SOWCAR KAMURUDEEN SAHIB Vs. NOOR MAHAMED USMAN SAHIB

JUDGEMENT

(1.) The plaintiffs are the appellants. They are the heirs of one Abdul Gunni Sahib, deceased. Their case is that Abdul Gunni Sahib in order to defraud his creditors purchased the plaint properties in the name of Noor Abdul Kadir Sahib in a Court auction sale held in execution of the decree passed against Abdul Ganni Sahib and that in pursuance of the same scheme, he (Abdul Ganni put Abdul Kadir Sahib in possession of the properties, but, on the understanding that Abdul Kadir should be trustee of the property for Abdul Ganni Sahib and make over all the profits to Abdul Ganni till such time as Abdul Ganni could safely take back actual possession. The Court auction sale took place in November 1898 and it was confirmed in January 1899 though the sale certificate seems to have been issued only in June 1899. The possession of Abdul Kadir Sahib began in the beginning of 1899 evidently as soon as the sale was confirmed in January 1899.

(2.) The Lower Courts dismissed the suit of the plaintiffs on the strength of the provisions of Section 66 of the Civil Procedure Code. They held that the effect of that section was not affected by the allegation in the plaint that till October 1909 the benamidar (Abdul Kadir Sahib) and his heirs (the defendants), had been regularly paying the profits of the properties to Abdul Ganni Sahib and his heirs, the plaintiffs, in pursuance of the arrangement of January 1899.

(3.) It is argued in second appeal, so far as I have followed the arguments of the appellants learned vakil Mr. T.R. Ramachandra Iyer that as Abdul Ganni put Abdul Kadir in possession of the properties in January 1899 and as Abdul Kadir Sahib took upon himself the duties of trustee in respect of these properties for Abdul Ganni, Section 66 of the Civil Procedure Code cannot be an obstruction to the success of the plaintiffs suit which is brought by the beneficiaries against the heirs of the trustee.