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Hari Gobind Adhikari Vs. Akhoy Kumar Mozumdar and ors., Minors, by their Mother and Guardian Chandratara and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1889)ILR16Cal365
AppellantHari Gobind Adhikari
RespondentAkhoy Kumar Mozumdar and ors., Minors, by their Mother and Guardian Chandratara and ors.
Cases ReferredCoomar Roy Chowdhry v. Gooroo Churn Sein
Excerpt:
parties - right of suit--benamidar--suit for declaration of title to, and for possession of, immoveable property--disclaimer of real owner. - .....suit upon the ground that he had no right to maintain it, he being merely a benamidar for the real owner,'defendant no. 112. the objection urged in second appeal is that as defendant no. 11 is a party to this suit, and has disclaimed all interest in the subject-matter thereof, the defect in the framing of the suit and in the plaintiff's title is thereby cured. it is also contended upon the authority of the case of sitanath shah v. nobin chunder boy 5 c. l e., 102 that the courts below ought, if necessary, to have made the defendant no. 11 a co-plaintiff with the appellant.3. we do not think that these contentions are sound. the finding arrived at by the courts below is that the plaintiff has no right to the property in suit, and is merely a benamidar for defendant no. 11. that being.....
Judgment:

Banerjee, J.

Banerjee, J.

1. This is an appeal by the plaintiff against the judgment of the lower Appellate Court, affirming that of the Court of first instance, which dismissed the plaintiff's suit upon the ground that he had no right to maintain it, he being merely a benamidar for the real owner,'defendant No. 11

2. The objection urged in second appeal is that as defendant No. 11 is a party to this suit, and has disclaimed all interest in the subject-matter thereof, the defect in the framing of the suit and in the plaintiff's title is thereby cured. It is also contended upon the authority of the case of Sitanath Shah v. Nobin Chunder Boy 5 C. L E., 102 that the Courts below ought, if necessary, to have made the defendant No. 11 a co-plaintiff with the appellant.

3. We do not think that these contentions are sound. The finding arrived at by the Courts below is that the plaintiff has no right to the property in suit, and is merely a benamidar for defendant No. 11. That being so, and his prayer in the plaint being for possession upon declaration of his right by purchase in respect of the property in suit, we do not see how the fact of the real owner having been made a defendant in the case can entitle the plaintiff to maintain this suit. Then as to the real owner's disclaimer in his deposition in this suit, we do not think that that is sufficient to give the plaintiff any right to maintain this suit. Such a right must have come into existence before the date of the institution of this suit^ Now, the plaintiff -does not allege that either by any bill of sale or by any virtual transfer from the rightful owner, the right to the property in suit has been vested in him. His case from the beginning was that he was the real owner, and that case has been found to be false. A statement by any party to the suit subsequent to the date of its institution cannot give the plaintiff a title. IE any authority was needed for such a proposition, we .might refer to the observations of the Judicial Committee in the case of Amirto Lal Base v. Rajonee Kant Hitter 15 B. L. E. : 10 ; 23 W. E., 214 .

4. Then it has been contended that the case cited is sufficient authority in favor of the plaintiff, appellant. We do riot think that that is so. That case is distinguishable from the present. That was a case upon a mortgage deed, and was between one of the parties to that deed, and the assignee of the other. It [367J does not appear whether in that case the beneficial owner was made a defendant originally; and this Court, without deciding the 'question whether the benamidar could maintain the suit, simply remanded the case to be decided after making the beneficial owner a co-plaintiff. As pointed out by the Judicial Committee in Gopeeknsto Gossain v, Gungapersaud Gossain 6 Moore's I. A., 53, at p 72 a distinction has sometimes been made between suits upon bonds by benamidars and suits for recovery of land upon title; and in this latter class of cases, it has always been held that a benamidar is not entitled to maintain the suit. To this effect is the authority of the case of Prosunno Goo-mar Roy Chowdhry v. Gooroo Churn Sein (3 W. E., 159) a case which is not dissented from but only distinguished by Sir Richard Couch in the late case of Ram Bhurosee singh v. Bissesser Narain Mohata 18 W.R. 454. And to the smae effect is the case of Fuzeelun Beebee v. Omda Beebee 10. W.R. 469 : 11 B.L.R. 60 note. As we are unable to distinguish this case from the case of propsunno Coomar Roy Chowdhry v. Gooroo Churn Sein 3.W.R. 159 and as the other cases that are cited by the appellant are clearly distinguishable from the present, we must hold as well upon reason as upon authority that the conclusion arrived at by the Courts below is correct. We therefore think that the judgment and the Lower Appellate Court ought to be affirmed and this appeal dismissed with costs.


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