A NATARAJA MUDALIAR Vs. DPRAMASWAMY MUDALIAR

JUDGEMENT

(1.) The first plaintiff's father having a decree against the owners of some house property in Madras, brought that property to sale in execution. Without obtaining the leave of the court to bid, he bought it himself using for that purpose the joint family money, and, in order to conceal this fraud on the court, he bought it in the name of the sixth defendant. This is the case of the plaintiffs, and of some of the defendants. That has been found by the learned judge, who saw the witnesses and examined the facts obviously with the greatest care, to be the truth, and I can find no ground for interfering with that finding of fact.

(2.) The first plaintiff with his sons, the second and the third plaintiffs, joining as defendants the other members of the joint family has brought this suit for partition and he claims that part of the joint family property to be brought in and divided in the partition consists of this house property standing in the name of the sixth defendant and he brings in the sixth defendant to have that case decided. The sixth defendant resists that claim setting up, firstly, as a fact that the plaintiff's case is not true at all, that he never was a benamidar or nominee of the first plaintiff's father which, as I have pointed out, has not been accepted as the fact, and, secondly he says, that in law although he is not entitled to this property, it is not open to the plaintiffs in this case to recover it from him by reason of Section 66 of the Code of Civil Procedure, 1908; and it is on the proper interpretation of that section, and that section only, that this case must turn.

(3.) Before the passing of that section there was in existence Section 317 of the Civil Procedure Code of 1882. The terms of that section were "No suit shall be maintained against the certified purchaser (which means the certified purchaser who has purchased the property at Court-auction) on the ground that the purchase was made on behalf of any other person or on behalf of some one through whom such other person claims." There was very soon a conflict of authorities as to the meaning of that section and I think it may be stated that the Madras view, established first of all in Natesa Aiyar V/s. Venkatramayya (1882) I.L.R. 6 Mad. 135, and followed in Krishna Aiyar V/s. Raghaviyan (1899) 9 M.L.J. 298 and Minakshi Ammal v. Kalianaraina Iyer (1897) I.L.R. 20 Mad. 349 : 7 M.L.J. 213 was that there was nothing in that section to prevent a member of a joint family from recovering the property which had been bought out of the joint family money in the name of some person benami at a court-auction by the managing member of the family he himself being the decree-holder. A different view was taken in Allahabad and the matter came before the Privy Council in Suraj Narain V/s. Ratan Lal (1917) I.L.R. 40 All. 159 : 33 M.L.J. 180 (P.C.) and, in that case there is no doubt that the Privy Council supported the view contrary to the view taken in Madras though it is worth observing that there seems to have been very little discussion on the matter and the Madras cases do not seem to have been cited. If, however, the matter stood there, I should find great difficulty in distinguishing that case as was done by the learned judge below but that case was tried when the Civil Procedure Code of 1882 was in operation and it is a decision under Section 317 of that Code. After that case, or rather after the first hearing of that case. Section 66 of the Civil Procedure Code of 1908 was introduced, and that altered the law very materially, because now the only prohibition is contained in these words: "No suit shall be maintained against any person claiming title under a purchase certified by the court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims." The obvious alteration is that now the penal provision is confined to purchases on behalf of a plaintiff or persons through whom he claims, whereas before it was wide enough, on one interpretation of it, to cover purchases on behalf of any other person. I should think that alteration was made because, on what I may call the Allahabad interpretation there might be an injustice, it would follow that infants, whose father using the infant's property entered into such a transaction would be deprived, though perfectly innocent themselves, of their family property, and that it would remain in the hands of a benamidar. It was therefore desirable that the inability to enforce rights should be restricted to the person who was guilty of the act, which was looked upon as an illegal act. It is argued in this case that the purchase was made on behalf of the plaintiff and that the real meaning of that clause is that if a managing member makes a purchase and for that purpose uses the money of the family, he is making that purchase on behalf of all the members of the family. Unless I were driven to an interpretation which would have the results which, as I have already stated, in my view, it was the desire to prevent, I should be very loathe to come do such a conclusion; but, in my judgment, it is quite unnecessary because I do not think that a managing member buying property using family funds for that purpose can be properly said, within the meaning of that section, to buy on behalf of other members of the family. He is doing something wholly wrong. It cannot be right for him to take the family money and put it into property in such circumstances that, if the mail who lends his name chooses to behave in the way that this sixth defendant has behaved, the family would be deprived of the property. I can see no distinction between the case of a coparcener and the case of a partner. Where partnership money is used for a benami transaction of that kind it would follow, if the interpretation of that kind suggested by the section is right, that the innocent partner would lose his property. In my judgment that is not the meaning of the section.