DURGA DAS DE Vs. BAGALANANDA DE

JUDGEMENT

(1.) For the purpose of this appeal the facts may be stated as follows: Plaintiff claims a declaration of title to certain property which he alleges to be joint, and recovery of possession thereof. Defendant 1 is his uncle, and defendant 2 is the son of defendant 1. All three used to live jointly, plaintiff and defendant 1 each having an eight annas share in the Ejmall property. Defendant 1 was karta of the joint Hindu family. According to the Dayabhaga system, defendant 2 was not in law a member of the joint family. In 1324 B. S. plaintiff and defendant 1 jointly purchased the property in suit, in adjustment of a debt due on a mortgage bond for a loan made by the plaintiff's grandfather. The property was subject to a rent charge, and was sold in execution of a rent decree.

(2.) As karta, it was the duty of defendant 1 to see that the rent was paid. At the auction sale, the property was purchased by defendant 1 benami in the name of defendant 2. In 1331 the parties separated in mess, and the joint property was partitioned by arbitrators. Defendant 1 prepared the list of properties and did not include the property in suit. The award, upon which a decree was passed, contained a reservation of any property accidentally omitted from the partition and subsequently discovered. The defence was that the property in suit was not joint, and had been purchased out of private funds belonging to defendant 1. The facts have been found by both Courts below in favour of the plaintiff, and it is unnecessary to refer to them further. But the defendants rely upon the point of law, that the suit is barred by reason of the provisions of Section 66, Civil P. C.

(3.) The section is as follows: (1) 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. (2) Nothing in this section shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that property, though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy a claim of such third person against the real owner.