1. This is an appeal against the order of the learned District Judge of Ganjam on two Execution Petitions, namely, 39 of 1916 and 68 of 1916. In the former Kamalanatham Naidu was the petitioner as transferee and benamidar of the late Parasuramayya Chowdhari stated to be the real owner of the decree. Kamalanatham Naidu having died, the real owner's undivided son Nandesam Chowdhari, a minor, represented by his next friend Duvvada Butchamma, was the petitioner, and the respondents were Duvvada Patrudu alias Janakiramayya Chowdhari and Duvvada Gusayi Chowdhari In E.P. No. 68 of 1916 the undivided brother of Kamalanatham Naidu, transferee, is the petitioner and the respondents are the same as in E.P. No. 39 of 1916. The learned District Judge, whose predecessor held that the question which of these two rival petitioners can execute the decree is one to be decided under Section 47, Civil Procedure Code decided on the merits that the brother of Kamalanatham Naidu is not entitled to execute the decree in E.P. No. 68 of 1916 and dismissed the execution petition.
2. The facts are that in O.S. No. 20 of 1904 a certain Bheemaraju Chetti obtained a decree which he transferred by Ex. A to Kamalanatham Naidu. That was on the 25th November, 1906. Kamalanatham Naidu applied to be brought on the record as transferee decree-holder and was so recognised on the 9th March, 1908. In 1914 Kamalanatham Naidu died and the appellant is, as stated, his undivided brother. The petitioner in the other petition is the undivided nephew of the judgment-debtor and a cousin of Kamalanatham Naidu's mother. This petitioner alleges that his father was the real transferee and that Kamalanatham Naidu was only a benamidar for him. It is, therefore, to be observed that the original parties, i.e., the original transferor and the original alleged benami transferee and the original alleged real transferee are all dead, and the first question is, can a question involving a benami transaction be gone into under Section 47, Civil Procedure Code? It is maintained for the appellant that this has now been decided in Palaniappa Chettiar v. Subramania Chettiar : AIR1925Mad701 and that decision must be taken to exclude every possible question of benami that may arise in execution. If that is so, the appellant is right. But the question is, does the decision go to that length? What the decision of the Chief Justice and V.V. Srinivasa Iyengar, J., amounts to is that where a decree has been transferred to a person in writing, nobody else can under colour of being a real owner apply to have the right of executing the decree conferred on him. In other words, the transfer is conclusive of the right to execute. In that case the assignment of the decree was taken in the personal name of one R.M.M. Subramaniam Chetti and it was attempted to be shown that this gentleman was only an agent with a general power from one S.M. Subramania Chetti and that, therefore, the assignment to R.M.M. Subramaniam Chetti was simply a benami transaction for the principal. The learned Judges held that under Order XXI, Rule 16 which lays down that where a decree is transferred by an assignment in writing or by operation of law the transferee may apply for execution, excluded a person otherwise a stranger to the Court from coming forward and alleging that the transferee is a mere benamidar. V.V. Srinivasa Iyengar, J., observed at the end of his judgment: 'It is also clear that the Civil Procedure Code did really intend to prevent benamidars coming in and making application to the Court on the general basis of the law relating to benami transactions.' The case seems to me to amount only to this, namely, that the rights of the transferee to come in are confined unlike those of the decree-holder to Order XXI, Rule 16. This rule has to be read in connection with Section 47(3) which lays down the procedure to be adopted when an assignee as representing his assignor wants to execute. In further support of his argument the learned Vakil for the appellant cited Paupayya v. Narasannah 2 M. 216 : 5 Ind. Jur. 196 : 1 Ind. Dec. (N.S.) 422 which is a very similar case to Palaniappa Chettiar v. Subramia Chettiar : AIR1925Mad701 except that the decision which was disapproved in the latter case was to the precisely opposite effect. There Johnston's name appeared on the face of the decree and it was alleged that he had obtained the decree an agent for Arbuthnot and Co. It was held that the decree-holder was the person whose name appeared on the face of the record or had been recognised as transferee. The decision in Basroorvittil Bhandari v. Ramachandra Kamthi 17 M.L.J. 391 : 2 M.L.T. 197 does not appear to help the appellant as in that case there was no decree when the assignment was made. The question really is whether on the death of the assignee, who, we will assume for the present, to be a benamidar, the question under Section 47(3) can be re opened de novo and the matter decided as to who is really the representative of the decree-holder. It does not seem to me that the case in Palaniappa Chettiar v. Subramania Chettiar : AIR1925Mad701 understood in the way I have set out above, affords us any assistance in a matter of this sort unless it can be taken, as I do not think it can, to be a general declaration that no kind of transaction involving the doctrine of benami will be enquired into by the Executing Go Article If the law really meant that, it would have been quite easy to have inserted a provision in Order XXI, Rule 16 or in Section 47. There is no question here of going behind the decree because the person named in the decree is dead and the question seems to be to resolve itself into one quite as much to the title of the decree as one involving this question of benami. In fact, I would go so far as to say that this question of benami shrinks to very unimportant proportions in a matter of this sort, the question being who is the real owner of this decree which is at present so to speak floating about and without any person authorized to execute it. The right of the real owner to execute the decree is recognised in an earlier case in Abdul Kureem v. Chukhun 5 C.L.R. 253 where the benamidar admitted that a certain sale to him was benami and that the real and beneficial transferee was the father of the applicant for execution on which the lower Court allowed the decree to be executed. Mitter, J., in that case observed that the benami system is recognised in this country and a benamidar is not a transferee of the decree, whereas the section only authorized; the Court to allow the transferee of the decree to apply for execution. That, no doubt, has been modified in modern times and benami transactions have been recognised in later decisions as for instance by the Privy Council in Our Narain v. Sheo Lal Singh 49 Ind. Cas. 1 : 46 C. 566 : 17 A.L.J. 66 : 36 M.L.J. 68 : 9 L.W. 335 : 23 C.W.N. 521 : 1 U.P.L.R. 1 : 12 Bur. L.T. 122 : 46 I.A. 1 holding that a benamidar, though not beneficially interested in property standing in his name, represents in fact the real owner and is so far as their relative legal position is concerned a mere trustee for him and is authorised to sue. Sir George Farwell in an earlier case in Bilas Kunwar v. Desraj Ranjit Singh : (1915)17BOMLR1006 observed that this system had a resemblance to a resulting trust. If that is so, it seems difficult to say that the title to this decree has not resulted to the appellant by operation of law such as is contemplated by Section 82 of the Trusts Act. It has been argued that, when a benamidar dies, he being in the position of a trustee under the Trusts Act, and there being no person under Section 73 to appoint a successor to him, his legal representative must assume the benami character which was held by his father or other predecessor. The case in Jagannath Prashad Singh v. Abdullah : (1918)20BOMLR851 was cited to us for the proposition that a trusteeship did devolve on the late trustee's legal representative. It is based on one sentence at the end of the Privy Council judgment where the facts are extremely complicated. The sentence runs as follows: 'Kashinath was a trustee for Raja Bhikham and Lajjadhari could only succeed to his father's trusteeship.' Kashinath was a benamidar for the Raja and his son Lajjadhari executed a conveyance acting on the instructions of the Rajah. It can hardly be denied that the Rajah was the true owner and that Lajjadhari had nothing in himself that he could convey. I think that is all their Lordships meant by the sentence in question and that it would be an extraordinary doctrine to lay down that when a benamidar dies, of necessity the benamidarship is carried on by his relations, who happened to be his legal representatives. A benami transaction is, I imagine generally entered into with one who is personally trusted or personally selected for some reason that commends itself to the transferor and it is extremely unlikely that any benamidarship would be intended to last beyond the life of the person who is interested as benamidar. Various cases were cited to us on behalf of the respondent to show that the death of the benamidar merely removes a bar to the legal as well as the beneficial enjoyment of the, property by the beneficiary. For instance, on revocation of Probate Umasoondury Dossy v. Brojonath Bhuttacharjee 16 C. 347 : 8 Ind Dec. 228 an executrix took out Probate and obtained a decree for rent. The Probate was revoked by a minor who applied for execution of this decree. The Court held the minor could execute as he had succeeded his father by the operation of law. So in A.B. Miller v. Abinash Chunder Dutt 4 C.W.N. 785 where the adjudication in insolvency was annulled it was held that the decree obtained by the Official Assignee was not annulled thereby and that the applicant had become assignee by operation of law as he had been appointed trustee to the estate of the late ex-insolvent. In Sowcar Lodd Govinda Doss v. Muneppa Naidu 31 M. 535 : 4 M.L.T. 341 promissory notes were taken from the debtors to an estate by the manager under the management of the Court of Wards for the latter. The Court held that they became vested in the mortgagee when the superintendence of the Court of Wards was withdrawn. Further Muthiah Chettiar v. Lodd Govinda Doss Krishna Doss : AIR1921Mad599 which was heard by a Bench of three Judges, seems to imply that Order XXI, Rule 16 is not exhaustive of every case which might come under its provisions. If that is so, it cannot be held that Rule 16 is final for all executing purposes. But, however, that may be, I am of opinion that, as a matter of fact, Rule 16 has little or no application to the present case. It seems to me that by the death of the original parties the whole matter is set at large and that it is the duty of the Court under Section 47 to decide on the merits which of the contestants is in fact entitled to execute this decree. So far then the contention of the appellant must be overruled and I now proceed to the merits of the case. There is no need to say much about these. The evidence of the petitioner's witnesses, four in number has been printed and we have been taken through it. The Judge who saw and heard the evidence relied upon all these witnesses and it seems to me that in particular if P.W. No. 1's evidence is accepted the appellant is out of Court. In fact it was hardly suggested otherwise. Plaintiff's witness No. 1 in answer to the Court says that Parasuramayya suggested to the witness that the transfer should be in Kamalanatham's name benami for him; and also that Parasuramayya suggested that Kamalanatham should be shown as the transferee as the judgment debtor was his own brother. The witness could not say who actually paid the money. But there seems to be from the evidence do doubt that the money was provided by Parasuramayya, he and Kamalanatham having settled to make the transfer for about half the decree amount, namely, Rs. 9,200. This appears to be probabilised by the evidence of P.W. No. 2 who said that just at that time Patrudu Chowdhari was preparing a fresh suit for partition as the High Court had dismissed his previous suit on a preliminary point. Plaintiff's witness No. 3 says that he is sure that Parasuramayya provided the money and I do not think there is any point to be made of his previous statement in 1908 that the consideration was paid by Kamalanatham because in his present statement he says he is not sure who actually handed over the money, but that if he said that Kamalanatham did it in 1908; it is probably right. There is, in my opinion, no reason to think that the learned District Judge came to a wrong conclusion on the merits and as I am against the appellant also on the point of law this civil miscellaneous appeal must be dismissed with costs. Civil Miscellaneous Second Appeal No. 64 of 1923 will also be dismissed.
3. Following Palaniappa Chettiar v. Subramania Chettiar : AIR1925Mad701 it is no doubt true that the real owner of a decree cannot claim under Order XXI, Rule 16 to execute it where it has been transferred in writing to the name of a benamidar for him. But once the benamidar is dead, this decision does not appear to me to be any authority for the position pressed upon us that the real owner still cannot be heard to say that the decree is his: nor, I think, have we been shown any other authority for the proposition. Once the benamidar is dead, the question necessarily arises, who is his representative or, to use the language of Order XXI, Rule 11, who is his transferee by operation of law? In the ascertainment of this, there does not appear to be any provision in the Code, or any other authority, requiring the Executing Court to exclude the real owner from coming forward and proving that the decree is his property. We have been shown nothing in support of the contention that, in such circumstances, the ostensible owner is to be regarded as the real owner for the purpose of ascertaining his representatives. There is a series of cases: Umasoondury Dossy v. Brojonath Bhuttacharjee 16 C. 347 : 8 Ind Dec. 228, A.B. Miller v. Abinash Chunder Dutt 4 C.W.N. 785 and Sowcar Lodd Govinda Doss v. Muneppa Naidu 31 M. 535 : 4 M.L.T. 341 in support of the view that, when the title of the holder of a decree or of a transferred decree terminates--when for instance the holder is an executor and Probate is revoked, when he is a trustee under a trust found to be invalid, when he is an Official Receiver, and the ad-judication is annulled the owner upon whom the title devolves may be substituted by the Executing Court. That Court is clearly bound, under Section 47(3), Civil Procedure Code, to determine who in this wide sense of the term is the decree-holder's representative. To quote Mookerjee, J, in Ajodhya Roy v. Hardwar Ray 1 Ind. Cas. 213 : 9 CRI.L.J. 485, 'the term 'representative' as used in, Section 244 of the Civil Procedure Code of 1882 means not merely the legal representative in the sense of the heir, executor or administrator, but includes any representative in interest, that is, any transferee of the interest of the decree-holder....'
4. The further question then is whether, when a benamidar dies, the real owner is his representative or transferee by operation of law. Some argument has been addressed to us to show that the benamidar was in the position of a trustee, and that, upon the death of a trustee, and until another trustee is appointed, his natural heir succeeds to the trust. That may be true of a trust created under the Trusts Act, but I do not think that an ordinary benami title is governed by this rule. If the real owner sued to establish his title to the property, it is indisputable that he would be entitled to a decree declaring it; and, if that be so, he may equally establish his title in proceedings under Section 47, Civil Procedure Code. In my view, therefore, the lower Court was right in deeming itself competent to go into this question.
5. On the merits it appears to me that there is a good deal of substance in the argument that Parasuramayya had considerable motive for desiring to acquire this decree whereas it would have been a foolhardy action on the part of the benamidar Kamalanatham. The circumstances are sufficiently explained by one of the Vakils P.W. No. 2, namely, that Parasuramayya himself owned only 4/5ths of the property and that the remaining 4/5th was under litigation between him and his brother. It was natural in those circumstances that Parasuramayya should desire to acquire the decree held by his brother's mortgage. The evidence relating to the sources from which the money was obtained is not in itself extremely cogent but if the evidence of the Vakil P.W. No. 1 is accepted it is conclusive upon the question of benami, because he says that the parties clearly and unambiguously gave him to understand that that was the nature of the transaction. It is true that a considerable interval, some 16 years elapsed between that transaction and the date of his deposition, but that is not a reason for rejecting his evidence. There is further the testimony of the attestors, P.Ws. Nos. 3 and 4. It is said that P.W. No. 3's evidence is to be considerably discounted by the circumstance that he said in Ex. II Kamalanatham paid the money. But granting that the transfer was a benami transaction, and he desired to speak in support of it, he could have said nothing else. The learned District Judge has pointed out that the alleged benamidar never during the course of the 8 years that he lived after acquiring the decree attempted; to execute it and in view of this consideration and other considerations which I have mentioned, I think the District Judge was clearly right in holding that it was a benami transaction. I agree accordingly with the orders proposed by my learned brother.