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Muthukumaru Maniakarar and anr. Vs. Pethia Maniakarar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1942Mad154; (1941)2MLJ717
AppellantMuthukumaru Maniakarar and anr.
RespondentPethia Maniakarar
Cases ReferredBalaram v. Naktu
Excerpt:
- - 496 :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 sale was held under the provisions of the central provinces land revenue act (xviii of 1881). on a reference to the provisions of that act, it will be seen that section 109 distinctly provides that where immoveable property is sold- under that act, the rules prescribed in sections 287, 288, 293 and 306 to 316 of civil procedure code, 1882 corresponding to order 21, rr......the question for decision in this appeal is whether the plaintiffs are precluded by section 66, civil procedure code, from praying for a declaration that the fourth defendant has no right to item 1 of the property in the schedule to the plaint in the suit out of which this appeal arises. the relevant facts are few and may be briefly stated. the defendants 1 and 2 executed a deed of mortgage dated the 18th july, 1924, in favour of the plaintiffs' undivided father, one ramasami maniagarar. five items of property were mortgaged thereunder and they are items 1 to 5 of the schedule to the plaint. item 1 was brought to sale in execution of a decree for arrears of rent by the revenue court and purchased by the fourth defendant on the 4th july, 1934. the present suit has been filed by the.....
Judgment:

Venkataramana Rao, J.

1. The question for decision in this appeal is whether the plaintiffs are precluded by Section 66, Civil Procedure Code, from praying for a declaration that the fourth defendant has no right to item 1 of the property in the schedule to the plaint in the suit out of which this appeal arises. The relevant facts are few and may be briefly stated. The defendants 1 and 2 executed a deed of mortgage dated the 18th July, 1924, in favour of the plaintiffs' undivided father, one Ramasami Maniagarar. Five items of property were mortgaged thereunder and they are items 1 to 5 of the schedule to the plaint. Item 1 was brought to sale in execution of a decree for arrears of rent by the revenue Court and purchased by the fourth defendant on the 4th July, 1934. The present suit has been filed by the plaintiffs, sons of the said Ramasami Maniagarar, to recover a sum of Rs. 150 as being the balance due under the said mortgage. In the plaint they allege that item 1 though purchased by the fourth defendant, was really for their (plaintiffs') benefit, that at the time of the purchase the fourth defendant was acting as kariasthan or manager of their property, that the property was purchased with their funds for a sum of Rs. 300, that ever since the date of the purchase they have been in possession of the property and enjoying the profits thereof and paying kist on the same, that they have given credit in the suit for the value of the said item and only prayed for a decree for the balance and that since the fourth defendant is setting up title thereto they have impleaded him and prayed for a declaration in regard to that item and for a sale of the remaining items of the hypotheca, namely, items 2 to 5 of the plaint schedule. The fourth defendant denied that the purchase was on their behalf but asserted it was only for his benefit and that in any event under Section 66, Civil Procedure Code, the plaintiffs are not entitled to the declaration prayed for. So far as the mortgage was concerned, there is no defence by defendants 1 to 3 and there was a decree as prayed for. But the learned District Munsif dismissed the suit against the fourth defendant on the ground that Section 66 precludes the plaintiffs from asking for a declaration of right in respect of item 1. On appeal, the learned Subordinate Judge confirmed his judgment taking the same view. The question therefore is whether this view is tenable.

2. Two contentions were raised by Mr. Thiagaraja Aiyar on behalf of the plaintiffs: (1) The property having been purchased in a sale in execution of a rent decree, Section 66 Civil Procedure Code, is not applicable and it would not prevent the plaintiffs from pleading that the purchase was for their benefit. (2) Assuming that Section 66 applied, the fourth defendant having been the kariasthan for the plaintiffs who were on the date of the purchase, and are still minors, with their funds, under the second clause of that section, the purchase must be deemed to have been made fraudulently or without their consent and therefore they are entitled to the declaration prayed for.

3. I shall now deal with the first contention, namely, the applicability of Section 66 to sales in execution of decrees for rent by a revenue Court. Section 66 (1) runs thus:

No suit shall be maintained against any person claiming title under a purchase certified by the Court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims.

4. The section deals with a purchase certified by the Court in . such manner as may be prescribed. 'Prescribed' has been defined in the Civil Procedure Code, as 'prescribed by the rules'. 'Rules' are defined as meaning 'rules and forms contained in the first schedule or made under Section 122 or Section 125, Civil Procedure Code'. Prima facie, therefore, the section only applies to purchases made and sale certificates issued under the rules contained in the first schedule of the Civil Procedure Code, which make provision for sales in execution of decrees and issue of sale certificates for purchases made at those sales. As pointed out by Sulaiman, C.J., in Bishan Dayal v. Kesho Prasad I.L.R. (1937) All. 113 :

A person who is not claiming title under a purchase certified by the Court under any of the rules framed under the Code would not be protected under Section 66 of the Civil Procedure Code.

The section has been construed strictly and their Lordships of the Judicial Committee very early indicated the policy underlying the said section in construing a corresponding provision (S.260) in Act VIII of 1859 (M. Buhuns Kowur v. L.B. Lall) (1872) 14 M.I.A. 496 :

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 only express enactment on the subject occurs in Section 260.

* * * *

This enactment is clear and definite ; there is nothing from which it can be inferred, that more is meant than is expressed.

(The italics are mine).

5. The question therefore is whether the purchase by the fourth defendant can be said to be one certified by the Court under any of the rules framed under the Civil Procedure Code. If it is not, the section will not apply.

6. The provisions which are applicable to sale of property in execution of decrees passed by a revenue Court for rent are to be found in Chapter VI of the Madras Estates Land Act because it is admitted that the decree was passed by a revenue Court under the provisions of that Act. Section 132 of the Act provides that the provisions of the said Chapter shall be applicable as far as may be, to the execution by a revenue Court of any decree for arrears of rent and Sections 111 to 131 deal with the procedure for sale of holdings. Section 124 provides for the issue of a sale certificate. Section 124 (2) provides that on the expiration of 45 days from the date of sale as specified in the notification under Sub-section 3 of Section 123, the Collector shall grant a certificate of sale to the purchaser if no application has been made to set aside the sale under Section 131 of the Act. Therefore, the sale certificate in the present case must be deemed to have been issued under the provisions of that section. Thus it is clear that the procedure followed in a sale in execution of a decree for arrears of rent is that provided by the said Act and the sale certificate is issued under that Act and prima facie, therefore in this case neither the sale was made nor the certificate issued under the rules in the first schedule of the Civil Procedure Code. Therefore Section 66 would have no application to the sale in question.

7. But the view taken by both the lower Courts and which is pressed before me by the learned Counsel for the respondent is that under Section 192 of the Madras Estates Land Act Section 66 must be deemed to have been made applicable to such sales and therefore that section operates as a bar to the plaintiffs getting the relief they claim. The material portions in Section 192 are as follows:

(1) the (Provincial Government) may from time to time make rules consistent with this Act declaring that any provisions of the Code of Civil Procedure, 1908, shall not apply to suits, applications, appeals, or other proceedings under this Act in any Civil or Revenue Court or to any specified classes of such suits, applications, appeals or proceedings...or shall apply to them subject to modifications, and additions specified in the rules.

(2) Subject to any rules so made and subject also to the other provisions of this Act and the following modifications and additions, the previsions of the Civil Procedure Code, 1908, shall apply to all such suits.

8. The contention is that the local Government has not made any rules declaring that Section 66 does not apply and therefore, under Clause (2) of that Section, it must be taken that Section 66 is made applicable to a sale in execution of a decree of a revenue Court. But the contention omits to take notice of the fact that the provisions of the Civil Procedure Code are only made applicable subject to the provisions of the Act and so far as the provisions of the Code are not inconsistent therewith. Where the Act itself provides the procedure for the sale of immoveable property in execution of decrees for rent that procedure has to ,be followed and not the procedure prescribed in the Civil Procedure Code. Therefore, the provisions of the Civil Procedure Code so far as they relate to the sale of immoveable property and the issue of sale certificate to a purchaser at such a sale must be deemed to be inconsistent with the provisions of the Act. This is the view taken by a division bench of this Court in Jagannatha Pillai v. Kathaperumal Pillai : AIR1927Mad1035 . (Vide the observations of Jackson, J., at page 82). Reliance is placed on the decision of the Privy Council reported in Balaram v. Naktu (1928) 54 M.L.J. 462 where Section 66 was held, by their Lordships of the Judicial Committee, to be applicable to a sale held in 'execution of a decree for arrears of revenue by a Collector. The sale was held under the provisions of the Central Provinces Land Revenue Act (XVIII of 1881). On a reference to the provisions of that Act, it will be seen that Section 109 distinctly provides that where immoveable property is sold- under that Act, the rules prescribed in Sections 287, 288, 293 and 306 to 316 of Civil Procedure Code, 1882 corresponding to Order 21, rr. 66, 71, 84 to 94 in the First Schedule of the Civil Procedure Code of 1908 should be followed. Therefore as the sale was held and certificate issued in pursuance of the provisions of the Code of Civil Procedure their Lordships applied Section 66 of that Code.

9. It seems to me therefore that Section 66 is not applicable to sales in execution of a decree for arrears of rent by a revenue Court under the provisions of the Madras Estates Land Act. In regard to the second contention both the Courts hold that as there was no allegation in the plaint that the name of the 4th defendant was inserted in the certificate fraudulently or without the consent of the real purchaser the application of Section 66 (2) does not arise. On a reference to the plaint I find the only allegation is that the property was purchased by the 4th defendant for the benefit of the plaintiffs. In the view I have taken in regard to the first contention relating to the applicability of Section 66 Civil Procedure Code, I think it unnecessary to deal with this point.

10. In the result I set aside the decrees of both the lower Courts so far as item 1 is concerned and remand the suit for hearing to the District Munsif of Koilpatti on the fourth issue. In the circumstances of this case I direct each party to bear his own costs throughout. The appellants will be entitled to the refund of court-fee paid on the memorandum of appeal both here and in the lower appellate Court.

11. Leave to appeal is refused.


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