1. It is the case for all parties that the land sued for originally was the jenm of Thekkedath Nair. Plaintiff's case is that it was demised to 1st defendant's tarwad in 1038 (1862-63) on a kanom of Rs. 65, that the jenm right was sold in 1883 in execution of a decree against the Thekkedath Nair and purchased by Raman Nambiyar, from whom it was purchased by plaintiff. Hence plaintiff sues to redeem the kanom and recover the land from 1st defendant and his tenant 2nd defendant.
2. First defendant denies that he holds under the kanom sued on, and alleges that prior to the purchase by Raman Nambiyar the jenm right of the Thekkedath Nair had been sold in execution of a certain decree against the jenmi and purchased by Sridevi Amma a female member of the tar wad of the Thekkedath Nair, reserving a kanom right of Rs. 325 in. favor of 1st defendant, which was subsequently renewed for Rs. 525. Sridevi Amma was made 3rd defendant and supported 1st defendant.
3. The Munsif found that the purchase by 3rd defendant was made in 3rd defendant's name with funds supplied by her tarwad in order to defraud the creditors of the tarwad. Plaintiff agreed to redeem, the kanom of Rs. 325 set up by 1st defendant, and the Munsif accordingly decreed for surrender of the plaint lands by defendants to plaintiff, on his paying 1st defendant the kanom amount Rs. 325, and that 1st and 3rd defendants should pay plaintiff's costs. 3rd defendant appealed to the District Court in Appeal No. 89 of 1890 and 1st defendant in Appeal No. 1.1.7 of 1890. 2nd defendant did not appeal.
4. The District Judge in Appeal No. 89 of 1890 concurrent in the finding of the Munsif as to the nature of the purchase by 3rd defendant, but held that the suit was barred by Section 317 of the Civil Procedure Code and accordingly passed a decree in that appeal reversing the decree of the Munsif and dismissing the suit, but without costs. In. Appeal No. 117 of 1.890 the District Judge for the same reasons as in Appeal No. 89 of 1890 reversed the original decree and dismissed the suit without costs. Both appellate decrees were passed on the same day.
5. In Second Appeal No. 479 of 1891, plaintiff appeals against the decree in Appeal No. 89 of 1890 making all three defendants respondents. 1st and 2nd defendants' names must be struck off the record as respondents, as they were no parties to the appeal, out of which this second appeal arises. Plaintiff has not appealed against the decree in Appeal No. 117 of 1890. The suit therefore stands dismissed without appeal against 1st defendant, and plaintiff cannot obtain the only relief he sought, viz., a decree for redemption, on payment of the kanom amount to 1st defendant. This seems sufficient to dispose of this second appeal; for even if we were of opinion that the District Judge was wrong in his view of the effect of Section 317 of the Civil Procedure Code we could not give plaintiff the decree he asked for. But it is urged that, 3rd defendant having been made a party at the instance of plaintiff, and plaintiff having asserted as against her that her purchase was made benami for the tarwad she therefore could not defeat plaintiff's title. Plaintiff was at least entitled as against her to a declaration to that effect. We doubt whether such a declaration could be made in this suit; but assuming for the sake of argument that it could, we think that Section 317 would clearly be a bar to plaintiff's obtaining it. Treated as a suit against 3rd defendant for a declaration that her purchase was made benami for her tarwad, the case comes exactly within the very words of the section. It is a suit 'against the certified purchaser on the ground that the purchase was made on behalf of another person' and the section says that such a suit shall not be maintained. We cannot agree with the decision in Kanizak Sukina v. Monohur Das I. L. R. 12 C. 204, which seems to us to contravene the clear moaning of the section. It is not in our opinion a sufficient reason for carrying out the express terms of the section, that to do so would be to allow a fraud to be perpetrated. The person in whose name a purchase has been made for the benefit of, and with the money of, another, of course commits a fraud in claiming the property as his own. Nevertheless the law says that a suit shall not be maintained against him on the ground that the purchase was benami and thus provides that his fraud shall prevail. The object of the section, we consider, was to put a stop to benami purchases at execution sales, and this object can only be carried out by enforcing it in all cases without regard to consequences. In any view, therefore, we think the second appeal must fail and we dismiss it with costs.
6. There is nothing in the memo of objections and we dismiss it with costs.