K.S. Venkataraman, J.
1. This second appeal has been filed by defendants 1 and 2 in O.S. No. 359 of 1960 on the file of the Court of the District Munsif, Tirupattur. The properties involved in the suit admittedly belonged to them. But the case of the plaintiffs is that the first plaintiff became the lawful owner thereof. It is stated that one T. S. Ramasesha Iyer, brought the properties to sale in execution of a money-decree which he obtained in S.C. No. 755 of 1932, on the file of the Court of the District Munsif, Tirupattur, against the appellants, purchased the properties in Court auction himself and obtained the sale certificate Exhibit A-l, dated 17th April, 1935 and took such delivery as was possible under Exhibit A-2 on 4th July, 1935. It is further alleged that T.S. Ramasesha Iyer, was throughout acting as a benamidar for his brother T. S. Chengalvaraya Iyer, the explanation being that Chengalvaraya Iyer, was a retired Deputy Collector and it was felt advisable that such transactions should not figure in his name. Indeed, after the death of Ramasesha Iyer, hi; sons and grandsons executed a registered release deed Exhibit A-3, dated 10th August, 1937, acknowledging the fact that the Court auction purchase was on behalf of T. S. Chengalvaraya Iyer. The deed purports to be a release deed.
2. Even when the properties were purchased in the auction, they were subject to three mortgages, one of them being an usufructuary mortgage, Exhibit B-l, dated : 28th September, 1929, in favour of Jayalakshmiammal and Lalithambal, the daughter and granddaughter of Chengalvaraya Iyer. The others were simple mortgages. The case of the first plaintiff is that these mortgages were redeemed by Chengalvaraya Iyer and Chengalvaraya Iyer thus got possession and adopted the first plaintiff as his son and the first plaintiff was throughout in possession. It may be noted here besides the above relationship, the plaintiff T.R.C. Krishnan (who is the natural son of T. S. Ramasesha Iyer became the adopted son of Chengalvaraya Iyer. In other words, on account of the nearness of the relationship of the usufructuary mortgagees, it was easy for the first plaintiff to get into possession. Though the first plaintiff had leased the properties to plaintiffs 2 to 7, fearing that the defendants might interfere with their possession, the suit was brought for a declaration of the title of the first plaintiff and for an injunction restraining the defendants from interfering with the possession of the plaintiffs. An ad interim injunction was issued. However, on the allegation that the defendants trespassed into the properties after 3rd March, 1961, the plaintiffs got the plaint amended to include a prayer for possession.
3. The written statement of the defendants filed originally was that they were not aware of the proceedings in execution of the decree in S.C. No. 755 of 1932, under the Court auction purchase and delivery through Court. They admitted that the first plaintiff had been in possession, but they explained it on the ground that he was looking after the properties as the agent of the usufructuary mortgagees, Jayalakshmi Ammal and Lalithambal. They further contended that on the lapse of 30 years from the date of usufructuary mortgage it got extinguished under the provision of Section 9 of the Madras Agriculturists Relief Act (IV of 1938), and that Jayalakshmiamal and Lalithambal were good enough to recognise this fact and surrender possession of the properties to defendants 1 and 2 sometime in Chitrai (April-May) 1960. They were thus in possession. But when the trial Court granted the ad interim injunction, they vacated the lands. They disclosed the subsequent trespass of 3rd March, 1961. They thus denied the plaintiff's title and they also denied the first plaintiff's status as adopted son of Chengalvaraya Iyer.
4. The learned District Munsif who tried the suit accepted the case of the plaintiffs in full, rejected the defence and decreed the suit. Defendants 1 and 2 filed an appeal which was heard by the learned Subordinate Judge who also concurred with the findings of the learned District Munsif and dismissed the appeal. In particular, the learned Subordinate Judge found as fact that the equity of redemption was extinguished at the Court sale on 17th April, 1935, Exhibit A-l, that the purchase was benami for T. S. Chengalvaraya Iyer, that the first plaintiff was the adopted son of Chengalvaraya Iyer, and thus became entitled to the properties as a result of the release deed Exhibit A-3, dated 10th August, 1937, and the patta Exhibit A-4 dated 28th September, 1936 issued in favour of Chengalvaraya Iyer, that the first plaintiff was throughout in possession as evidenced by the several lease deeds Exhibit A-5 etc., and paid kist himself, that on the date of the suit he was in possession, that the story of the defendants having obtained possession from the usufructuary mortgagees Jayalakshmiammal and Lalithambal was not true and that the defendants trespassed into the properties or. 3rd March, 1961.
5. Aggrieved by the dismissal of the suit, defendants 1 and 2 have preferred this second appeal. The point of law raised on their behalf by their learned Counsel Sri Parasaran is two-fold : (1) that in view of Section 66 of the Civil Procedure Code, it is not open to the first plaintiff to contend that the Court auction purchase by T. S. Ramasesha Iyer, was benami for T. S. Chengalvaraya Iyer, and (2) that the release deed, Exhibit A-3, dated 10th August, 1937, was not sufficient in law to pass the title of T.S. Ramasesha Iyer, to Chengalvaraya Iyer, and that a regular conveyance was necessary to transfer the said rights of Ramasesha Iyer.
6. Section 66, Civil Procedure Code, runs thus:
1. 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 someone through whom the plaintiff claims.
7. It is clear that the contention of the learned Counsel cannot prevail, because the suit is not against T. S. Ramasesha Iyer or those claiming under T. S. Ramasesha Iyer. Section 66 forbids only such a suit against a certified purchaser or those claiming under him. As a matter of fact, according to the finding of the learned Subordinate Judge, which is binding on me, Ramasesha Iyer's heirs acknowledged the fact that the purchase was benami on behalf of Chengalvaraya Iyer. There is nothing in Section 66 to forbid such recognition of the real owner's title by the benami Court auction purchaser of his heirs. It will be seen presently that Section 66 does not prohibit benami transactions which have always been recognised in this country, and that the scope of Section 66 is limited to a case where the suit is brought against the certified purchaser or his representatives. This position has been uniformly recognised by the Privy Council. Mst. Buhuns Kowur v. Behoree Lall (1870) 14 M.I.A. 496, Monappa v. Surappa I.L.R. (1888) 11 Mad. 234, Sankuni Nayar v. Narayana Nambudiri : (1894)4MLJ64 , Kumbalinga Pillai v. Ariaputra Padiachi : (1895)5MLJ200 , Amruta Venkatappa v. Vavillala Jalayya : (1919)37MLJ98 .
8. In Mst. Buhuns Kowur v. Behoree Lall (1870) 14 M.I.A. 496, the Court auction purchaser brought the suit for redeeming an usufructuary mortgage. The defence of the usufructuary mortgage was that the Court auction purchase itself was benami for him. That defence was found to be true and it was consequently held that it was not open to the certified purchaser to redeem the usufructuary mortgage. The certified purchaser invoked the provisions of Section 260 of the then Civil Procedure Code, Act VIII of 1859, which was substantially similar to the present Section 66 (1) and ran thus:
The certificate shall state the name of the person who at the time of sale is declared to be the actual purchase, and any suit brought against the certified purchaser on the ground that the purchase was made on behalf of another person, not the certified purchaser, though by agreement the name of the certified purchaser was used, shall be dismissed with costs.
9. Their Lordships of the Privy Council had no hesitation in holding that this provision was not available to the certified purchaser. They started by pointing out that in equity and good conscience, his claim could not succeed, and that unless the statutory provision was so compelling, as to preclude the Court from recognising the defence of the usufructuary mortgagee, the usufructuary mortgagee's right had to be upheld. They pointed out that the benami purchases were common in India and that the statutory provision above cited did not intend to invalidate' such benami purchases and that the scope of Section 260 was limited to the circumstances indicated in the section, namely, where the suit was brought against the certified purchaser on the ground that it was benami purchase. But in the instant case the converse was the case and it was the certified purchaser who was trying to redeem the usufructuary mortgage. The prohibition contained in the statutory provision did not extend to such a situation.
10. The above decision was applied by Muttuswami Aiyar and Brandt, JJ., in Monappa v. Surappa I.L.R. (1888) Mad. 234. There it was found that one Surappa had purchased some property in Court auction on behalf of one Lingamma Shettati, his sister. The deposit of Rs. 600 which had to be made immediately was the money of the sister. Surappa provided the balance of the purchase money of Rs. 1,650. He put his sister in possession of the property and agreed to execute a formal sale deed on the sister paying him the sum of Rs. 1,650 which had been advanced by him. But he went back on this arrangement and ejected his sister. The sister thereafter brought a suit O.S. No. 73 of 1884 on the file of the District Munsif's Court of Kandapur, to recover possession. The defendant pleaded the bar under Section 317, Civil Procedure Code (corresponding to Section 66 of the present Code). The defence was upheld by the learned District Judge, who tried the suit. The sister filed the appeal. The appeal was allowed and it was held by the learned Judges that Section 317 was not a bar. The learned Judges relied on the Privy Council decision in Mst. Buhuns Kowar v. Behoree Lall (1870) 14 M.I.A. 496, and observed:
It is obvious, therefore, that when after obtaining certificate of sale, the purchaser acknowledges that his purchase is benami and gives up possession, or does some act which unequivocally indicates an intention to waive his right or to restore the property to the real owner, the fresh act might, by reason of the antecedent relation between the parties operate as a valid transfer of property, the reason being that benami purchases are not made illegal, though the real purchaser, is disabled from maintaining a suit against the certified purchaser at an auction sale in execution of a decree on the sole ground that he was only a benamidar.
11. The plaintiff was given a decree on payment of Rs. 1,650 to the respondent-defendant.
12. It is unnecessary to refer in detail to the other decisions which have followed the same principle. In view of the above decisions, it is clear that the present suit is not barred under Section 66, Civil Procedure Code. The above decisions themselves, in particular, the decision in Monappa v. Surappa I.L.R. (1888) Mad. 234, are also authorities for showing that, the release deed Exhibit A-3 was sufficient in law to perfect the title of Chengalvaraya Iyer. The principle is that benami purchases not having been made illegal by Section 66, Civil Procedure Code, Chengalvaraya Iyer had a preexisting title which could well be validated by the Court auction purchaser Ramasesha Iyer or his heirs and for the purposes of validating a pre-existing interest, a release deed was sufficient and a conveyance as such was not necessary.
13. In addition Sri R. Gopalaswami Iyengar and Sri K. N. Balasubramaniam for the respondent-plaintiffs rely on the two decisions reported in Arumugam Chettiar v. Kuppuswami Chettiar (1961) 2 M.L.J. 265, and T. Mammo v. Ramunni : AIR1966SC337 , and contend that Exhibit A-3 though styled as release deed, could well be construed as a deed of conveyance of whatever rights T. S. Ramasesha Iyer had to Chengalvaraya Iyer. Arumugam Chettiar v. Kuppuswami Chettiar (1961) 2 M.L.J. 265, was a case where the release deed, Exhibit B-l in that case was so construed, though there was no consideration for the release deed. It specifically stated that the plaintiff had no right at all in the properties as well as outstandings belonging to Kannammal and that the defendants would be entitled to enjoy the properties without any objection whatsoever and with all rights. The learned Judges held that the effect of the deed was to operate as a transfer of whatever rights the plaintiff had to the defendants. In T. Mammo v. Ramunni : AIR1966SC337 , their Lordships of the Supreme Court held that the deed which was styled as a release deed in that case could be construed as a deed of transfer and observed:
We think that a registered instrument styled a release deed releasing the right, title and interest of the executant in any property in favour of the release for valuable consideration may operate as a conveyance, if the document clearly discloses an intention to effect a transfer.
14. Their Lordships observed that the nomenclature of the deed and the amount of the stamp paid on it, though relevant, were not conclusive on the question of construction.
15. In the case before the Supreme Court, the deed was for a consideration whereas, in the present case, Exhibit A-3 was for no consideration. To that extent, it may not be right to say that it is a decision directly applicable. The decision in Arumugam Chettiar v. Kuppuswnmi Chettiar (1961)2 M.L.J. 265, is however, directly applicable to the facts of this case. Exhibit A-3 on its terms, could be construed as disclosing the intention, of the executants to transfer whatever rights they had to Chengalvaraya Iyer. It is true that, on the footing that a conveyance is required to be properly stamped Exhibit A-3 was not properly stamped. But an objection that the deed is not duly stamped cannot be taken after the document was admitted in the trial Court in view of the provision in Section 36 of the Indian Stamp Act. Further, their Lordships of the Supreme Court have pointed out that that is not a decisive criterion.
16. Mr. K. Parasaran, learned Counsel for the appellants, has relied on the decision of the Supreme Court in Ddmodharan Namboodri v. Narayana Plllai (1959) S.C.J. 545 : A.I.R. 1958 S.C. 833. Exhibit A-4 in that case was a deed by which one Nagayya Antharjanam stated that by reason or certain marriage being in what is described as ' Sarvaswadhanam '' form the appellants were entitled to all moveable and inmoveable properties belonging to Kopparathu Illom, and therefore she was executing the release deed conferring all the rights and claims the appellants had obtained over the Illom properties by the Sarvaswadanam form of marriage. It was however found as a fact by their Lordships that the marriage was not in the Sarvaswadanam form and the appellants, had, therefore, no pre-existing rights as was assumed in Exhibit A. Since the document purported to confirm only the pre-existing rights of the appellants and as it was found that there was no pre-existing rights it was held that the 'document was not sufficient to convey any interest to the applicant. The question therefore turned on the construction of Exhibit A in that case. Apart from the question of construction, the present case is distinguishable, because, here it has been found as a fact that Ramasesha Iyer was only a benamidar for Chengalvaraya Iyer and therefore the recitals to that effect in Exhibit A-3 are operative.
17. Thus the first plaintiff had valid title and the other points particularly of possession, have been found in his favour by the lower appellate Court and these findings are binding on me. The appeal fails and is accordingly dismissed, but with-out costs. No leave.