1. The plaintiff is the son of the first defendant. A suit (No. 57 of 1865 on the file of the Subordinate Court of Tranquebar) was brought against the first defendant by the widow of his deceased son for her maintenance, and in execution of the decree which she obtained against the first defendant, lands forming part of items 15 and 16 in the plaint were brought to sale and purchased by the fifth defendant. The case for the plaintiff against the fifth defendant was that he purchased benami for the first defendant, who, as the manager of the family, improperly furnished the fifth defendant with the purchase money out of joint family funds. The District Judge has dismissed the suit as against the fifth defendant on the ground that the suit was prohibited by the Code of Civil Procedure, Section 317. The first part of that section which the District Judge relied upon enacted that 'no suit shall be maintained against the certified purchaser on the ground that the purchase was made on behalf of any other person, or on behalf of some one through whom such other person claims.'
2. In the case Bodh Singh Doodhooria v. Gunesh Chunder Sen 12 B.L.R. 317 to which we have been referred, it was pointed out by the Judicial Committee of the Privy Council that the section of the old Code of Civil Procedure which corresponds with Section 317 of the. present Code, was intended to check the practise of benami purchases in execution of decrees, and did not affect the rights of members of a joint Hindu family, who. by operation of law, and not by virtue of any private agreement or understanding, are entitled to treat as their common property an acquisition, however made, by a member of the family in his sole name, if made by the use of the family funds.
3. In the present case, the ostensible purchaser was not a member of the plaintiff's family, but much of the argument of the Judicial Committee applies. The object of the enactment is to discourage agreements for the purchase of property at a Court-sale in the name of another: This object is effected by prohibiting any suit for the purpose of enforcing such agreement against the certified purchaser. But the present suit has been brought against the fifth defendant by one who was no party to the agreement, and whose object is, not to enforce the agreement, but to set it aside as an illegal transaction made in fraud of his rights as a member of the family to whom the purchase money belonged. We are of opinion that it was not the intention of the 317th section to prohibit a suit of this kind. On this construction of the 317th section of the Code of Civil Procedure, we must set aside the decree of the District Court, and remand the appeal to that Court for adjudication on its merits.
4. The costs of this second appeal will abide and follow the result.