1. This appeal arises out of a suit for recovery of possession of certain land that was sold in execution of a decree against one Harnandan Thakur in May 1900. It was purchased ostensibly by the defendant, Jadu Nandan Thakur. The plaintiff is the heir of one Rajbati, the sister of Jadunandan, and his case is that Jadunandan, purchased the property with Rajbati's money and on her behalf, and that she remained in possession till her death in January 1906, since when the defendants are in possession. The 2nd defendant is said to have purchased a portion of the property from Jadurandan in June 1904, in full knowledge that Jadunandan was merely a farzidar. The defence isthat Jadunandan bought the property himself.
2. The Subordinate Judge has dismissed the suit, holding that it is barred by Section 66 of the Code, and also that Jadunandan was the real purchaser. The plaintiff appeals.
3. Against Shia Thakur, the 2nd defendant, the plaintiff has, in my opinion, no case whatever. There is no evidence worth a moment's consideration that Shia had any reason to think that Jadunandan was not the real purchaser. Bhaya Singh, an important witness for the plaintiff, admits that Shia Thakur has been in possession since his purchase, which was 1 1/2 years before Rajbati's death. learned Counsel contended that Rajbati, being a pardanashin, could not be estopped from pleading that the ostensible owner was not the true owner, unless it was shown that everything had been explained to her. This seems to me an untenable contention. To accept it would be equivalent to holding that, though a purchaser is not bound to inquire whether his vendor is the benamidar for another man, he is bound to ascertain whether or not lie is the benamidar of a woman. This is evidently unreasonable.
4. As regards Jadunandan I feel no hesitation in holding that the suit is barred by Section 66 of the Code and, therefore, need not examine the question whether Jadunandan was or was not the real purchaser. But I may say thatI incline to the belief that the Subordinate Judge's view of the facts is correct. learned Counsel has subjected the defendant's case to powerful criticism, but clearly the whole burden of proof rests on the plaintiff. It is argued that there is a discrepancy between the defendant's pleading and his proof. In the first he asserts that he bought the property himself, whereas in his evidence he says that he obtained the money from his brother with whom he lives in commensality. This does not seem to me of very much importance, especially when it is remembered that the defendant's case is that the sale certificate is conclusive. It is contended also that as Jadnnandan was rajbati's mukhtear, the burden of proving the good faith of all transactions between thorn rests on him. But it is open to doubt whether the power-of-attorney authorised Jadunandan to purchase property for Rajbati or to manage her estates, and in any case we have not to decide what was the character of a transaction between them; but whether there was any transaction between them or not. No real explanation has been given why rajbati should want to buy his property which is many miles away from her home. It can hardly have been with a view to enrich the estate, because that had to descend to the plaintiff with whom she had quarrelled. The reason assigned in the evidence, namely, that she wanted to restore it to the judgment-debtor who was her kinsman, would have appealed with equal strength to her brother, Jadunaridan.
5. As I have said, however, the suit is, in my opinion, barred by Section 66 of the Code, which lays down that no suit shall be maintained against any person claiming title under a purchase certified by the Court on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims. Now here the defendant certainly claims under a certified purchase and the suit is based on the ground that the purchase was made on behalf of the plaintiff's predecessor-in-interest. learned Counsel contends that the plaintiff also sues on the ground that Rajbati remained in possession till her death and relies on the decision in Sasti Churn Nundi v. Anopurna 23 C.699 which certainly is in his favour.
6. If the decision quoted is correct, it makes a very serious inroad on the section, and indeed I do not think it would be going too far to say that, if it is accepted, the section is for all practical intents and purposes repealed. The section is clearly aimed at benami purchases at execution sales. We have no need of a specific provision of law that a suit against a real purchaser, based on a false allegation that he is a betiamidar, must fail. The clear intention of the section is to stop benami purchases by making it impossible for the real owner to question the benamidar's title. It is sometimes said that the Legislature cannot have intended to enable fraud to be practised. But I cannot attach any other meaning to the section than this, that it aims at discouraging benamis by rendering the real purchaser helpless if he is cheated by his benamidars.
7. Now if the view taken in the case cited above is correct, namely, that the real purchaser can base a suit against his benamidar on the fact of possession, it is evident that the section at once loses all its effect. The purchase being ex hypothesi a benami purchase, the real purchaser would naturally get possession in every case, so that the only cases in which the section would be of any practical use would be those rare instances in which the parties quarrel immediately, even before possession is delivered. It can never have been the intention of the Legislature to enact the section for this limited purpose.
8. I agree with the decision in Bishan Dial v. Ghazi-ud-Din 23 A. 175 : A.W.N. (1901) 44. It is not necessary, however, to refer the decision in Sasti Churn Nundi v. Anopurna 23 C. 699 to a Full Bench, because the present case can be distinguished, as the trial Judge has pointed out, though it must be conceded that the distinction is somewhat unreal Reading paragraph 7 of the plaint it cannot be disputed that this suit was brought on the ground that the purchase was made on belrilf of some one through whom the plaintiff claims.
9. The appeal fails and must be dismissed with costs. Defendant No. 2 is entitled to separate costs.
10. Sharf-Ud-Din, J.--I agree.
11. In the memorandum of appeal, we are informed that the value of the appeal has been put down as Rs. 2,249-8-6, which is a mistake for Rs. 6,005.