1. This is an appeal by the plaintiff from the decision of the Subordinate Judge of Dinajpur dated 29th July 1926 which affirmed a decision of the Munsif of the same district dated 28th November 1924. The plaintiff instituted the suit for a declaration of her title to and recovery of possession of the suit lands on the allegation that on 25th Baisakh 1319 B.S. the plaintiff purchased from her mother the suit lands for a sum of Rs. 299. Plaintiff further stated that her husband Amir and pro-forma defendant 2, Aswini, are step-brothers and that Aswini mortgaged the suit properties with defendant 1 who got a decree on the mortgage bond and took possession of the disputed lands through Court and afterwards reaped the paddy grown by the plaintiff on the disputed lands in the month of Agrahayan prior to the institution of the suit. Plaintiff stated that this gives rise to the cause of action for this suit.
2. The defence of the defendant 1 in substance was that the plaintiff's mother had sold the suit lands to one Esum Ali and that later on Aawini, defendant 2, paid the consideration money to Esum Ali and took a reconveyance in the name of plaintiff's mother (the reconveyance was for himself and his brother Amir) and that in order to keep their title safe, Aswini had the deed of sale executed in the name of the plaintiff, and, although the plaintiff was the benamidar, the purchase was really for the benefit of himself and his step-brother Amir.
3. The Court of first instance held that the defence had established a case that the purchase in plaintiff's name was really for both Amir and Aswini and as in the mortgage suit which was instituted in 1916 there was decree against both Amir and Aswini and as defendant 1 purchased the disputed lands at a sale in execution of the mortgage decree, the plaintiff had no title to oust defendant 1 from the disputed lands. The Munsif accordingly dismissed the plaintiff's suit.
4. The lower appellate Court affirmed the judgment of the Munsif but came to somewhat different conclusions with regard to certain matters in controversy. The lower appellate Court found in disagreement with the Munsif that although the mortgage suit was filed against both Amir and Aswini, Amir contested the suit and the mortgage suit was dismissed as against him and what was sold in execution of the mortgage decree was the interest of Aswini alone. The lower appellate Court further found that the plaintiff was the benamidar of Amir and Aswini in the matter of her purchase from her mother in the year 1319 B.S. It also found that as the plaintiff was the benamidar of these two step-brothers, she had no title to the lands in suit and could not evict defendant 1 who had bought the interest of Aswini in execution of his mortgage decree.
5. Against the decision of the Subordinate Judge, a second appeal has been taken to this Court and the only point taken by the learned vakil for the appellant is that on the findings of the lower appellate Court, the plaintiff is entitled to a decree in respect of the half share of the lands in dispute and is entitled to recover joint possession in respect of the same with defendant 1. It is argued that on the findings of the lower appellate Court the plaintiff was not the beneficial owner in respect of the disputed lands but she was the benamidar both for Amir and Aswini and as there is nothing to prevent a benamidar to successfully sue for recovery of possession from a trespasser although the beneficial owner is not a party to the suit, the lower appellate Court should have decreed the suit in respect of the share of Amir and in the absence of any evidence to the contrary it must be held that Amir and Aswini were interested in the property in equal shares and, therefore, there ought to have been a decree for joint possession in respect of Amir's half share. I think this contention of the learned vakil for the appellant is well founded and must prevail. It is now firmly established that so long as a benami transaction does not contravene the provisions of the law, the Courts are bound to give it effect. The benamidar has no beneficial interest in the property or business that stands in his name; he represents the real owner and so far as their relative legal position is concerned, he is a mere trustee for him. Their Lordships of the Judicial Committee say in the case of Gur Narayan v. Sheo Lal Singh A.I.R. 1918 P.C. 140, that they find it difficult to understand why an action cannot be maintained in the name of the benamidar in respect of the property although the beneficial owner is no party to it. Their Lordships point out that the bulk of judicial opinion in India is in favour of the proposition that in a proceeding by or against the benamidar, the person beneficially entitled is fully affected by the rules of res judicata and with this view of the Indian Courts their Lordships of the Judicial Committee concurred.
6. I think, therefore, that it was competent to the benamidar who is the plaintiff in the present case to maintain a suit for recovery of possession of the disputed property against the trespasser. She was the benamidar for Amir and Aswini; Aswini's interest passed by the mortgage sale and defendant 1 is certainly entitled to retain possession of his interest but there is nothing to justify defendant 1 to retain possession of the other half share of Amir, although what passed by the mortgage sale appears from the decree in that suit was the interest of Aswini alone and that is also the finding of the lower appellate Court.
It is argued by the learned vakil for the respondent that as this question was not specifically raised in the Court of first instance and as there is no evidence with regard to the extent of the shares of Amir and Aswini, the case ought to be sent back with an issue as to the extent of their shares. I asked Mr. Guha if there was any suggestion on the record anywhere that the shares of these two brothers were unequal or that they did not possess it in equal shares. In the absence of any such evidence, the ordinary presumption is that these two brothers possessed the disputed land in equal shares.
7. The result is that the decrees of the Courts below dismissing the suit are set aside and the plaintiff's suit decreed to the extent of half share in the disputed lands, and it is ordered that she do recover joint possession of the same with defendant 1. There will be no order as to costs.