Wilson and Beverley, JJ.
1. Two points have been raised before us upon this appeal. The first is this: It is said that the plaintiffs asked only for a declaratory decree in the first instance. The lower Appellate Court has held that they are not entitled to a mere declaratory decree because, being out of possession and therefore entitled to ask for possession, they could not, under Section 42 of the Specific Relief Act, have a mere declaratory decree. It is argued that they ought not to have had any relief at all, whereas the lower Appellate Court has given a decree declaring their title and giving them possession--a decree which it is said they never asked for.
2. The answer to that seems to us to be this. In their plaint it is true they asked specifically only for a declaration of their title. They did not ask for confirmation of possession in the form which is so often used in the country; but for declaration of title arid for any other relief which they might be deemed entitled to.
3. This no doubt is very general, but subsequently, when the difficulty was pointed out, the plaintiffs put in a petition defining what was vague before and specifically asking for possession. In the first Court that petition was rejected, because, from the view that the Court took of the facts, it was unnecessary to entertain it, but in the view taken by the lower Appellate Court of the facts it was necessary. It seems to us clear that the plaintiffs have asked with sufficient clearness for a declaration of title and for possession.
4. The second point raised is one of more substance.
5. The plaintiffs claim under an execution sale, against the estate of one Nundo Lal, and they claim to have purchased the property in question at that sale as the property of Nundo Lall. The property had been purchased by Nundo Lall at a sale held under Act XI of 1859, and he purchased it, not in his own name, but in the name of his mother Sonamoni, and the sale certificate was taken out in her name.
6. Now Section 36 of the Act says that 'any suit brought to oust the certified purchaser on the ground that the purchase was made on behalf of another person, not the certified purchaser, or on behalf partly of himself and partly of another person, though by agreement the name of the certified purchaser was used, shall be dismissed with costs.'
7. This suit, so far as the appeal is concerned, may be taken as a suit against Sonamoni, and it is said that by reason of chat section the suit to oust her will not lie.
8. We do not think that this contention is well founded. The object of that section appears to be this, that with the view of discouraging benami purchases at sales of this nature, the Legislature says that a suit to oust the benamidar shall not lie. The section evidently contemplates this; that the purchaser having elected to make his purchase in a benami name, then wishes to come into Court to have it established that the purchase was a benami one and to have the benamidar ousted by the Court, and that appears to be what the Legislature intends to prohibit.
9. But in the vast majority of benami transactions no controversy ever does arise between the benamidar and the real owner. The real owner is left in possession and derives all the benefit of the estate notwithstanding that he chooses to run all the risks incident to that method of holding property, and when the real owner is thus left in enjoyment of his property, and the benamidar raises no dishonest claim against him, it would be a departure from the principle on which these sections are framed and would introduce instead of checking fraud and dishonesty, if we were to construe the section as meaning that where a creditor of the real owner has to bring, the property to sale, this sham title of the benamidar may be set up against the purchaser. That would be making this provision, which was intended to discourage fraud an instrument of fraud.
10. This section and similar sections have frequently been before the Courts; some of the cases I am about to cite were dealt with upon this section, others upon the sections analogous to it. But all seem applicable to the section we have to deal with.
11. The earliest of these cases is Ameeroonnissa Bibi v. Benode Ram Sein 2 W.R. 29. It is there said: 'As to Fakirpara it was bought in the name of the son of Afzul Ali at a sale under Act I of 1845; and it is contended before us that, under Section 21 of that Act, a judgment-creditor of Afzul Ali is precluded from attaching the property in execution of a decree against him. But the section in question was not intended to protect purchases made in the name of third parties from the operation of decrees against the persons beneficially entitled to the purchased property.'
12. Here there is an express decision that, in such a case as the present, the property may be attached and sold as the property of the real owner; and it certainly would be a monstrous thing if it might be attached and sold as the property of the real owner, and yet the purchaser under such attachment and sale should take no title.
13. The next case to which I think it is necessary to refer is Tara Soonduree Debee v. Oojul Monee Dasee 14 W.R. 111. I refer to that case, although it is not so nearly in point as some others, because it seems to indicate the real principle which lies at the root of the matter. At page 111, it is said: 'The Full Bench decision in Bihuns Kunwar v. Behari Lall 3 B.L.R.F.B. 15 : 11 W.R.F.B. 16, has been quoted to us as a precedent in this case. The ruling laid down in that case was that where a certified purchaser claimed to recover possession from a party in possession, the party in possession could not plead that the certified purchase was merely a fictitious purchase for him. But the decision went on to say that if the benamidar should acknowledge the purchase to have been made benami and waive the right conferred on him by Sections 259 and 260, and give up possession to the real owner, such act would probably amount to a transfer of the title as well as of the possession to the real purchaser; and then the decision goes on to hold that on the facts of that case there was no difficulty arising from this ruling in the Full Bench case.'
14. I refer to this case as showing that what the section was intended to prohibit were controversies and claims between the real owner and the benamidar which the real owner may seek to enforce by suit against the benamidar.
15. Then there is a case in the same volume at page 372 Brijo Beharee Singh v. Shah Wajed Hossein 14 W.R. 372. That case seems to be on all fours with the present, with one difference, namely, that in that case the plaintiff was the person claiming under the benamidar, and it was held that the benami character of the transaction might be set up as a defence to that suit, the defendants being the purchasers at a sale in execution of a decree against the real owner.
16. Then there is the case of Bukshee Booniadi Lal v. Bukshee Dewkee Nundun Lall 19 W.R. 223 in which it was held that the fact of a sale certificate being taken in the name of a benamidar did not preclude the raising afterwards of any question as to the real title. That was the case of a sale certificate taken in the name of one member of an undivided family, and it was held that that did not preclude enquiry afterwards, and a finding that the property so purchased was family property purchased in the name of one member of the family.
17. Then there is also a case to which we have been referred Sohun Lall v. Lala Gya Pershad 6 N.W.P. 265 where dealing with an analogous section to the present it was held that Section 260 of the then Procedure Code 'does not apply to a case such as the one under appeal; for if it did, it would cause great injustice by allowing the judgment-debtor to retain possession of property which in equity ought to be given up to the decree-holder; and as shown above, such a procedure would be opposed to the object of the Code.'
18. These seem to be the authorities on the matter and they all point one way.
19. The result is that, in our opinion, the objection founded on Section 36 is not well founded. The appeal, therefore, fails on all points and will be dismissed with costs.