1. These two suits have had a chequered career. They were instituted in October 1909 and the judgment of the trial Court was delivered in September 1910. On appeal to this Court a' remand order was made in May 1916. The successor of the District Judge who heard the appeal on remand delivered his judgment in February 1918 upholding the decision of the trial Court, except in respect of certain properties, namely, plots Nos. 1 to 13 of schedule 'Ka'. The defendants Nos. 1 to 4, 6 to 9 and 11 to 13 are the appellants before us. The plaintiffs are the three sons of one Ramdayal Mandal. Two of them instituted one suit and the third the other. The properties in suit belonged to him. The learned Subordinate Judge who tried the original suits found that Ramdayal became indebted and in execution of a decree against him one Pratap Chandra Hazra purchased these properties but Ramdayal persuaded him and his brother, who was joint with him, to return those properties in consideration of a payment of Rs. 2,450 Ramdayal, however ever, had not sufficient - money and approached defendant No. 1, a creditor of his, and defendant No 2, an intimate friend, to help him. These defendants advanced Rs 1676.80 as a loan and Ramdayal himself paid Rs. (sic), and a kobala was obtained from the auction purchasers, in the names of those defendants on the 16th November 1897. After the purchase Ramdayal got possession of the properties and remained in possession for about one year, bat as he could not pay the interest on the sum advanced by the defendants, he put them in possession of the properties to enable them to take the profits until repayment of the debt due. The trial Court found that at the time of the hearing Rs. 1,569-11 9 were due to the defendants and gave the plaintiffs a decree for possession conditional on payment by them of the said sum within three months. He further held that the plaintiffs were not entitled to a decree for plots Nos. 1 to 13, which were sold for arrears of rent, as such arrears were for an earlier period, although the sale took place after the date of the kobala in dispute and the defendants were not liable to pay such arrears, and although they themselves purchased the plots upon such sale, they could not according to him be said to have purchased them, as trustees for Ramdayal or the plaintiffs.
2. On appeal the first District Judge held that the plaintiffs' suit must be looked upon as based, firstly, on a trust or, secondly, on a usufructuary mortgage created at or about 1304 and inasmuch as, according to him neither the trust nor the usufructuary mortgage could be proved without a deed, he dismissed the suits.
3. The plaintiffs then appealed to this Court, which held that the learned Judge had fallen into an error inasmuch as the plaintiffs had brought their suits on title, and not on the basis of a trust or of a mortgage and added that of the District Judge had gone into the fact and found title in favour of the plaintiffs, it was obvious that the defendants could not resist their claim to possession 'unless by advancing and establishing some such plea as limitation, mortgage or other,' They remanded the appeals that all necessary facts might be ascertained.
4. The appeals upon such remand were heard by a new District Judge who has practically confirmed the findings of the trial Court. He finds title in the plaintiffs and held that inasmuch as the suit was brought within 12 years of the denial of their title or within -12 years of the kobala,- they were entitled to succeed. He has also held that the plaintiffs are entitled to plots Nos. 1 to 13, inasmuch as he finds that there are no materials to show whether any part of the arrears sued upon fall due after the defendants had entered into possession. The defendants, he held, were creditors in possession in the same way as usufructuary mortgagees and, therefore, they ware in the position of trustees, and that they should have paid the arrears and could not take advantage of the situation. He found that they had paid Rs. 68 for purchasing those plots and has allowed them credit for that sum. He has further allowed the plaintiffs credit for Rs. 105 as value of some paddy which had admittedly been give by them to the defendants. Taking those two sums he found that Rs 1,522 11 9 was due to the defendants. This amount, however, should be Rs. 1,532-11-9. With that modification he upheld the decree of the first Court.
5. It is argued before us that the learned Judge has not arrived at 'a proper conclusion having regard to the following facts, namely, that money was advanced by the defendants, that the conveyance was in their name, that the deed was in their possession and that admittedly at the time of the suit they were in possession of the property and that, therefore, it ought to have been held that they were the real purchasers. We are unable to take that view. It has been distinctly found by both Courts that the defendants advanced some money, no doubt the larger portion of the prise, but the money was advanced by them as creditors and not by way of purchase. It has also been distinctly found that the document was taken in the names of the defendants to safeguard Ramdayal who was then heavily indebted, that Ramdayal effected sales of gone of the properties covered by the kobala and repaid a portion of the debt due to the defendants, that he was actually in possession for about one year after the date of the purchase and that he subsequently made over possession to the defendants to repay themselves and upon such repayment. to give possession back to Ramdayal Ramdayal also was in possession of the sale certificate which had been granted to Protap Hazra; that it was an untrue suggestion made by the defendants that the plaintiffs had fraudulently obtained possession of the sale certificate Contemporaneous documents of sale show that money was obtained and applied for purposes of discharging the debt due to the defendants and that there is also an entry in Protap Hazra's book showing that Ramdayal was the real purchaser. There is no doubt from the facts found that the defendants were merely creditors to the extent of the advance made by them and when they were given possession of the. properties by Ramdayal, they were in the position of usufructuary mortgagees. Reliance was also placed upon a kabuliyat for the homestead land which was executed by Ramdayal in favour of the defendants. Both Counts have found that the kabuliyat was a paper transaction and, therefore, of no value. It has also been found that no creditor was actually defeated by this benami transaction.
6. It has next been argued that if anything, the circumstances show that there was an agreement between the parties that upon repayment of the money the defendants were to reconvene the proper-ties to Ramdayal and that inasmuch as the defendants had refused to make over possession in Magh 1305 (February 1901) the> suits were barred by limitation, as they are really, though not in name, suits for specific performance of a contract and are governed by Article 113 of the Limitation Act. We do not think they are such suits. They are merely suits to recover possession. As they were instituted within 12 years of the date of refusal on the date of. the kobala, they are within time. Upon the facts of these oases there is no doubt whatever that the defendants are in the position of creditors in possession, and there is a resulting trust go far as these properties are concerned, and that, therefore, the plaintiffs are entitled to get back the properties upon payment of the amount due to the defendants. It was argued that it was not open to the plaintiffs to prove that the consideration was paid in the manner above stated, as their evidence contradicted the recital of payment as contained in the kobala. Even the Statute of Frauds does not affect, indeed expressly excepts, trusts arising by operation or construction of law, and it has been held in England that it is quite competent for the real purchaser to prove the payment of the purchase money by parol, even though it be otherwise expressed in the deed. It was lastly argued that the learned Judge was wrong in respect of plots Nos. 1 to 13. We are of opinion that he was not even, if it be conceded that the arrears were for a prior period. It is only necessary to refer to Section 76 (c) of the Transfer of Property Act. The decision in this case also finds strong support from Monappa v. Surappa 11 M. 234 : 4 Ind. Dec. (N.S.) 163, where a similar order was made by the learned Judges in practically similar circumstances.
7. The appeals, therefore, will be dismissed with costs.