1. It is the case for all parties that the land sued for originally was the jenm of Thekkadath Nair. Plaintiff's case is that it was demised to first 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 ThekkadathNair and purchased by Raman Nambiar from whom it was purchased by plaintiff Hence plaintiff sues to redeem the kanom and recover the land from first defendant and his tenant, second defendant.
2. The first defendant denies that he holds under the kanom sued on, and alleges that prior to the purchase by Raman Nambiar the jenm right of the Thekkadath Nair had been sold in execution of a certain decree against the jenm and purchased by Sridevi Ammal, a female member of the tarwad of the Thekkadath Nair, reserving a kanom right of Rs. 325 in favour of defend. ant No. 1, which was subsequently renewed for Rs. 525. Sridevi Ammal was made defendant No. 3 and supported defendant No. 1.
3. The Munsif found that the purchase by defendant No. 3 was made in her 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 defendant No. 1, and the Munsif accordingly decreed for surrender of the plaint lands by defendants to plaintiff on his paying defendant No. 1 the kanom amount Rs. 325 and ordered that first and third defendants should pay plaintiff's costs. Defendant No. 3 appealed to the District Court in Appeal No 89 of 1890 and defendant No. 1 in Appeal No. 117 of 1890. Defendant No. 2 did not appeal.
4. The District Judge in Appeal No. 89 of 1890 concurred in the finding of the Munsif as to the nature of the purchase by defendant No. 3, 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, the District Judge for the same reasons as in Appeal No. 89 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 making all three defendants respondents. First and second 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. The suit, therefore, stands dismissed without appeal against defendant No. 1, and plaintiff cannot obtain the only relief he sought, viz., a decree for redemption on payment of the kanom amount to first 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 defendant No. 3 having been made a party at the instance of plaintiff, and plaintiff having asserted as against her that her purchase was made benamee for the tarwad and 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 Section 317 would clearly be a bar to plaintiff's obtaining it. Treated as a suit against defendant No. 3 for a declaration that her purchase was made benamee 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 Cal., 204 which seems to us to contravene the clear meaning of the section. It is not in our opinion a sufficient reason for not 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 de maintained against him on the ground that the purchase was benamee and thus provides that his fraud shall prevail. The object of the section, we consider, was to put a stop to benamee 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 memorandum of objections and we dismiss it with costs.