BAIJNATH DAS Vs. BISHAN DEVI

JUDGEMENT

(1.) This is a plaintiff's appeal. The plaintiff is the son of one Narain Das. The defendant respondent, Musammat Bishan Devi, is his own mother and Lala Jagannath Das, the other defendant respondent, is his own brother. According to the allegations in the plaint, the father, Lala Narain Das, and the two sons constituted a joint Hindu family, and their mother, the defendant No. 1, lived jointly with Lala Narain Das, when on the 20 of November, 1891, Narain Das purchased out of joint family funds the property which is now in dispute, at an auction sale in execution of a decree obtained by him against certain judgment- debtors. The purchase was made in the name of Musammat Bishan Devi, the wife of Narain Das. The certificate of sale was issued in her name and mutation of names took place in her favour after the sale. Her name has continued from that time down to the present. In January, 1911, Narain Das died. In 1917 Musammat Bishan Devi applied to the Revenue Court for partition of the share recorded in her name. The plaintiff appellant objected that she was not the owner of it and not in possession. The Revenue Court, under Section 111 of the Land Revenue Act, directed the present plaintiff to bring a suit within three months in the Civil Court for the decision of the question. The order was pissed on the 21 of February, 1918, and the present suit was brought on the 26 of February, 1918. The plaint has been curiously worded in places. In paragraph 9 onwards it is alleged that Narain Das, as head of the joint family, was the owner in possession of the said property purchased and up to the time of his death in January, 1911, he enjoyed it as owner; that he bad purchased the property himself for the benefit of the joint family; that the act of that Narain Das, in that had used the name of his wife to make the purchase, no matter for what reason he did so, was contrary to his right and power and the plaintiff and his brother are not bound by it; that after the death of Narain Das the plaintiff and his brother have enjoyed the property as owners by right of survivorship; that the defendant No. 1, Musammat Bishan Devi, had not received at any time any personal benefit either in the life-time of Narain Das or after his death; that the has not at any time acquired any right in the said property nor had she any right left in it.

(2.) The defendants did not admit the facts stated in the plaint. It was alleged that the property had been really and truly acquired by Musammat Bishan Devi; that it was hers, she was-in possession of it and had all along been in possession of it.

(3.) In his reliefs the plaintiff asked for a declaration that "he-and his brother were the owners in possession of the property after the death of Narain Das, the real and actual purchaser, and that defendant No. 1 had no ownership or possession therein." It will be noticed that the plaintiff did not put forward any alternative case, namely, that even if Musammat Bishan Devi be deemed to have acquired the property, still he, the plaintiff, and his brother had held the same adversely as against her for more than twelve years and had therefore acquired title by prescription. Also there was no issue framed on the basis of any such claim. The court below has held that the suit as brought by the plaintiff is not maintainable in view of the terms of Section 66 of the Civil P. C.. The plaintiff comes here on appeal and on his behalf three points are urged: (1) That Musammat Bishan Devi was a member of the joint Hindu family. That the purchase in her name was therefore not a benami transaction such as is contemplated by Section 66, but is really an acquisition of property by a joint family in the name of one member of that family; and that the plaintiff is therefore entitled to bring this suit despite Section 66. (2) That in any event the plaintiff is entitled to come in under Clause (2) of Section 66, which says that nothing in the sections shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate without the consent of the real purchaser. The contention is that, the plaintiff did not consent to the entry of the name of Musammat Bishan Devi in the certificate and therefore he could come in and ask for a declaration that the entry of her name was made without his consent. (3) That the suit ought not to have been dismissed on the decision of this preliminary issue, because the plaintiff is entitled to claim on the basis of adverse possession as against the defendant No. 1 and the court ought to have gone into the question of adverse possession and decided it.