S M KARIM Vs. BIBI SAKINA

JUDGEMENT

(1.) This is an appeal by special leave against the judgment of the High Court of Patna reversing the concurrent judgments of the two courts below, and ordering the dismissal of the suit of the appellant. The appellant is Syed M. Karim son of one Syed Aulad Ali and the respondent Mst. Bibi Sakina (defendant No. 11) is transferee of the properties in dispute from Hakir Alam (defendant No. 2) son-in-law of Syed Aulad Ali. The appellant, in his turn, is a transferee of the same properties from his father Syed Aulad Ali.

(2.) The suit was brought for declaration of title and confirmation of possession or in the alternative of delivery thereof against several defendants in respect of this and other properties. We are not concerned in this appeal with that other defendants or the other properties. This part of appellant's suit was based on the allegation that Syed Aulad Ali had purchased the suit properties on May 28, 1914 at a court sale, benami in the name of his son-in-law Hakir Alam. The reason for the benami purchase was that under the rules of the Darbhanga Raj where Syed Aulad Ali was employed, person serving in certain capacities were prohibited from purchasing at court sales. The sale certificate was issued in the name of Hakir Alam who was them living with Syed Aulad Ali. On January 6, 1950, Syed Aulad Ali sold the property to his son the present appellant and Hakir Alam sold the property in his turn to Bibi Sakina and the present suit was filed for the above reliefs.

(3.) In this appeal, it has been stressed by the appellant that the finding clearly establish the benami nature of the transaction of 1914. This is, perhaps, true but the appellant cannot avail himself of it. The appellant's claim based upon the benami nature of the transaction cannot stand because S. 66 of the Code of Civil Procedure bars it. That Section provides 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 someone through whom the plaintiff claims. Formerly, the opening words were, no suit shall be maintained against a certified purchaser, and the change was made to protect not only the certified purchaser but any person claiming title under a purchase certified by the Court. The protection is thus available not only against the real purchaser but also against anyone claiming through him. In the present case, the appellant as plaintiff was hit by the Section and the defendants were protected, by it.