SATYA CHARAN MUKHERJEE Vs. DINANATH BISWAS

JUDGEMENT

(1.) THIS appeal which arises out of a suit for money is preferred against a decision of the learned Subordinate Judge of Hooghly, reversing the decision of the Munsif. The facts as found are these: The defendants Nos. 1 to 7 are the owners of a putni taluq. The putni was brought to sale by a co-sharer zemindar and was sold under the provisions of the Civil Procedure Code as if under a money-decree. The purchase was made ostensibly in the name of the plaintiff and after the date of the purchase but before the confirmation of the sale, the plaintiff deposited the sum of Rs. 1,157-15 5 gundas in order to preserve and save the property from being sold under the terms of the Putni Regulation. The sale to the plaintiff was subsequently set aside on the ground of irregularity and the plaintiff brought his suit to recover the sum of Rs. 1,157-15 5 gundas paid by him for the purpose of preserving the property from being sold under the Putni Regulation. The defence of the first six defendants was that the purchase by the plaintiff was a benami transaction and that the real purchaser was the defendant No. 7. The defendant No. 7 denied that and stated that the money so paid for the purpose of preserving the property from being sold under the Putni Regulation formed a portion of the money of the plaintiff. The case went to trial and, on the findings made by the lower Appellate Court by which we are bound, the learned Judge has found that the plaintiff was in fact the benamdar of the defendant No. 7. He has not, however, found any case of fraud established against either the plaintiff or the defendant No. 7. The first six defendants say that because the purchase was made by the plaintiff as the benamdar of the defendant No. 7 and because he on the 14th May 1908 deposited the sum of Rs. 1,157-15-5 gundas as rent to prevent the sale as the benamdar of the defendant No. 7, they are not liable to pay any portion of that money which was laid out for the purpose of preventing a forfeiture and sale of their interest in the putni taluq. That is a view of a benami transaction which I have not heard before. The learned Vakil for the defendants Nos. 1 to 6, respondents, says that there are authorities in support of his proposition, but the authorities that he has given, when looked at, show that they have nothing at all to do with the point. The point is a perfectly simple one. It is a suit for money laid out for preserving the property of seven defendants. The finding is that, although the money was paid by the plaintiff, the money did in fact belong to the defendant No. 7. The defendant No. 7, however, says "whatever right I have to this money I wish to make over to the plaintiff." But the defendants Nos. 1 to 6 say that he cannot take up that position now. I know of no reason why he cannot, and no authority has been cited to us to show that he cannot. I think the decree of the First Court is correct, namely, that the defendants Nos. 1 to 6 ought to be ordered to pay 2/3rds of this sum of Rs. 1,157-15-5 gundas to the plaintiff. The decree of the lower Appellate Court is accordingly set aside and that of the Court of first instance is restored. The defendants Nos. 1 to 6, respondents, must pay to the plaintiff his costs in this Court as well as in the Courts below. Teunon, J.

(2.) I agree.