1. This appeal arises out of a suit for recovery of possession of a 2/3rds share of certain lands which had been sold in execution of a decree for arrears of rent and purchased by the defendant.
2. It was alleged that there was an agreement between the plaintiffs and the defendant that they should purchase the property in the names of all the three persons on payment of the price in equal shares, that the defendant should take from the plaintiffs the price in respect of two shares and should himself pay from his own pocket his share of the money, that the defendant accordingly took the shares of the money from the plaintiffs but purchased the property in his own name only, and that the plaintiffs having subsequently come to know of it, the defendant took the advice of lawyers and agreed to put in a petition (admitting therein the plaintiffs' title) in the record of the execution case, and stated that there would be no difficulty in future, that he actually put in such a petition but subsequently did not allow the plaintiffs to take possession of their shares.
3. The defence was a total denial of these allegations.
4. The Court of first instance found that the allegations made in the plaint were true and accordingly decreed the suit.
5. On appeal the learned Subordinate Judge held that originally the purchase was made by the defendant No. 1 alone and the earnest money was paid by him alone.... The agreement to give shares to the plaintiffs was arrived at after the defendant had made the purchase on his own behalf.' He was, however, of opinion that this did not make any substantial difference in the position of the parties relating to the purchase. He says: 'For the purchase was not complete until the balance of the purchase money was paid, and the defendant had not acquired any right until this was done and ' until the sale was made absolute, So when the defendant, instead of paying the balance of the purchase money from his own pocket, obtained a portion of it from the plaintiffs, not as a loan but after admitting them to be joint purchasers of the note, he could not claim to be the sole purchaser of the jote and could not deny the plaintiffs' right in the purchase. If he obtained the certificate of sale in his own name alone, it would amount to an act of fraud.' He accordingly held that the defendant was estopped from denying the plaintiffs' title to a 2/3rds share of the jote. In the result the decree of the Court of first instance was affirmed by the lower Appellate Court.
6. It is contended on behalf of the appellant that the suit is not maintainable, having regard to the provisions of Section 66 of the Civil Procedure Code.
7. There is no doubt that the defendant was a person who claimed title under a purchase certified by the Court, and Section 66, therefore, clearly applies to the case. The second proviso to the section says: 'Nothing in this section shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchaser.'
8. It is contended on behalf of the respondents that this case comes within the second clause, because it was fraudulent on the part of the defendant to have obtained a certificate in his own name instead of in the names of all the three persons, but we do not think that it can be brought under the second clause.
9. Order XXI, Rule 84, says: 'On every sale of immoveable property the person declared to be the purchaser shall pay immediately after such declaration a deposit of twenty-five per cent, on the amount of his purchase-money to the officer or other person conducting the sale, and in default of such deposit, the property shall forthwith be re-sold.' Then, Order XXI, Rule 94, says: 'Where a sale of immoveable property has become absolute, the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute,' so that the person who is declared to be the purchaser after the bids are concluded is the person in whose name the certificate is to be granted under Rule 94. The names of the plaintiffs, therefore, could not be inserted in the certificate of sale.
10. There is no doubt that a petition was filed by the defendant in the execution case, in which it was expressly admitted that he had purchased the property on behalf of himself and the two plaintiffs and that he had taken their share of the money from them, but the fact that these statements were made in the petition filed by the defendant himself in Court on the day the balance of the purchase money was deposited negatives any case of fraud on the part of the defendant, as he made no secret of the fact that the purchase was made on behalf of all the three. The certificate, however, as we have already stated, could not be made in the names of all of them. The question is whether, under these circumstances, the suit can be maintained by the plaintiffs.
11. The case of a purchase by a member of a joint Hindu family from family funds stands on a different footing from the present case. In the ease of Bodh Singh Doodhooria v. Gunesh Chunder Sen 12 B.L.R. 317 : 19 W.R. 356 : 3 Sar. P.C.J. 253 the Judicial Committee said that the provisions of the section cannot be taken to affect. the rights of members of a joint Hindu family who by the operation of law, and not by virtue of any private agreement or understanding, are entitled to treat as part of their common property an acquisition, howsoever made, by a member of the family in his own name if made by the use of the family funds see also the reoent ease of Ganga Sahai v. Kesri 30 Ind. Cas. 265 : 19 C.W.N. 1175 : 18 M.L.T. 20 : 29 M.L.J. 329 : 2 L.W. 837 : 13 A.L.J. 999 : 17 Bom L.R. 998 : 37 A 545 : 22 C.L.J. 508 : (1915) M.W.N. 713 : 42 I.A. 177 (P.C.). The same principle applies, where the parties stand in the relation of partners and the purchase is made by a partner by the use of partnership funds.
12. In the present case, had it been found, as alleged in the plaint, that there was an agreement before the sale that the purchase would be in the names of the three persons, then the case could have been brought under Sub-section (2) of Section 66 of the Code. Then it might have been said that the name of the defendant had been inserted in the certificate of sale fraudulently or without the consent of the two plaintiffs. But the learned Subordinate Judge, as stated above, has found that there was no agreement before the sale. That being so, we do not think that the second Clause of Section 66 applies to this case.
13. We are referred to a decision of Sir Lawrence Jenkins, C.J., and D. Chatterjee, J. in Noni Gopal Bosu v. Sures Chunder Ghosh 30 Ind. Cas. 212 : 13 C.W.N. cxxviii (128). But there the agent of the real owner purchased the property, and it was, therefore, a case of an agreement prior to the sale.
14. In the face of the statements made in the petition filed by the defendant, a copy of which is on the record of the present case, the plaintiffs are, prima facie, entitled to claim specific performance of the contract. But there was no prayer for specific performance of the contract in the plaint, nor has such a case been tried by the Courts below. We think, however, that the ends of Justice require that the plaintiffs should be allowed to amend their plaint with a prayer for specific performance of the contract, as the facts upon which they would be entitled to maintain such a suit are all stated in the plaint.
15. The learned Pleader for the appellant contends that if the plaintiffs are allowed to amend the plaint, the defendant should be allowed to put in a fresh defence and the case tried de novo. We think that this should be done.
16. We accordingly set aside the decrees of the Courts below, remand the case to the Court of first instance and direct that Court to allow the plaintiffs to amend their plaint and allow the defendant also to put in fresh written statement and then try the case according to law.
17. Costs will abide the result.