PAREMAJALU CHETTIAPPA Vs. PATTANGERI

JUDGEMENT

(1.) The suit by the plaintiffs for redemption and possession of the plaint schedule lands has been decreed by the Court below and defendant 5 has come up in second appeal. The lands were mortgaged with possession by Pattangeri alias Markje Thammiah, father of plaintiffs 2 to 5, and Belliappa, father of plaintiff 1, in favour of Thekkada Belliappa the father of defendants 1 and 2 and grand-father of defendants 3 and 4 under a usufructuary mortgage deed dated 19-3-1894. According to the plaintiffs the mortgagee was entitled to the usufruct of the property for a period of 50 years from the date of that mortgage. He was bound to pay land revenue and other dues payable to Government upon the said property and to pay himself a sum of Rs. 600/- and interest thereon from the income of the property during that period, and thereafter restore back possession of the property to the mortgagors. It was also alleged in the plaint that while defendants 1 to 4 were in possession as legal representatives of the original mortgagee they wilfully allowed the property to be sold for arrears of land revenue due to Government and got it knocked down for their benefit in the name of their own sister's husband Belliappa, father of defendant 5, who has since died; and that in spite of the sale defendants 1 to 4 have continued to be in possession and enjoyment of the property. Defendants 1 to 4 pleaded that the suit, which was brought on 15-5-1944, was premature as the plaintiffs were not entitled to redeem the properties before 19-3-1951. They denied that there was any collusion between them and the 5th defendant's father and pleaded that the lands were sold for arrears of land revenue because they themselves were unable to pay the assessment and that the fifth defendant's father is a bona fide purchaser and not a benamidar for them. Defendant 5 pleaded similarly that the property was his by virtue of the purchase in the revenue sale by his father and that the sale was not fraudulent.

(2.) Both the Courts below who have upheld the plaintiffs' right to redeem have held that the revenue sale was brought about fraudulently by defendants 1 to 4 who were able as well as bound to pay the land revenue due to Government, that in spite of that sale the suit property had continued to remain all along in the possession of defendants 1 to 4 and was never in the possession of defendant 5 or his father; that only nominally the property had been got knocked down in the name of defendant 5's father benami for defendants 1 to 4 and for their benefit and that the plaintiffs' suit was not premature and was maintainable.

(3.) Mr. Muddappa, learned counsel who appears for the appellant, has urged that the suit is barred under Section 106 Clause 4 of the Coorg Land Revenue Act. That section is meant to bar a suit against a real purchaser in a revenue sale, where a certificate has been issued to him and he has been put in possession, for a declaration that the sale is benami; and cannot be invoked to assist a person like defendant 5 or his father, who has been a party to the fraud with the mortgagees and has sought to assist the mortgagee to commit breach of a constructive trust as defined under Section 90 of the Indian Trust Act. He was in reality merely an agent of defendants 1 to 4 and what they could not gain if they had purchased the property themselves personally cannot be permitted to be achieved if they bought it through an agent. See -- 'Deo Nandan Prashad v. Janki, Singh', AIR 1916 P.C. 227 (A) which was a similar case of a benami purchase. Section 106(4) is designed to prevent fraudulent claims and to use it in the way now sought as against the plaintiffs would be to use it as a machinery to effect and perpetuate a fraud. In -- 'Nuzar Ally Khan v. Ojoodhyaram Khan', 10 Moo Ind. App. 540 (B) which was also a similar case of benami purchase in revenue auction to defraud a mortgagee their Lordships of the Privy Council held that as the sale was a fraudulent one brought about by the mortgagee's representative in possession, the Act under which it was held did not apply so as to defeat the mortgagor's equity of redemption. The sale was to be considered as nothing more than a private sale and impressed a trust on the estate which passed under it. There had been a fraudulent agreement between the mortgagee's representative in possession and the purchaser at the Government sale and so both were estopped as against the mortgagor from relying upon the sale. Even Section 145 of the Coorg Land Revenue Act provides for a revenue sale being set aside by a Civil Court when such a sale is vitiated by fraud. In view of the concurrent findings of the Courts below that the revenue sale was fraudulently brought about by defendants 1 to 4, mortgagees, that the purchase by defendant 5's father was really by them alone and was for their benefit though nominally the bid was knocked down in the name of defendant 5's father, neither Section 106(4) nor Section 145 of the Coorg Land Revenue Act can operate as a bar to the plaintiff's present suit for redemption and possession of the mortgaged property which has been really in the possession of the mortgagees.