MAHAMMED EMARTULLA SIRCAR Vs. MAHAMMBD DIDAR BUX SIRCAR

JUDGEMENT

(1.) This suit was instituted by the plaintiffs for recovery of rent for the period in suit, on the allegation that the rent claimed from the principal defendant, the tenant, was payable to the plaintiffs and the pro forma defendants as co-sharers who used jointly to realise same, bat inasmuch as the pro forma defendants had not joined with the plaintiffs, they had been added as parties.

(2.) The prayer is for a decree against the principal defendant and in the alternative against the pro forma defendants, should it be found that they had realised the plaintiffs share. The principal defendant denied relationship of landlord and tenant and defendant No, 2 Mahammad Emaratulla Sarkar supported him, on the ground that the land in suit had been purchased by him alone at an execution sale which took place in August 1902. He contended that inasmuch as the sale certificate was in his name, Section 66, Civil Procedure Code, was a bar. We cannot take that view in this case. The object of that section : no doubt is to discourage benami purchases at Court sales, but not to render such purchases illegal. Inasmuch as the provisions of that section bar the equitable jurisdiction of the Court, it has been repeatedly held that the section must be strictly construed and not extended beyond its express terms It has been found by both the Courts that the defendant Emartulla s name was used by his father Haji Mehor Buksh, who was the real purchaser of the jote within which the land held by the principal defendant stands. It has also been found that the tenant defendant was brought on this land by the Haji and that after his death the tenant paid rent for one year to Dalai Buksh, one of the Haji s sons who according to the plaintiff was authorised to collect rent on behalf of all the heirs of the Haji. This allegation has been held proved. Defendant No. 2 relied upon certain decrees which he had obtained against some tenants of other lands in the jote, which are evidently of no value as the other heirs of the Haji were not parties therein. In the Settlement Khatian the names of all the heirs of the Haji are recorded as proprietors The Courts have not accept-ed the allegation that the principal defendant paid rent to defendant No. 2 alone, as no rent receipts or collection papers were produced.

(3.) In the circumstances above mentioned, we think the suit is not barred by Section 66. It was held in Sasti Churn Nundi v. Aunopurna 23 C. 699 that when the plaintiff was in possession since the time of the sale for some years and when such possession was sought to be disturbed by the defendant by setting up a purchase in his own name, a suit was competent by the plaintiff for declaration of his title and for other reliefs incidental thereto. It was held in Musammat Buhuns Kowur v. Buhocree Lall 14 M.I. A. 496 at p. 526 : 18 W.R. 157 : 10 B.L.R. 159 (P.C.) : 3 Sar. P.C.J. 69 : 20 E.R. 871 that Section 317 does not make all benami transaction? invalid, nor read with Section 316 does it confer upon the ostensible purchaser a title against the real purchaser. It merely declares that a suit shall not be maintained against the certified purchaser on the ground that he was only the ostensible purchaser. In Bishan Dial v. Ghazi-ud-din 23 A. 175 : A.W.N. (1901) 44; Sasti Churn v. Aunopurna 23 C. 699 was not fully accepted but the learned Judges said that the section would not apply where the suit was based not on the ground that the purchase was benami but upon some other independent ground. It seams to us upon the facts of the case, inasmuch as the tenant paid rent to the father who brought him upon the land and after his death to his heirs, it is not barred under Section 66, Civil Procedure Code, simply because the father purchased the jote at an auction sale in the name of one of his sons. In Bodh Singh Doodhooria v. Guneschunder Sen 19 W. E. 356 : 3 Sar P.C.J. 253 : 12 B.L.R. 817 (P.C.) it was held that the provisions of Act VIII of 1859, Section 260, were designed to check the practice of making benami purchases, at execution sales, i.e., transactions in which one party secretly purchases on his own account in the name of another party. They cannot be taken to affect the rights of members of a joint Hindu family, who by the operation of law are entitled to treat as part of their common property an acquisition, howsoever made by a member in his sole name, if made by the use of the family funds. In this case a Muhammadan father bought the property with his money although in the name of one of his sons. He settled the land with a tenant who attorned to him and paid his heirs rent after his death. Having been brought upon the land by the father it is not open to the tenant to say after his death, although he had paid rent to the heirs, that he is not their tenant but the tenant of the son in whose name the sale certificate stood. To bold that the heirs are precluded from suing the tenant for rent under these circumstances would work great injustice. We hold that the appeal fails and it is dismissed with costs.