BAHURIA SAMBHO KOER Vs. HARIHAR PRASAD

JUDGEMENT

(1.) In this case it appears that Towzi No. 3306 comprised numerous separate accounts. The plaintiff had an interest in separate account No. 282, the 1st defendant in No. 168 and the 2nd defendant in No. 222. Several of these accounts fell into arrears, among them being No. 222 and the residuary share. They were advertised for sale and the sale was fixed for the 20th September 1900. On that date No. 222, among others, was put up for sale but no bids were received. Accordingly the Collector, under Section 14 of the Revenue Sales Act, 1859, declared that the entire estate would be sold unless the other sharers paid up the arrears within ten days. The next day, the 21st September, the 1st defendant paid in the arrears due on No. 222 and on the 28th he paid all the sums due on the various separate accounts. On the 22nd September the plaintiff offered to pay in the money due on the various separate accounts with the exception of the residuary account. The Collector said that they needed no permission of his to deposit the money and that the question, with whom the shares in default would be settled would be decided after the expiry of the ten days. After that on the 4th November the Collector declared the 1st defendant to be the purchaser on the ground that he had paid in the money first. This order was upheld on appeal by the Commissioner on the 8th February 1910 and the sale was confirmed. Possession was delivered to the 1st defendant on the 31st March 1910, and in the following December he sold the property to the 3rd defendant. On the 7th February 1911, this suit was brought for possession , of, the whole of No. 222, and in the alternative for possession of half. The learned District Judge held that the 1st defendant was a mere benamidar for the 2nd defendant, who was a defaulting proprietor of No. 222, and not entitled to purchase under Section 14 of the Act. Accordingly he decreed the plaintiffs suit in full. The 3rd defendant appeals.

(2.) An objection taken that the suit was instituted out of time was dropped. It appears that the suit was instituted on the last day with a Court-fee Rs. 800 in defect. The Subordinate Judge, in whose Court the case was instituted, weakly-allowed two adjournments to put in this money and subsequently the Court was closed for three days. The money was paid on the opening day. The order of the Subordinate Judge was, in my opinion, quite unjustifiable. It is not proper for a Court to extend the period of limitation beyond that allowed by law, to the prejudice of defendants, when there is no question of any mistake, merely to suit the connience of the plaintiff. But the order having been made and complied with, the question of limitation cannot now be raised.

(3.) Next it is contended that the lower Court erred in holding that the 1st defendant was a benamidar and it is urged that there is no evidence to support this finding. In my opinion, however, the finding is perfectly right. You cannot expect direct evidence of a benami. The whole object of such a transaction is to suppress evidence of the real facts. But the true facts can be proved by circumstantial evidence and this has been done in the present case. The learned District Judge has dealt fully with this question and as I agree with his reasoning and conclusions it is .unnecessary to repeat them. Suffice it to say that, in my opinion, there can be no doubt that the 2nd defendant was the real purchaser, both in the purchase by the 1st defendant in September 1909 and in the sale by the 1st defendant to the 3rd defendant December 1910.