Skip to content


Fazlur Rahman Vs. Sardar Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1928Cal338
AppellantFazlur Rahman
RespondentSardar Ali and ors.
Cases ReferredMakarali v. Sarfaddin A.I.R.
Excerpt:
- .....the old code applies. the chief difference between the two sections is that whereas under the old code a suit would lie against the heirs or assignees of a benamidar though not against the benamidar under section 66 of the new code, no suit would lie against any one claiming a title under the certificated purchaser. the learned vakil for the appellant has referred to two decisions of this court, being the case of promotho nath pal v. muhini mohan pal [1920] 47 cal. 1108 and the case of makarali v. sarfaddin a.i.r. 1923 cal. 85 to support his argument. but in both those cases the sale was confirmed before the new code came into force; that is to say, before 1st january 1909, though in one of them the sale certificate did not issue until after the new code came into force and there it was.....
Judgment:

Duval, J.

1. In this case the plaintiff sued for declaration of his title to and for possession of, certain land. His case was that he purchased it in auction sale in the benami of defendant 6 on 8th August 1908 and that subsequently he got possession in the name of his benamidar who was in possession for some time, but that in 1915 his benamidar sold the land to defendants 1 and 2 and he was dispossessed. He brought a case under Section 9, Specific Belief Act, and lost it and so he brought this suit. The defence set up in the written statement of the vendees was that the plaintiff was never in possession and that defendant 6 was not a benamidar and that the suit is barred under 66, Civil P.C. Defendant 6, who purported to sell the property has put in a written statement stating that he was a benamidar. After issues were framed the first Court tried the issue as to whether the suit lay in view of the provisions of Section 66, Civil P.C., and held that it did not. This finding has been upheld in appeal. The second appeal is directed on this point only.

2. Now the sale took place, as we have stated, on 8th August 1908. At that time the Code of 1882 was in force and under Section 316 of that Code the property purchased in execution of the decree vested on the confirmation of the sale; but the sale was not confirmed until 6th January 1909 when the Code of 1882 had ceased to operate and had been superseded by the Code of 1908. Under Section 65 of the present Code, on the confirmation of the sale, the title to the property is to vest back with retrospective effect from the date of the sale. The argument therefore, addressed to us is that by the confirmation of the sale under Section 65 of the new Code the plaintiff' title to the property accrued on the 8th August 1908 and, therefore, Section 66 of the Code has no application but that Section 317 of the old Code applies. The chief difference between the two sections is that whereas under the old Code a suit would lie against the heirs or assignees of a benamidar though not against the benamidar under Section 66 of the new Code, no suit would lie against any one claiming a title under the certificated purchaser. The learned vakil for the appellant has referred to two decisions of this Court, being the case of Promotho Nath Pal v. Muhini Mohan Pal [1920] 47 Cal. 1108 and the case of Makarali v. Sarfaddin A.I.R. 1923 Cal. 85 to support his argument. But in both those cases the sale was confirmed before the new Code came into force; that is to say, before 1st January 1909, though in one of them the sale certificate did not issue until after the new Code came into force and there it was held that the real purchaser could maintain a suit, against the transferee as his right had already accrued under the old Code. The present Code, however, is clearly different. No doubt Section 65 of the new Code states that when the sale has become absolute the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute. But the question really before us is whether on 1st January 1909, when the new Code came into force, the plaintiff's right had accrued as a purchaser through the benami of defendant 1. In my opinion it had not. In this connexion reference must be made to Section 6, General Clauses Act, which says that when an Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears the repeal shall not affect any right acquired or accrued under any enactment o repealed.

3. The only point, therefore, is whether as a matter of fact on 1st January the plaintiff's right had accrued. Now, even if we take Section 65 as dating back the right, it is clear that on 1st January this sale had not become absolute and so the plaintiff's right had not accrued. Now, if the plaintiff's right did not accrue on 1st January he is clearly bound by Section 66 and if he is bound by Section 66 the plaintiff cannot maintain this suit.

4. In this view, therefore, I would dismiss the appeal with costs.

Mallik, J.

5. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //