained the real owners. The delivery as per the original of Ext. A was also likewise a sham affair and notwithstanding the same, defendants & to 5 had remained in possession of the property throughout.
Defendant 2 further contended that some five years after the alleged delivery, in 1115 or thereabouts, the plaintiff and himself had some quarrel over matters connected with their temple and that consequent on that quarrel the plaintiff sought to take advantage of the sale certificate for the property standing in his name and beganto take steps to establish that he was the real owner. According to defendant 2, the plaintiff had therefore no title to, or any possession of the purayidom and his suit to compel the removal of the buildings was unsustainable.
3. The trial Court in a well-considered and well-reasoned judgment, after analysing the entire evidence on record and after a careful consideration of the circumstances and probabilities of the cases, unhesitatingly came to the conclusion that the defendants' case was true, that the plaintiff was only a nominal purchaser, that notwithstanding the sale and the alleged delivery defendants 2 to 5, as real owners, remained in possession as before and accordingly dismissed the plaintiff's suit with costs.
The appeal against the learned Munsiff's judgment and decree before the Alleppey District Court was equally unsuccessful. In an elaborate judgment the learned District Judge confirmed each and every finding of the Court of the first instance and dismissed the appeal, confirming that Court's judgment and decree. Hence this second appeal.
4. Mr. T. S. Krishnamoorthi Iyer appearing for the plaintiff-appellant strenuously contended before us that the concurrent decisions of the two lower Courts were wrong and that there was no reliable evidence to sustain the finding that the entire decree debt in O. S. No. 803 of 1094 was satisfied before the sale was held. It was contended that Exts. III and IV proved payment only of Rs. 273/- and Rs. 248/- respectively and that as there was further balance due under the decree, the sale must be taken to confer on the plaintiff a valid title to the property.
No doubt there is no documentary proof to establish the payment of the balance left over after the payments as per Exts. III and IV, but the lower Courts had specifically adverted to this aspect of the question and definitely found that regard being had to all the circumstances of the case, the evidence of defendant 3 that the entire decree debt was discharged before the last execution application in the case was filed had to be accepted as true.
Indeed the burden of the argument before the lower appellate Court would appear to have been on this aspect and that Court held that the trial Court was right in its conclusion that the sale was held after the entire decree was satisfied. In Second Appeal we cannot enter into a fresh examination of the points concluded by the concurrent findings of the two lower Courts, as those Courts have acted on good evidence and on the circumstances and probabilities of the case.
This is not a case of concurrent findings based on no legal evidence. Not only do the two ludgments before us preclude us from re-opening the findings recorded in them, but on listening to the arguments of counsel and perusing the records we feel also that had the lower Courts decided differently, those Courts would have been deciding the case wrongly. We are therefore left free to consider the main point argued before us on behalf of the appellant that regard being had to the provisions of the Code of Civil Procedure, it was not open to the defendants (2 to 5) to question in this litigation the plaintiff's title.
Though defendant 1 was not a party to O. S. No. 803 of 1094 and the proceedings in execution of the decree passed therein, he had disowned having any interests in the buildings concerned and even contended that he was not a necessary party to the litigation. The real contest therefore came from or on behalf of the original owners (defendants 2 to 5) and it is about them that the plaintiff contends that they cannot be heard to dispute the plaintiff's title.
5. In discussing the above arguments we have of course to proceed on the basis of the concurrent findings that the plaintiff is only the ostensible owner of the property and that he had permitted the real owners (defendants 2 to 5) to have or retain possession notwithstanding his passing the receipt to the Court Amin in token of having obtained possession. Mr. Krishnamoorthi Iyer conceded before us that the disability which according to him debarred the defendants from questioning the plaintiff's title did not arise from Section 66 of the present Code of Civil Procedure (Act 5 of 1908).
That section and its fore-runners in the Civil Procedure Code Acts of 1859 and 1882, namely, Section 260 of Act 8 of 1857 and Section 317 of Act 14 of 1882, have been the subject of various judicial pronouncements, particularly by the Judicial Committee of the Privy Council. So early as 1872, in Mt. Buhuns Kowur v. Lalla Buhooree Lall, 14 Moo Ind App 496 (PC) 'A), it was held
'that the fact of the plaintiffs title being certified as purchaser was not conclusive by Section 260 of that Act (Civil P. C, Act 8 of 1859), to debar the defendant who was in possession horn pleading, that he was the real purchaser, and that the purchase was made benamee for him by the certified purchaser (as benamee transactions arc not prohibited by Section 260, or per se illegal), so as to ascertain the title of the certified purchaser'.
'Section 260 is confined to a suit brought against a certified purchaser, and does not embrace a suit brought by him against a party in possession.'
While granting that Section 66 did not in terms prevent the defendants from questioning the plaintiff's title in the present suit, if we understood aright the learned counsel for the appellant, his position was that it should be inferred from the said section taken in conjunction with Section 65 and the provisions in Order 21, Rules 92, 94, 95, 96, etc., an intention on the part of the Legislature to prevent any enquiry between the execution purchaser and the person for whom he is alleged to have purchased upon the question whether the purchase has been benamee or not and that Courts are bound to give effect to that intention.
The identical argument was urged before the Judicial Committee in the case cited above and to repel the contention we do not have to travel beyond what their Lordships have said in the judgment Sir Montague Smith delivered on behalf of the Board. Before we come to that it may be pointed out that the rule of law their Lordships enunciated in that case was reiterated in two subsequent decisions of the Board, namely, Lokhee Narain v. Kalypuddo Bandopadhya, 2 Ind App 154(PC) (B) and Md. Abdul Jalil v. Mahomed Obaid Ullah Khan, 56 Ind App 330: (AIR 1929 PC 228; (C).
Certain observations of Sir John Wallis, who delivered the judgment of the Judicial Committee in the latter case, made about the true import of Section 66 and the effect of the earlier pronouncements of the Judicial Committee upon that section would appear to us to be helpful in meeting the appellant's argument that the defendants arc precluded from raising in this litigation the appellant's (the plaintiff's) title and before we go back to the case first cited, those observations may with advantage be quoted here:
'.......... .their Lordships think it desirablein the first place to refer to Mt. Buhuns Kowur v. Lalla Buhooree Lall (A), the decision of this Board on the corresponding section of the Code of 1859, which is the leading authority as to the scope of the section. It was hold in that case that the effect of the section was not to make these benami transactions illegal, but only to prohibit for reasons of public policy a suit against the certified purchaser on the grounds specified in the section; and in Lokhee Narain v. Kalypuddo Bandopadhya (B), it was expressly ruled by this Board, following that decision, that where the certified purchaser is a plaintiff, the real owner, if in possession, and if that possession has been honestly obtained is not precluded by the section from showing the real nature of the transaction.
Now it is dear under these rulings that, while the section protects the certified purchaser, so long as he retains the possession given him by the Court, from a suit by the true owner, if he allows the real purchaser 'being the true owner' to get possession, the section does not enable him to sue for possession, because possession has come into the hands of the true owner, who is entitled to it.'
6. In Mt. Buhuns Kowur v. Lalla Buhooree Lall (A), in construing the meaning of Section 260 of the Code of 1859 (present Section 66) Sir Montague Smith stated as follows :
'It is well known, that benamee 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.
The enactments relied on by the plaintiffs are found in a Code professing to deal, not with rights, but with remedies, and procedure to enforce rights. The preamble states the object of the Code to be 'to simplify the procedure of the Courts of Civil Judicature'. It is right to bear this object in mind in construing the sections on which the plaintiffs rely.
The only express enactment on the subject occurs in Section 260. That section, after directing that the certificate shall state the name of the person who is declared at the sale to he the actual purchaser, says this :
'And any suit brought against the certified purchaser on the ground that the purchase was made on behalf of another person, not the certified purchaser, though by agreement thename of the purchaser was used, shall be dismissed with costs.' This enactment is clear and definite; there is nothing from which it can be inferred, that more is meant than is expressed. It is confined to a suit brought against the certified purchaser, and to a specific direction as to what shall be done with that suit viz., that it shall he dismissed with costs. The present suit, which is the converse of that pointed at in the section, is not within the words or scope of it, and if dealt with in the manner directed, would, of course, come to a disastrous end.'
The judgment then proceeded to consider the argument that the implication of the said section and Section 259 (now Section 65) was to preclude always any enquiry between a certified purchaser and the person for whom he is alleged to have made the purchase as to in whom the real title vested and that portion of the judgment reads thus :
'It has, however, been contended, in support el the opinion of the majority of the Judges of the High Court, that there may be inferred from this section taken in connection with Section 259, and the sections relating to the manner of giving possession, 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 benamee or not, and that effect should be given to that general intention.
Their Lordships consider it would not be safe to make such an inference, except it arose upon very clear implication, and that it would be especially unsafe so to construe the Act as by inference to import into it prohibitory enactments, which would exclude an inquiry into the truth in any suit between the parties; when the express enactment is narrowed and confined to a specific direction as to what shall be done in a particular suit, which is described and defined in precise terms.
And it appears to their Lordships, that effect can reasonably be given to the provisions of the Code without making such implication. Section 259, requiring the Court to grant a certificate if the person declared to be the purchaser of land at the sale, and directing that such certificate shall be taken and deemed to he a valid transfer of the debtors right and interest, does no more than create statutory evidence of the transfer, in place of the old mode of transfer by Bill of Sale.
Their Lordships consider that no inference fairly 'rises from this clause, that it was intended to interfere with bennmee transactions; for the language is adopted to meet the case of ordinary purchasers, and the same language might well have been used if benamee transactions had been wholly unknown.
The same observations apply to Sections 281 to 366 which prescribe modes of giving possession of the various kinds of property. These provisions would naturally find a place in the Act in order to govern ordinary purchases, and no inference can, therefore, be drawn from them of an intention to prohibit benamee transactions.
It is evident from this an lysis of the sections of the Code, that the inference sought to be madeagainst benamee transactions rests entirely on the 260th clause, and that, if this clause were absent from the Code, there is absolutely nothing in the other sections from which such an inference could be drawn.
It is strongly pressed upon their Lordships that as, by the express terms of the 200th section, a suit brought against a purchaser on the ground, that the purchase was benamee must he dismissed, that it would, in many cases lead to inconsistency, if that ground could be set up as a defence against a suit brought by a benameedar.
If this really were so, it would result from the attempt to deal with the subject of benamee in a partial manner, and even in that case their Lordships would consider it fitting that the Legislature should declare its view, and supply a remedy rather than that the Courts should strain the existing Act. But it will probably be found, that the suggested inconsistencies will not be great, and even if the Respondents' view were adopted, they would not be wholly avoided.'
Their Lordships then proceeded to point out that the inconsistencies that were said to arise from the view they proposed to take were more imaginary than real and in embarking upon that discussion the following preliminary observations are seen made :
'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 benamee purchase, by placing the ostensible purchaser in possession of what it had sold, and of insuring respect to that possession by enacting that any suit brought against him on the ground of benamee shall be dismissed.''
Different modes of delivery of possession contemplated by the Code are then discussed and then comes the part of the judgment which is most relevant for our present purpose and that part is as follows :
'But difficulties would also arise from giving a wide construction to the Code, beyond the ordinary meaning of the words. It was declared by the High Court, in conformity with former decisions, that where the real owner has been permitted to have or retain possession by the ostensible purchaser, the latter cannot insist on his certified title to recover.
Now, if the Code is to be read as wholly prohibitory of benamee judicial purchases, thus rendering them illegal, the defence in such cases ought to be disallowed; for if allowed to be set up, then effect must necessarily be given to that which, upon the hypothesis, is prohibited and illegal. The mere permission to hold possession cannot alone give or transfer a title from the Benameedar to real owner. The title must depend upon the purchase having been made benamee, and if that be unlawful, then it ought not to be allowed to prevail in the cases in which the High Court agree that it should do so.
The authorities, therefore, which have held that, in the cases just referred to, the real ownermay set up his benamee right against the Benameedar, necessarily involve the opinion, that the Code has not made benamee purchases unlawful; and if that is so, there seems to he no sufficient reason for giving the provisions of the Code, in cases like the present, a larger operation than the language imports.
The High Court, in their judgment in this case, approve of the above authorities; but they say they may be explained on the ground that the Benameedar has, by consenting to the possession of real owner, waived his right to the benefit given to him by the Code; but the Code bad certainly not for its object the desire to confer a benefit on fraudulent Benameedars.
Its provisions must have been framed on grounds of public policy, to which the doctrine of waiver is not properly applicable. 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. Their Lordships consider, that where the Legislature has stopped, the Courts must stop.
It was said that the certified purchaser in a case like the present, would have the shadow only, and not the substance of the thing he brought, but this is exactly what in equity and good conscience he ought to have, if no positive law intervened. The question is, whether such positive law does intervene in this case.
For the reasons given, their Lordships do not feel justified in adopting a construction 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; and they are consequently of opinion, that there is no bar to preclude the enquiry in this suit, into the real title.'
At this stage it is proper to point cut that in the cases so far cited the persons who claimed to be the real purchasers were not the judgment-debtors in the prior decrees pursuant to which the execution sales were held, but the portion of the judgment in Mt. Buhuns Kowur v. Lalla Buhooree Lall (A), last quoted would appear to us to cover such cases, if it is not solely confined to them. A few Indian decisions where the judgment-debtors in execution of decrees against whom sales took place were themselves allowed to contend in subsequent suits by the purchaser for profits, or possession may now be referred to.
7. In Ghazi-ud-Din v. Bishan Dial, ILR 27 All 443 (D), Sir John Stanley, C. J. and Sir William Burkitt, J. held that Section 317 of the Code of Civil Procedure (1882) did not debar a person in possession of property purchased at auction sale held in execution of a decree, when sued for the rents and profits of such property by the certified purchaser, from setting up as a defence to the suit that the certified purchaser was only a benamidar on his behalf.
There the appellant Gazi-ud-din was the defendant to the suit and he alleged that he purchased the property which was the subject matter of the suit at an auction sale held in execution of a decree, which had been obtained againsthim and that the purchase was carried out in the name of the plaintiff (respondent), Bishan Dial as a benamidar for him. Ghazi-ud-din was in possession on the date of the auction purchase and he continued in possession at the time of the suit giving rise to the appeal before the High Court and even at the time of the heaving of the appeal.
An earlier suit by him against Bishan Dial for a declaration that the latter was only a benami purchaser was ultimately dismissed by the High Court on the ground that the suit was hit by Section 317 and the subsequent suit was by Bishan Dial for rents and profits and the trial Court as also the first Appellate Court dismissed the suit Oil the ground that the suit was barred by res judicata.
The Nigh Court held that the prior suit was dismissed as not maintainable by reason of Section 317, that the merits of the case had not been gone into and that there was therefore no bar of res judicata at all. In remanding the case to the Court of first instance for trial on the merits, the learned Judges pointed out that Section 317 merely directed that a suit against a certified purchaser shall not be maintained and they went on to say:
'It does not go on to provide that a suit by a, certified purchaser against a person in possession for rents and profits, or for possession of the property of which he has been recorded as the certified purchaser cannot be resisted on the ground that the certified purchaser is only a benamidar,'
8. In Haji Mohammed v. Nur Fatma Begusa, AIR 1938 All 391 (E), some of the heirs of the original owner for whose debts certain properties were sold were allowed to claim their share from a donee of the certified purchaser. The decision was made negativing the contention that the legal heirs of the owner were precluded from questioning the title of the certified purchaser or of that puchaser's alienee or donee.
There the a action-purchaser was none other than the wife of the owner and the Courts found that the claim of the donee that since the execution sale his donor and after her he had possession was untrue and that notwithstanding the Court sale the owner continued to be in possession until his death and that the subsequent possession of the purchaser and afterwards that of the donee was found to be for and on behalf of all the heirs of the original owner. The donee was himself a heir of the owner and of the donor as he had married their daughter who was then no more, The relevant portion of the head-note to that case may usefully be quoted here and it reads :
'Where the certified purchaser is a plaintiff, the real owner, if in possession and if that possession has been honestly obtained, is not precluded by Section 66 from showing the real nature of the transaction. While Section 66 protects the certified purchaser, so long as he retains the possession given him by the Court, from a suit by the true owner, if he allows the real purchaser 'being the true owner' to get possession, the section does not enable him to sue for possession, because possession has come into the hands of the true owner, who is entitled to it.'
9. In Jamuna Prasad v. Bulaki Lal, AIR 1945 Pat 390 (F), Fazl Ali, C. J. and Sinha, J.held that in a suit by a purchaser, the judgment-debtor who is in possession, is not precluded from asserting that the purchaser was really his benamidar. It is needless here to set out the facts of the ease, but we desire to emphasise that it was the very person whose property was sold in execution that was allowed to contend in the later suit that the purchaser was his benamidar.
10. In a later Patna case, namely, Sheoshankar Prasad v. Mahabir Prasad, AIR 1948 Pat 350 (G), the real owner was allowed to recover the sale consideration from the certified purchaser, who at the instance of the former sold the subject matter of the purchase to a third party and failed to pay the consideration to the real owner as promised. In that case Monohar Lall, J., who delivered the judgment of the Division Bench consisting of himself and Ramaswami, J. reviewed the entire case-law bearing on the subject and ultimately enunciated five propositions of which (1) and (3) alone are relevant for our purpose. Proposition (1) reads :
'Section 66 must be construed strictly as it encroaches upon the rights of the true owner remembering that benami transactions are only being discouraged by the legislature but are not being made illegal.'
Proposition (3) reads :
'The real owner, if he is in possession, can always resist a suit by the certified auction-purchaser as a plaintiff.'
11. In the light of the foregoing discussion and the authorities cited we have no hesitation to hold that the contention urged on behalf of the plaintiff-appellant that the defendants arc precluded from raising the question of the plaintiff's title in this litigation is thoroughly unsustainable. The point was not taken in either Court below, but as it is a pure question of law we allowed it to be raised before us and have chosen to discuss the matter at some length.
12. Mr. Krishnamoorthi Iyer pointed out to us that no suit was brought to recover possession of the property though the result of our confirming the decisions of the lower Courts will be to disentitle his client forever from claiming the property and that as the question of possession of the property came up for consideration in this case only incidentally, the appellant should be allowed to amend the plaint with a view to include a claim for possession so that there can be a straight fight on the question.
We are afraid it is too late in the day to claim such an indulgence. The suit was pending before the trial Court for 8 years and before the District Court for 2 years. It is now more than 3 years since this Second Appeal was filed and it is only during the course of the arguments before us that this idea occurred to the appellant for the first time. One of the issues raised in the suit (issue No. 5) and dealt with by the Courts below is in those terms :
'Whether the plaintiff purchased Kormancherry purayidom in Court auction in O. S. No. 803 of 1094 in his name benami for defendants 2 onwards? Has he any right to that property?'
At least when this issue was raised the plaintiff should have been alive to the consequences of anadverse decision and moved for necessary amendments to the plaint then and there. We cannot listen to this belated prayer at this stage.
13. A further argument raised by Mr. Krishnamoorthi Iyer was that in non-suiting the plaintiff, defendants 2 to 5 were being allowed to take advantage of their fraudulent conduct in concealing the property in his (the plaintiffs; name. There is no evidence that the fraud succeeded either in part or wholly. Besides, what is the position of the plaintiff?
He is equally a party to that fraudulent conduct and to borrow the language Sir Montague Smith used in Mt. Buhuns Kowur v. Lalla Buhooree Lall (A), what is attempted by the plaintiff here is to invoke the aid of the Court to give effect against equity and good conscience to a claim founded upon fraud. As stated in that judgment it would be wrong on the part of the Courts to render assistance in such a case to the fraudulent plaintiff against the defrauded defendants. No Court would render active assistance to a plaintiff to obtain any relief when it is found that his attempt is to benefit himself by a fraudulent transaction.
14. There remains for us to consider only the question of costs. Both the lower Courts have made the plaintiff answerable for the defendants' costs. We would however, as the learned Judges in Sbeoshankar Prasad v. Mahabir Prasad (G), did, to mark our sense of disapprobation of the benami purchase which has led to this litigation, disallow costs throughout to either side and it is ordered that parties will bear their own costs in all the three Courts.
15. Except for the modification regarding the costs in the Courts below, the Second Appeal will stand dismissed.
16. Order accordingly.