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Phaindhar Sarma Vs. Jibakrista Sarma and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in64Ind.Cas.260
AppellantPhaindhar Sarma
RespondentJibakrista Sarma and ors.
Cases ReferredGanga Sahai v. Kesri
Excerpt:
assam land and revenue regulation (i of 1886), section 86 - construction of statute--certified purchaser member of joint hindu, family--purchase with joint funds--suit against certified purchaser maintainable. - .....the plaintiff a decree for the share which belonged to the first defendant as a member of the joint family.2. on the present appeal, it has been argued that under section 86 of the assam land and revenue regulation it was not open to the contesting defendants to establish that the first defendant was not the sole purchaser, but that the purchase was made in his name for the benefit of the whole family. in support of this sontention, reference has been made to the decisions in jadub ram deb v. ram lochun muduck 5 w.r. 56. jokhee lall v. musammat huns kooer 10 w.r. 167 and shaikh johur ali v. brindabun chunder 14 w.r. 10. it may be conceded that these cases do lend some support to the contention of the appellant, but they were not decided upon a construction of section 85 of the assam.....
Judgment:

Asutosh Mookerjee, Acting C.J.

1. This is an appeal by the plaintiff in a suit for recovery of possession of land on declaration of title. The plaintiff purchased the property from the first defendant, who himself was the recorded purchaser at a sale for arrears of revenue held under Regulation I of 1886 (The Assam Land and Revenue Regulation). The case for the plaintiff is that the property was acquired at the revenue sale by his vendor and that the other defendants, who are members of the same family, had no title thereto. The Subordinate Judge has held that the purchase at the revenue sale was made by the first defendant, not on his own behalf, but for the benefit of all the members of the family including himself. In this view, the Subordinate Judge has awarded the plaintiff a decree for the share which belonged to the first defendant as a member of the joint family.

2. On the present appeal, it has been argued that under Section 86 of the Assam Land and Revenue Regulation it was not open to the contesting defendants to establish that the first defendant was not the sole purchaser, but that the purchase was made in his name for the benefit of the whole family. In support of this sontention, reference has been made to the decisions in Jadub Ram Deb v. Ram Lochun Muduck 5 W.R. 56. Jokhee Lall v. Musammat Huns Kooer 10 W.R. 167 and Shaikh Johur Ali v. Brindabun Chunder 14 W.R. 10. It may be conceded that these cases do lend some support to the contention of the appellant, but they were not decided upon a construction of Section 85 of the Assam Land and Revenue Regulation. But, apart from this circumstance, these decisions were given before the pronouncement by the Judicial Committee as to the mode of interpretation of restrictive statutory provisions of this character. In the cases of Buhuns Kowur v. Lalla Buhooree Lall 14 M.I.A. 496 : 18 W.R. 157 : 10 B.L.R. 159, 3 Sar. P.C.J. 69 : 20 E.R. 871. and Lokhee Narain Roy Chowdhry v. Kalypuddo Bandopadhya 2 I.A. 154 : 23 W.R. 358 : 3 Sar. P.C.J. 472 : 3 Suth. P.C.J. 122 (P.C). the Judicial Committee pointed out that such provisions should be strictly construed. Consequently a provision which lays down that a suit would not be maintained against a certified purchaser to prove that the certified purchaser was not the real owner, would not be applied to a suit of a different character, for instance, a suit against the transferee from the certified purchaser or a suit by the certified purchaser against persons in possession who claim as beneficial owners of the disputed property.

3. It is plain that the same principle must be applied to Section 86 of the Assam Land and Revenue Regulation. That section is in these terms: 'The name of the purchaser to be entered in the certificate shall be that of the person declared at the time of sale to be the actual purchaser, and any suit brought in a Civil Court against the certified purchaser on the ground that the purchase was made on behalf of another person not the certified purchaser, though by agreement the name of the certified purchaser was used, shall be dismissed with costs.' The answer to the contention of the appellant who relies upon this section, is that its application must be restricted to a suit brought in a Civil Court against the certified purchaser on the ground that the purchase was made on behalf of another person and not on behalf of the certified purchaser. Here the suit is in essence brought against the members of the family to which the first defendant belongs, and Section 86 can have no possible application to a suit so framed. We may further point out that according to the decision of the Judicial Committee in Bodh Singh Doodhooria v. Gunesh Chunder Sen 12 B.L.R. 317 : 19 W.R. 356 : 3 Sar. P.C.J. 253. the principle has no application in cases of joint purchase by one member of a joint Hindu family for the benefit of the whole family. The provisions of the section cannot be taken to affect the rights of the members of a joint Hindu family who, by the operation of law, and not by virtue of any private agreement or undertaking (such as exists between a benamdar and the beneficial owner), are entitled to treat as part of their common property an acquisition, however made, by a member of the family in his sole name, if made by the use of the family funds. This view was re-affirmed by the Judicial Committee in the case of Ganga Sahai v. Kesri : (1915)17BOMLR998 . where their Lordships observed that the provisions of the section were designed to create some check on the practice of making what are called benami purchases at execution sales for the benefit of judgment-debtors and in no way to affect the title of persons otherwise beneficially interested in the purchase. In the case before us, it has been found that the first defendant was a member of the joint family and that the purchase was made by him with joint funds. Consequently every member of the family acquired an interest in the property purchased, not by virtue of a contract, but under the Hindu Law by virtue of their position as members of the joint family. Cases of this description are plainly not barred by Section 86.

4. The result is that the decree of the Sub ordinate Judge is affirmed and this appeal dismissed with costs.

Ernest Fletcher, J.

5. I agree.


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