1. The point that arises in this revision petition is whether the order of the District Munsif of Tindivanam allowing a petition to implead the first respondent as plaintiff is correct. The facts are these: The plaintiff in O.S. No. 162 of 1959 on the file of the District Munsif of Tindivanam died and his two widows (respondents 2 and 3 in this petition) were brought on record. The suit was for recovery of possession of certain properties on the basis of title created by a document of sale in favour of the second plaintiff. The first respondent filed a petition under Order XXII Rule 3 C.P.C. seeking to come on record as the legal representative of the deceased plaintiff and to continue the suit.
His case was that the property in dispute belongs to him and that the deceased plaintiff was his benamidar, the document of sale having been executed in his favour only to enable the recovery of the property, the first respondent claiming that as be was residing elsewhere, he was not in a position to institute and continue the action. The first respondent also alleged that on finding that the widows, the legal representatives of the deceased plaintiff, were acting adversely to his interest, he found it necessary to come on record by himself and to prosecute the suit.
2. Though, the learned District Munsif rightly held that neither Order XXII, Rule 3 C.P.C. not Or. I Rule 10 C.P.C. would apply to the facts of the case yet, under the circumstances, the principles underlying these provisions should be liberally construed. He thought that the apprehension of the first respondent that the widows of the deceased plaintiff were colluding with the defendant in the suit was not ill-founded and in order to Protect the interests of the first respondent, the person claiming to be the real owner of the property, it was not proper to allow the widows to continue to prosecute the suit as plaintiffs. He accordingly directed the first respondent to be brought on record as the second plaintiff and the legal representatives of the deceased plaintiff to be transposed as defendants in the suit.
3. The defendant in the suit questions the correctness of this order.
4. There is considerable authority for the position that a benamidar can maintain an action in his own name and that so long as the benamidar does not purport to sue in a representative capacity, the real owner cannot come in on his death under Order XXII Rule 3. It was so decided in Doraisami Thevar v. Chidambaram Chettiar, 31 MLW 194 : (AIR 1930 Mad 221). Jackson J. relied upon an earlier decision in Perianna Chettiar v. Rangachi Reddi, 17 M LJ 116.
This decision Proceeded upon the well-recognised principle that a legal representative as defined under Section 2(11) of the Civil Procedure Code will not include the real owner. Whether the real owner can intervene and claim to be brought on record during the lifetime of the benamidar suing as the plaintiff is not the question that arises now. The alleged benamidar is dead and on his death, the law allows only his legal representatives to be brought on record. There is no doubt that the real owner will not be the legal representative within the mining of Section 2(11) C. P. Code.
5. It is also clear that Order I Rule 10, which was partly relied upon before the lower court has no application. None of the conditions contemplated in this rule obtains in this case. Sub-rule (2) of Rule 10 enables the court to direct that the name of any person who ought to have been joined, whether as plaintiff or defendant or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
Even this sub-rule cannot apply. The suit was laid by the deceased plaintiff on the allegation that he had purchased the property on payment of consideration to the first respondent, and had acquired title to the property. There was no suggestion either in the proceedings that the deceased plaintiff was only a benamidar maintaining the action on behalf of the real owner. Since the law permits a benamidar to maintain an action in his own name and the real owner would be enabled to enjoy the benefits of any decree that such benamidar may obtain, no circumstances appear to exist which would justify the bringing on record of the alleged real owner.
What Sub-rule (2) contemplates is that the substitution or the addition of a new party can be effected if it is necessary to effectually adjudicate upon questions involved in the suit. The questions involved in the suit as laid did not call the determination of the question as to who was the real owner of the property or of any disputes infer se the benamidar and the real owner. That being the case, this sub-rule will not also justify the real owner being brought on record as the plaintiff.
6. In Andalammal v. Jangamayya : AIR1944Mad27 the earlier decision referred to was followed and Horwill J. held that the real owner cannot be allowed to continue the suit as the legal representative of the benamidar, plaintiff, who died pendente life. The learned Judge distinguished the decision in Balasubrainanian Chetty v. Kothandaramaswami Nayanimvaru : AIR1942Mad688 . This Full Bench decision decided that where a decree is held by one person as benarnidar for another and the holder dies, the true owner can apply for execution and if his title is disputed, the question can be decided in these proceedings.
Though this Full Bench was constituted to resolve the difference of opinion which existed upon this question between two earlier Bench decisions of this court, that conflict remained unresolved and the Full Bench confined its answer to a case where the facts were similar to those of the case before it. The view that was taken by the Full Bench was based upon Order XXI, Rule 16. The learned Chief Justice observed:
'If A in fact holds a decree as benamidar for B, on A's death his heirs cannot claim it as their property. The decree is the property of B and death has removed the nominal holder from the scene. Why should not B in these circumstances ask the court to execute the decree at his instance on the ground that by operation of law he has obtained a complete title to it?'
7. the principle of this decision was however distinguished, as I said, earlier, by Horwll J. who held that very different considerations would arise in an application to be allowed to continue the suit.
8. It would accordingly appear from these decisions that the real owner cannot be brought on record on the death of the benamidar plaintiff.
9. On behalf of the respondents Gur Narayan v. Sheolal Singh, AIR 1918 PC 140 has been relied on. In this case, the Judicial Committee held that the benamidar has no beneficial interest in the property and that stands in his name and that in fact he represents the real owner, and so far as their relative legal position is concerned, he is a mere trustee for him. Their Lordships observed;
'In such circumstances, there is no reason why an action cannot be maintained in the name of the benamidar in respect of the property, although the beneficial owner is not a party to it. The bulk of judicial opinion in India is in favour of the proposition that in a proceeding by or against the benamidar, the person beneficially entitled is fully affected by the rules of res judicata. It is open to the latter to apply to be joined in the action; but whether he is made a party or not, a proceeding by or against his representative in its ultimate result is fully binding on him'.
It is argued relying on these observations that in the peculiar circumstances of this case, where the legal representatives of the deceased plaintiff are suspected to be colluding with the defendant, there is grave apprehension of the result of the suit being binding upon the real owner and to his detriment. In these circumstances, it is claimed that the real owner shall be permitted to come on record. Jackson J. in 31 MLW 194: (AIR 1930 Mad 221) examined this decision also and thought that it only went to the extent of laying down.
'that a benamidar legitimately represents the real owner, is a mere trustee for him, and, if he likes, may sue in his own name in an action to which the beneficial owner is no party, But it does not lay down that in such a suit the trustee sues m a representative character'.
Though there are observations to the effect that the real owner would be bound by a decree passed against the benamidar, if seems to me that where the legal representatives of the benamidar actively resist the coming on record of the real owner as the plaintiff, it is doubtful if such a decree would bind the real owner. Such a result is possible only when ex facie the benamidar is suing in a representative character, and not otherwise.
10. Another decision relied upon by the respondents is Thakurdas Gordhandas v. Dagdulal Ranchoddas, AIR 1941 Nag 178. In this case Vivian Bose J. disagreed with the decision in 31 MLW 194: (AIR 1930 Mad 221) and purported to rely upon the Privy Council decision referred to, which, according to the learned Judge, laid down that it is open to the real owner to apply to be joined in the action brought by the benamidar. He proceeded to hold that the teal owner had a right to be so joined. He observed:
'If the suit does not abate and if it is still alive, then the real owner can, in my opinion, only apply to be joined, and once he is joined, he can continue the suit. But, as I have said, he must continue the same suit and cannot set up a different cause of action or different pleas. It is argued that the mere fact that he is setting up a title in himself here, changes the cause of action and converts the suit into one of a different character. That again is not so. The question whether he is the real owner is an independent one and his right to be joined depends upon whether he is the real owner or not. It is just as independent as whether a person is a legal representative or not. For that purpose, of course, an enquiry has to be made and if the decision is that he is the legal representative (or the real owner in this case) then he is entitled to be joined and once is joined, then the original suit ..... is converted into one of a different character.......'
With all respect to the learned Judge, where the suit itself was laid by the alleged benamidar claiming title to the property in himself, and there was no hint of any representative character, the joining of a person claiming to be the real owner does introduce into the suit totally different elements which call for determination. It really becomes under those circumstances, more particularly when the legal representatives of the deceased plaintiff deny that the suit was laid as a benamidar, the joinder of the suits, in one, the claim of the real owner to declare that he is entitled to the property as against the benamidar and the claim to recover possession from the defendant. If these facts do not convert the suit into one of a different character, I fail to see what else they do.
11. Following the decisions of this court. I amof opinion that the learned District Munsif erred inallowing the petition to bring the first respondenton record as plaintiff. The petition is allowed.There will, however, be no order as to costs.