1. In the suit out of which this appeal arises, the plaintiff alleged that the property in question, which had originally belonged to her father and had been sold in execution of a decree against him, had been purchased by him at the auction sale in the name of one Sridhur Mondul and had afterwards been mortgaged by him in the name of Sridhur Mondul to the defendant Srimonto Joardar. As against that defendant, she sought to recover possession of the properties in question on the allegation that the mortgage debt had been more than satisfied out of their profits. She also joined the heirs of Sridhur Mondul as defendants in order to establish as against them the benami character of the auction purchase made ostensibly by Sridhur, and consequently her own right as heiress to her father to the extent of one half of his estate.
2. One of the grounds of defence was that the suit was not maintainable in view of the provisions of Section 317 of the Code of Civil Procedure. The Court of First Instance held that the suit was maintainable and decreed the plaintiff's claim, but the Lower Appellate Court, taking the contrary view, dismissed the plaintiff's claim, and hence she has preferred the present second appeal.
3. The question before us relates to the construction of the first sub-section of Section 317 of the Code of Civil Procedure, which is as follows: 'No suit shall be maintained against the certified purchaser on the ground that the purchase was made on behalf of any other person, or on behalf of some one through whom such other person claims.'
4. Does the statutory protection afforded to the certified purchaser extend to a person claiming through or under him, as in the present case, his heirs and his mortgagee
5. The Court of First Instance relied on the case of Buhuns Koonwur v. Lalla Buhoree Lall (1872) 14 Moore's I.A., 496; 10 B.L.R., 159; 18 W.R., 157. The judgment of the Lower Appellate Court is not perfectly clear, but it would seem that the learned Judicial Commissioner overlooked the case as against the heirs of Sridhur Mondul and considered it only as against the mortgagee defendant. He says: 'The defendant is in the position of Sridhur, and if no suit would lie against Sridhur or his representatives by inheritance, I do not see how a suit can lie against his representative by transfer.'
6. It would thus appear that the Judicial Commissioner, losing sight of the fact that he had to decide the question with regard to Sridhur's heirs, took for granted that it could not have been decided otherwise than adversely to them, and argued from thence that it must be decided adversely to the mortgagee.
7. I think that the weight of authority is against the assumption and the decision alike of the Lower Appellate Court.
8. In the case relied upon by the Court of First Instance the precise point now in question was not before their Lordships of the Privy Council for decision. The question in that case was whether the fact of a plaintiff's title being certified as auction-purchaser was conclusive by Section 260 of Act VIII of 1859 (which corresponded to Section 317 of the present Code of Civil Procedure) to debar the defendant, who was in possession from pleading that he was the real purchaser, and that the purchase was made benami for him by the certified purchaser. The grounds on which that question was decided in the negative were that benami transactions were not per se illegal; that the enactment in Section 260 of Act VIII was clear and definite; that there was nothing from which it could be inferred that more was meant than was expressed; that it was 'confined to a suit brought against the certified purchaser;' and that the object which the framers of the Code appeared to have had in view was to prevent judgment-debtors becoming secret purchasers at the judicial sales of their property and to empower the Court selling under a decree to give effect to its own sale without contention on the ground of benami purchase by placing the ostensible purchaser in possession of what it had sold, and of insuring respect to that possession by enacting that any suit brought against him on the ground of benami shall be dismissed.'
9. That case seems to be so far in point in the case now before us in that (1) it lays down that Section 260 of Act VIII must be construed strictly and literally, and (ii) what their Lordships regarded as the object of the section would not apply to the facts of a case like the present.
10. The case of Buhuns Koonvar v. Lalla Buhoree Lall was followed by their Lordships of the Judicial Committee in a somewhat similar case that of Lokhee Narain Roy Chowdhry v. Kallypuddo Bandopadhya (1875) I.L.R.,21. A., 154; 23 W.R., 358, in which the earlier case was referred to as laying down among other things that Section 260 of Act VIII 'should be construed strictly and literally.'
11. There is a case decided by the Madras High Court since the present case, was dealt with by the Courts below which is exactly in point. In the case of Theyyavelan v. Kochan (1879) I.L.R., 21 Mad., 7, it was held that the protection given to a certified purchaser could not be transferred by him, and accordingly a person taking an assignment from him could not under Section 317 of the Code of Civil Procedure object to the maintainability of a suit to recover the property purchased on the ground that the purchase was made benami.
12. There is also a recent decision of this Court in the case of Raj Chunder Chuckerbutty v. Dina Nath Saha (1898) 2 C.W.N., 433, the principle of which is applicable to the present case, though the provision of law with which, it dealt was not Section 317 of the Code of Civil Procedure, but an analogous provision in the Revenue Sale Law, namely, Section 36 of Act XI of 1859. It was held by a majority of two to one of the Judges who constituted the Bench which tried that case in appeal that the statutory protection afforded by Section 36 to the certified purchaser at a revenue Rule did not extend to his assignee. The two Privy Council cases noticed above were referred to, not as being directly in point, but as indicating clearly that a section of the nature of Section 36 of Act XI of 1859 must be construed literally, and as throwing a light upon the principle applicable to the case then under decision. It was held that regard being had to the penal character of Section 36, a Court construing it ought not to go beyond the strict letter of the language used, or to put a construction upon that language which would have the effect of materially extending the operation of the section. At page 447 of the report the learned Chief Justice says in his judgment: 'In a section of this class it is, in my judgment, safer to adhere to the words actually used than to import into the section words which are not there. The section ought to be construed strictly and literally. Doubtless this construction may lead to anomalies, e.g., that the certified purchaser cannot be sued though his heir may, but the existence or possibility of such anomalies ought not, I conceive, to warrant us in reading the words otherwise than literally.' These observations appear to me to apply with equal force to the case now before us.
13. On the whole, having regard to the authorities which I have noticed, I must hold that the present suit is not barred by the provisions of Section 317 of the Code of Civil Procedure.
14. The decree of the Lower Appellate Court is set aside and the appeal is remanded for disposal on the merits. Costs will abide the result.
15. I agree. In the case of Raj Chunder Chuckerbutty v. Dina Nath Saha (1898) 2 C.W.N., 433, which has been referred to, I put a different construction upon the analogous provision in the Revenue Sale Law; but that construction was not adopted by the Appellate Bench, the decision of which I am of course bound to accept. There is certainly no ground for putting a wider construction on the terms of Section 317 of the Civil Procedure Code.