1. One Venkatrayudu who died in 1934, had a large family consisting of the plaintiffs 1, 2 and 3, the defendants 2 and 4, the deceased husband of the 3rd defendant and a daughter who was married to the 1st defendant, the appellant in the present case. In 1915, one of the sons of Venkatrayudu, the 4th defendant, became an insolvent and in February, 1919, the Official Receiver in the insolvency sold his i/7th share of the family properties partly to one Sivarama-krishnayya and partly to the appellant. Sivaramakrishnayya purchased the i/jth. share in certain items and the appellant purchased the i/7th share in other items. Together the two of them purchased the whole of the share of the insolvent son.
2. In 1922, one of the purchasers Sivaramakrishnayya filed a suit O.S. No. 55 of 1922, on the file of the Subordinate Judge of Guntur, in which he prayed for a partition of the share of the insolvent and the allotment of the properties to the two purchasers, namely, Sivaramakrishnayya and the present appellant, after working out the equities between the several parties, or alternatively the plaint prayed for allotment of the proportionate amount of the insolvent's share to the plaintiff, i.e., Sivaramakrishnayya and his coparceners. There was also a prayer for mesne profits. The plaint alleged that the properties purchased in the name of the 1st defendant were purchased for the benefit of his father-in-law's family, but it was also averred that the two purchasers, namely, Sivaramakrishnayya and the appellnt, had together become purchasers of the entire 1/7th share of the insolvent and that the appellant not having joined in instituting the suit as he was colluding with the other defendants had been made a defendant. The appellant filed no written statement but it appears from the judgment that certain of the other defendants representing the family of the appellant's father-in-law did file written statements in which they made no averment regarding the nature of the title acquired by the appellant by reason of his purchase. In the course of the evidence, however, Venkatrayudu, the father-in-law of the appellant, stated in evidence that he did not advance the purchase money to his son-in-law. No issue was framed in the suit regarding the alleged benami character of the purchase by the appellant.
3. The suit resulted in a finding that the plaintiff and the appellant were entitled to have a separate allotment of properties by reason of their purchases from the Official Receiver, that the properties so allotted were to be charged with a sum of Us. 1,000 being 1/7th of the amount set apart for the marriages of the daughters of the family and the plaintiffs and the appellant were directed to pay respectively Rs. 475 and Rs. 525 on this account. There were cross-appeals preferred against this decree, the plaintiff's appeal relating to the apportionment of costs between the plaintiff and the 1st defendant and the appeal of the members of the family of the defendant's father-in-law relating to various contentions with which we are not now concerned. The appeal resulted in the confirmation of the trial Court's decree except for slight modifications. There was a second appeal preferred by the members of the appellant's father-in-law's family which again resulted in substantial confirmation of the original decree.
4. This litigation lasted up to June, 1934. Meanwhile, Sivaramakrishnayya had obtained a final decree, but nothing had been done by the present appellant in the direction of obtaining the final decree, to which the preliminary decree entitled him and he does not seem to have contested any of the appellate proceedings. In 1935, there was trouble in the family, one of the members of which obtained a decree on a promissory note against the present appellant. Thereafter the appellant filed I.A. No. 602 of 1937 in which he applied for a final decree for the possession of the properties to which he was entitled under the preliminary decree. In the counter-affidavits in these proceedings it was for the first time specifically averred on behalf of the members of Venkatrayudu's family that the appellant had purchased the insolvent's property benami for the benefit of that family with funds supplied by the family and was therefore not entitled to a final decree. This objection together with other contentions were considered by the learned Subordinate Judge in his order dated 25th August, 1942, on the application for a final decree. Paragraph 7 of that order summarised the contention that the appellant was a benamidar and therefore disentitled to a final decree for the possession of the lands held by the insolvent's family. The learned Subordinate Judge meets this objection in the following words:
This objection virtually attacks the decree itself by which the parties are bound. It amounts to a denial of the right conferred upon the 1st defendant by the decree. In the absence of authority I am unable to uphold the contention. It was open to defendants 2 to 8 to plead in the suit that the 1st defendant was only a benamidar for them and as such was not entitled to any share. I do not think I would be justified in enquiring into the benami nature of 1st defendant's purchase by receiving oral evidence, varying the decree.
5. The result was that a final decree was passed in favour of the appellant.
6. No appeal was preferred against this final decree and the present suit was filed on the 5th December, 1942. In the present suit the prayer is for a decree declaring that the 1st defendant-appellant is in the position of a benamidar or trustee for the plaintiffs and other members of Venkatrayudu's family in respect of the suit sale deed and has no title to the properties otherwise than as a trustee and for an injunction restraining the 1st defendant from disturbing the plaintiff's possession, or alternatively for possession of those properties. The trial Court has held that the appellant was in fact a benamidar for the family of his father-in-law in respect of the properties purchased from the Official Receiver and that the present suit is not barred by res judicata by reason of the decision in O.S. No. 55 of 1922. Hence the present appeal.
7. The 1st question which we have to decide is whether it has been established as a fact that the appellant was a benamidar for his father-in-law's family when he purchased the properties in February 1919.
8. His Lordship considered the evidence and concluded as follows:
9. We therefore find that it has not been proved that the appellant purchased these properties as a benamidar for Venkatrayudu and his family.
10. This finding is sufficient to dispose of the appeal, but as we have heard full arguments on the legal questions resulting from the lower Court's finding that the appellant was a benamidar, it seems to us desirable that we should state briefly our views. We do not think that the case cited on behalf of the respondents on the question of res judicata between co-defendants and co-plaintiffs have any bearing on the point at issue, for the position of the appellant in the partition suit was really that of a plaintiff claiming partition against his father-in-law's family. The learned Advocate-General cited the decision in Kailas Mondal v. Baroda Sundari Dasi I.L.R.(1897)Cal. 711, as authority for the contention that when a benamidar has filed a suit against the real owner and the real owner has failed to contend that the plaintiff is a benamidar, such a contention may be raised in a subsequent suit; but we find on an examination of the facts in that case that the actual point at issue was something quite different. It is really a case in which the 1st suit was brought for rent and the tenant did not contend that the landlord must be non-suited because he is not the owner of the property but a mere benamidar and he was allowed to raise such a contention in a subsequent suit on the footing that it was not clear that the evidence as to the status of the landlord was available to him in the former litigation. It was not a case in which the tenant was alleging that the landlord was a benamidar for himself.
11. The general rule undoubtedly is that a party to a suit cannot in a subsequent proceeding be heard to allege that a decree obtained against him in a former litigation was obtained as a result of collusion between himself and the plaintiff. If authority is needed for this self evident proposition it can be found in Kama Row v. Nukamma : (1908)18MLJ576 , where a number of other cases are cited to the same effect. What in fact the respondents contend is that, although in the former suit the appellant was really in the position of a co-plaintiff, on whose behalf a decree was sought against them, they thought it desirable to maintain a pretence that he was entitled to a decree against them, although really the decree could not be operative having regard to the real state of title between the parties. It seems to us that such a plea cannot be entertained. If the respondents were in fact the real owners of this property and they suffered a decree to be passed against them which recognised the ownership of the appellant and his right to ask for a further decree for possession,, they cannot afterwards be heard to say that the litigation so far as the appellant's claim was concerned, was a mere make-believe and that both parties had a private understanding that the decree should not operate.
12. This seems to have been the view of the learned Subordinate Judge who dealt with the objections in the final decree proceedings. No doubt it might have been possible to argue that the averment in the plaint that the appellant was a purchaser on behalf of Venkatrayudu's family might be read into the decree so as to treat that decree as authorising no more than the recognition of the appellant as a mere benamidar. We doubt whether such an argument could, if it had been advanced, have succeeded, but it does not appear to have been advanced and there is nothing in the judgment of the learned Judge who passed the final decree to indicate that he was merely leaving the matter open for some future proceedings in view of the fact that the preliminary decree was silent on the question of benami. It is moreover, doubtful whether even if the learned Judge had left the matter open that would have in any way affected the legal position.
13. The position as it seems to us is this. The plaint contained a somewhat superfluous averment that the 1st defendant was colluding with Venkatrayudu's family and that he purchased on their behalf. There was no denial in the pleadings of this contention, but in the evidence Venkatrayudu asserted that he had not contributed the money towards the purchase. On the prayer in the plaint that a share should be allotted not merely to the then plaintiff but also to the appellant, a decree followed which recognised as against Venkatrayudu's family the right of the 1st defendant to recover possession by means of final decree proceedings of a certain share in the family properties and also recognised the obligation of the 1st defendant to contribute rateably to the amount necessary for the marriage of the unmarried daughters; that is to say, the preliminary decree treated the appellant precisely as if no question of benami had been referred to in the plaint at all and it treated him as a mere stranger purchaser entitled in equity to the allotment of a proportionate share out of the properties which should have been allotted to the insolvent whose share had been sold. That being so, as between the appellant who stood in the position of a plaintiff and Venkatrayudu's family who were the real defendants it was decided that the right to the ownership of the lands to be so allotted was with the appellant and not with the family. When the family of the defendants tried to raise in the final decree proceedings an objection, which if it had been successfully raised before the preliminary decree would presumably have resulted in the refusal of a preliminary decree to the appellant, the learned judge quite rightly refused to give effect to the objection, holding that to do so would be to nullify the preliminary decree so far as it related to the appellant. Even if this decision in the final decree proceedings was wrong, it binds the parties thereto. We, therefore, are of opinion that even on the assumption, that the appellant was in fact a benamidar for Venkatrayudu and his family, the present suit must fail.
14. In the result, therefore, we allow the appeal and dismiss the suit with costs throughout, the costs to be payable to the appellant, 1st defendant in the trial Court.