1. The facts which gave rise to the present litigation were briefly these: The plaintiffs who may be described as the Pals and two brothers Mahim Ghatak and Ramesh Ghatak and one Radharaman all got decrees against one Izzat Bux and when in an execution proceeding the property in suit which belonged to Izzat was put up to sale it was purchased in the name of Ramesh and Mahim alone in pursuance of an agreement that the property would belong to Mahim and Ramesh in 8 annas and to the Pals and Radharaman in 8 annas Mahim getting a 4 annas share, Ramesh another 4 annas share, the Pals 2/3rds of 8 annas and Radharaman l/3rd of 8 annas the parties having contributed in these shares to the fund with which the property was purchased at the sale. This took place in the year 1915 and the parties were put in joint possession of the property in 1918. Thereafter Ramesh sold three-fourths of his share in the property to defendants 1 to 7 in the name of defendant 9 and one-fourth share to defendant 10 stating, however, in the Kobalas that were executed that his share in the property was 8 annas. On these facts the plaintiffs the Pals instituted the suit that has given rise to the present appeal for declaration of their title to a one-third share in the property (being 2/3rd of ) and for recovery of possession of the same after partition. Mahim Ghatak who was defendant 11 in the suit supported the plaintiffs' case. The plaintiffs' claim, however, was resisted by defendant 9 only none of the other defendants having filed any written statement in the case.
2. The main grounds on which the plaintiffs' claim was resisted were two in number and the two grounds were: (1) that the suit was not maintainable in view of the provisions of Section 66, Civil P. C, the property having been purchased in the name of Mahim and Ramesh and Mahim and Ramesh having been the only certified purchasers; and (2) that defendant 9 having purchased a six annas share in the property from Ramesh who was the ostensible owner of one half of the property for value without notice of the rights of the other people he (defendant 9) was entitled to a six annas share Under Section 41, T. P. Act.
3. Both the Courts below found that the arrangement before the purchase at the auction-sale in 1915 has been as stated by the plaintiff, that is, that Mahim should get share, Ramesh share, the plaintiffs l/3rd share and Radharaman l/6th share of the property and that they had contributed to the purchase money in these shares. The trial Judge held also that Section 66, Civil P. C., was no bar to the suit and holding in addition that defendant 9 was not a bona fide purchaser without notice found for the plaintiffs and made a preliminary decree for partition. Against that decision of the trial Judge, an appeal was taken by defendant 9 to the appellate Court and the learned District Judge set aside the decision of the Court of first instance and holding that Section 66 was a bar to the suit dismissed the suit in its entirety finding also at the same time that defendant 9 was a bona fide purchaser for value without notice. The plaintiffs are the appellants before us. The chief controversy before us had centred round the question as to the applicability or otherwise of Section 66 to the present case.
4. On behalf of the appellants it was contended that Section 66 would not operate as a bar and in support of this contention reliance was mainly placed on the decisions in Bodh Singh Doodhuria, v. Ganesh Chunder (1873) 12 Ben LR 317, Ganga Sahai v. Kesri AIR 1915 PC 81 (at p. 182 of 42 I A), Achaibar Dube v. Tapasi Dube (1907) 29 All 557 and Vishwa nath Dhondiraj Gayadhain v. Pandhari nath Ganesh : AIR1926Bom525 . Leaving aside from our consideration for the present the case in 50 Bombay none of the other three cases cited would, in my opinion, help the plaintiffs-appellants in the present case. In Bodh Singh's case (1873) 12 Ben LR 317 where a property was purchased at a Court sale by a member of a joint Hindu family in his name but with the family funds the other members were held to be entitled to sue him for a declaration that the purchase was made on behalf of the whole family though the certificate of sale stood in his name. In that case if their Lordships of the Judicial Committee held that Section 66 was no bar to the suit, they held so on the ground that by the operation of law the members of a joint Hindu family are entitled to treat as part of their common property an acquisition, howsoever made, by a member of the family in his sola name, and not because there had been any private agreement or undertaking as was the case in the case before us.
5. Our attention was drawn to the observations of their Lordships of the Privy Council in Ganga Sahai v. Kesri AIR 1915 PC 81 (at p. 182 of 42 I A) to the effect that the provisions of Section 66 are designed to check the practice of making what are known as benami purchases at execution sales for the benefit of the judgment-debtors and in no way affect the title of persons otherwise beneficia1ly interested in the purchase. But the 42 I. A. case was a case of a joint mortgagee decree-holder against the other mortgagee decree holder who in execution of the joint mortgage decree purchased the mortgaged property in his own name. If Section 66 was in that case held to be inapplicable it was not because the co-mortgage decree-holders had come to an agreement or undertaking that the property would be purchased in the name of one of them though it would be the property of both but because the application for execution was made by one of the joint decree-holders subject to the rights of the decree holder. The rights of the other decree-holder accrued not from any agreement or undertaking between the two joint decree holders but from the operation of law as embodied in Section 231 of the old Civil P. C., corresponding to Order 21, Rule 15 of the Code, of 1908.
6. The learned advocate for the appellant next drew our attention to the observations of Richards, J., in the case in Achaibar Dube v. Tapasi Dube (1907) 29 All 557 which are quoted with approval in Viswanath Dhondiraj v. Pandhari Nath Ganesh : AIR1926Bom525 . What was laid down in those observations was that the provisions of Section 66 do not apply when the parties stand in the relationship of partners and one of the partners purchases the property in his own name with the partnership funds. Mr. Sen for the respondent in a way conceded that Section 66 would be no bar to a case of partnership. But his contention was that the present case was not a case of partnership. This contention seems to me to be well founded. The facts of the case are no doubt practically on all fours with the facts of the case in Viswanath Dondiraj v. Pandhari Nath Ganesh : AIR1926Bom525 where it was held that Section 66 was inapplicable on the ground that the case was a case of partnership. But if one would look to the definition of the word 'partnership' as contained in Section 299, Contract Act with Ill. (b) of the same there can be no manner of doubt that the present case was not a case of partnership. None of the cases on which so much reliance was placed on behalf of the appellant is therefore in my judgment of any avail to him. Indeed there are some observations in the Bodh Singh Dhuduria v. Ganesh Chunder (1873) 12 Ben LR 317 which in my opinion, go against the appellant's case. In that case their Lordships of the Privy Council observed that the provisions of Section 66 cannot be taken to affect the rights of members of a joint Hindu family who by the operation of law and not by virtue of any private agreement or undertaking are entitled to treat as part of their common property an acquisition however made, by a member of the family in his sole name, if made by the use of the family funds. This observation containing as it does the ex-pression 'not by virtue of any private agreement or undertaking' lays down to my mind, by implication that the operation of Section 66 cannot be ousted by the existence of any private agreement or undertaking as was the case in the case before us. I would therefore hold agreeing with the learned District Judge that Section 66 was applicable to the present case.
7. The learned District Judge dismissed the plaintiffs' suit in its entirety. With this, in the circumstances of the case, I am unable to agree. The plaintiffs claimed two-third share of 8 annas in the property on the allegation that 8 annas belonged to Ramesh and Mahim jointly and the remaining 8 annas to the plaintiffs (the Pals) and Radharaman in the proportion of 2 to 1. This claim of the plaintiffs was opposed by Ramesh's successor alone on the allegation that Ramesh had an 8 anna share and Mahim had the remaining 8 annas. Ma-him however did not claim anything more than 4 annas. There was therefore no dispute as regards 5 annas and there was no resistance of the plaintiff's claim to 2/3rds so far as this 4 annas share was concerned.
8. I would therefore sat aside the decree of the learned District Judge whereby the plaintiff's suit was dismissed in its entirety and direct that the plaintiffs' title to the property to the extent of 2/3rds of 4 annas or l/6th share be declared and that they recover possession of that share of the property after partition or in other words, I would uphold the decree of the trial Court with this modification only that the plaintiffs' share in the property will be reduced from l/3rd to l/6th. In the circumstances of the case I would make no order as to costs in this Court.
9. I agree.