Judgment The plaintiff is the appellant. His suit was for partition of two items of immovable properties in which his claim was for an 1/6th share. He obtained a money decree in O.S.No.160 of 1933 on the file of the District Munsiff’s Court, Periyakulam, against one Palanisami Chetti. The firm of which the 2nd and 3rd defendants were partners also obtained a money decree in another suit O.S.No.44 of 1933 on the file of the same Court against the said Palanisami Chetti. The suit properties were attached in execution of both the decrees by the respective decree-holders and proceedings for bringing the properties to sale were taken. The properties were put up for sale on 9th November, 1933 and 7th December, 1933, in execution of the decree in O.S.Nos.160 of 1933 and 44 of 1933 respectively. On the date of the first sale, that is, on 9th November, 1933, an agreement (Exhibit A-5) was entered into between the plaintiff’s agent representing the plaintiff and the agent of defendants 2 and 3 on their behalf. The substance of the agreement is whomsoever of the two decree-holders may take in auction the properties, the plaintiff would be entitled to an 1/6th share and defendants 2 and 3 to a 5/6th share, (the 1/6th and 5/6th shares being arrived at in proportion to the respective amounts of their decrees) and that the expenses of the sale should be met in the same proportion. In pursuance of the said agreement, item 2, which is of an extent of 69 cents, was purchased by the plaintiff in his name for a sum of Rs.71 and item 1 measuring 2 acres 67½ cents was purchased by defendants 2 and 3 in their names for Rs. 1001. Possession of the properties were delivered to the respective parties, item 2 on 20th March, 1924 and item 1 on 30th July, 1934. The accounts in respect of the sales appear to have been looked into by the parties and each has been claiming and receiving from the other his share of the expenses in the proportion of 1/6th and 5/6th as originally agreed upon. Exhibit A-21, dated 15th February, 1934, is an endorsement of payment of Rs.166-13-410 defendants 2 and 3 as and for the 1/6th share out of the sale price of Rs.1001 for item 1. Exhibit A-21, dated 15th February, 1934, is an endorsement of payment of Rs.166-13-410 defendants 2 and 3 as and for the 1/6th share out of the sale price of Rs.1001 for item 1. Exhibit A-12, dated 23rd July, 1944, is the copy of the account sent by the plaintiff to defendants 2 and 3 in respect of the sale price and expenses as regards item 2 and defendants 2 and 3 pay the 5/6th share payable by them. Exhibit A-7 is a similar extract of account of defendants 2 and 3 furnishing the details of the expenses relating to the sale of item 1 and evidencing the receipt of 1/6th share payable by the plaintiff of those expenses. Exhibit A-8, dated 13th April, 1935, is a further list of expenses in respect of which the plaintiff pays his 1/6th share. Exhibits A-9, A-10 and A-11 are similar further extracts of accounts relating to the expenses. There is also the evidence of the plaintiff’s witnesses that the produce of both the items of land were divided in 1936 in the proportion agreed upon. There is, therefore, no doubt that the parties had acted on the agreement excepting that the properties were not partitioned as per the shares agreed upon. On 5th March, 1937, the 2nd defendant on behalf of his firm assigned the entire item 1 under Exhibit B-1 to one Kodumudi Alagappa Chetti claiming that the firm was solely entitled to the property and without reference to the agreement entered into with the plaintiff. Alagappa Chetti in his turn sold item 1 along with his other properties to the 1st defendant under Exhibit B-2, dated 6th February, 1939. The purchases made by Alagappa Chetti and by the 1st defendant, who was a minor on the date of the sale in his favour, have been found to have been made with the knowledge of the agreement, Exhibit A-5. The truth and the binding nature of the agreement was denied by the defendants. But both the Courts have found that the agreement was true and was executed by the agent of the plaintiff and the agent of defendants 2 and 3 and that it was acted upon and that till 1936 they adjusted their rights relating to their proportionate share of the income. But both the Courts have found that the agreement was true and was executed by the agent of the plaintiff and the agent of defendants 2 and 3 and that it was acted upon and that till 1936 they adjusted their rights relating to their proportionate share of the income. The suit was, however, dismissed as being barred’ under section 66, Civil Procedure Code and confirmed in appeal by the learned Subordinate Judge of Dindigul. The only question therefore that requires to be determined in this suit is whether the suit for partition is not maintainable in respect of item 1 of the suit properties under section 66, Civil Procedure Code. The plaintiff claims title to a 1/6th share on the strength of the agreement, Exhibit A-5. The case in the plaint is that, since the amounts due under their respective decrees were not paid, both of them had to attach the same properties belonging to the judgment-debtor and bring them to sale, then they entered into an agreement, Exhibit A-5 that in order to recover the said debts both of them should jointly execute the decrees and that in case the properties were brought to sale and the same purchased by either of them both should be entitled in the proportion of 1/6th and 5,/6th respectively and, in pursuance of this arrangement, they brought the properties to sale and the plaintiff was’ only asking for a share consequent on the arrangement between himself and the 2nd and 3rd defendants. Section 66, clause (1), Civil Procedure Code which is the relevant provision is in the following terms: “No suit shall be maintained against any person claiming title under a purchaser 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.” The bar under this provision arises if the suit is laid on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims. The case set up by the plaintiff in answer to this objection in the lower Court was that this was not a case of a benami transaction but that the plaintiff and defendants 2 and 3 became partners in a joint venture to purchase the properties and a suit by a partner to get his share was not therefore affected. There has been a series of judicial decisions on the subject. The corresponding provisions in the earlier Codes are section 260 of the Act of 1859 and section 317 of the Act of 1882. The earliest case is Mussumat Buhuns Kovuur v. Lalla Buhooree Lall1, where a purchaser in a Court sale was resisted by the defendant in possession who pleaded that he was the real purchaser and that the purchase was made benami by the certified purchaser, it was found that the fact of the plaintiff’s title being certified as purchaser was not conclusive by section 260 of that Act and that section 260 was confined to a suit brought against a certified purchaser and did not embrace a suit brought by him against a party in possession. The plea of benami therefore was found to be permissible as a defence, though it could not found a cause of action for a suit for possession against the Court auction-purchaser. The Privy Council observed at page 525: “The object which the framers of the Code probably had in view was to prevent judgment-debtor becoming secret purchasers at the Judicial sales of their property, and to empower the Court selling under a decree to give effect to its own sale, without contention on the ground of benami purchase, by placing the ostensible purchaser in possession of what it had sold, and of insuring respect to that possession by enacting that any suit brought against him on the ground of benami shall be dismissed.” It was pointed out by the Privy Council that the Code has not made benami purchase unlawful and that therefore the real owner may set up his right against the benamidar when his possession is interfered with, as in that case. It was also observed that there was no reason for giving the provisions of the Code a larger operation than the language imported. It was also observed that there was no reason for giving the provisions of the Code a larger operation than the language imported. In Bodh Singh Doodhooria v. Gunesh Chunder Sen2, it was held that the provisions of section 260 of the Code of 1859 applied to ordinary benami purchases at execution sales but did not affect purchases of property by one member of a joint Hindu family in his own name with the joint funds. As regards the object of the provisions, the Privy Council observed at page 329: “They were designed to check the practice of making what are known as benami purchases at execution sales, i.e., transactions in which A secretly purchases on his own account in the name of B. Their Lordships think that they cannot be taken to affect the rights of members of a joint Hindu family, who by the operation of law, and not by virtue of any private agreement or understanding, are entitled to treat as part of their common property an acquisition, however made, by a member of the family in his sole name, if made by the use of the family funds.” In Monappa v. Surappa3, where a purchaser acted benami in buying the property, the initial deposit for the purchase having been paid by the person claiming to be the real owner, the balance having been found by the purchaser, and after the sale the real owner was allowed to continue in possession with an understanding that the purchaser would transfer the property on repayment of the balance of the purchase money, it was held, following the dictum of the Privy Council in Mussumat Buhuns Kowur v. Lalla Buhooree Lall1, that since the purchaser acknowledged that his purchase was benami and gave up possession on the understanding that he would transfer the property, sections 317 of the Code was no bar to the institution of the suit and that section 317 contains only a statutory direction that a benami purchase at an auction sale in execution of a decree shall not be accepted as the sole ground of a suit against the certified purchaser. In Sankunni Nair v. Narayanan Nambudiri4, Kumbalinga Pillai v. Ariaputra Padiachi5 and Patrachariar v. Ramaswami Chettiar6, where the purchases have been found to have been made by agents, suits for recovery of the properties were held not to be barred under section 317. In Sankunni Nair v. Narayanan Nambudiri4, Kumbalinga Pillai v. Ariaputra Padiachi5 and Patrachariar v. Ramaswami Chettiar6, where the purchases have been found to have been made by agents, suits for recovery of the properties were held not to be barred under section 317. In Venkatappa v. Jalayya7, a suit against the auction-purchaser for specific performance of an agreement to convey half a share of the immoveable property, which was purchased in Court auction under agreement subsequent to the purchase, but in pursuance of an arrangement even before the sale, that the property should be purchased in his name and one-half of it should be conveyed to the plaintiff after the sale, certificate was obtained, a Full Bench of our High Court held that such a suit was not barred on the ground that the purchase was made on behalf of the plaintiff within the meaning of section 66, Civil Procedure Code. It was also held that it was not a benami transaction at all and the allegation in the plaint that the auction-purchaser was a benamidar had not the effect of debarring the plaintiff under section 66, Civil Procedure Code, from maintaining the suit for specific performance. This decision was cited with approval by the Privy Council in Vadivelu Mudaliar v. Peria Manuka Mudaliar1. Here as well, there was an agreement prior to the sale that after the purchase the property will be conveyed by the appellant, in whose name the properties were allowed to be purchased. After the sales were made in the name of the appellant, the appellant bound himself by agreements to carry out the original agreement with the respondents. In suits by the respondents against the appellant for specific performance, the defence was that the suits were barred under section 66, sub-section(1). It was held that the fresh agreements made after the sale, though carrying out those made before the sale, were not affected by section 66 and the suits were therefore not barred. The Privy Council took the view that the subsequent agreements were unaffected by the section. It was held that the fresh agreements made after the sale, though carrying out those made before the sale, were not affected by section 66 and the suits were therefore not barred. The Privy Council took the view that the subsequent agreements were unaffected by the section. In Suryanarayana v. Venkata Subbarao2, the plaintiff’s property was sold in execution of a decree against him and it was bought by the defendant in his name but the entire amount of the sale price and expenses of the sale was admittedly furnished by the plaintiff, part of it on the day of sale and the balance four days after the sale. On the latter date the defendant addressed a latter to the plaintiff where he referred to the fact of the sale and of the plaintiff having got the defendant to bid at the sale at the plaintiff’s cost and concluded by stating that the said land shall be reconveyed to the plaintiff whenever required by him without demanding any consideration therefor. In a suit for specific performance of the agreement contained in the letter, the defendant pleaded section 66(1), Civil Procedure Code, in bar of the suit. It was held that the facts fell directly within the scope of the section 66(1), Civil Procedure Code. The decisions in Venkatappa v. Jalayya3, and Vadivelu Mudaliar v. Peria Manicka Mudaliar1 were distinguished. In that case it will be seen that the judgment-debtor himself entered into an agreement with a third party for purchase of the properties benami, he having provided the entire consideration and the fact that the agreement was subsequent to the sale was held not to make difference on the facts of the case, and if such a transaction were to be allowed, it would be frustrating the object of section 66(1) provisions of which, in the view of the Privy Council in Ganga Sahai v. Kesri4, “were designed to create some check on the practice of making what are called benami purchases at execution sales for the benefit of judgment-debtors.” In the present case, however, the suit was not for specific performance of any agreement subsequent to the sale and these decisions may not have any direct application, though subsequent to the sale the conduct of the parties would justify the conclusion that they confirmed the arrangement entered into and acted upon it and intended to stand by it. In Ganga Sahai v. Kesri4, one of the three joint decree-holders of a mortgage decree alone took out execution under section 231 of the Code stating that the other decree-holders had died, and praying that execution might be subject to the rights of their heirs and representatives. He obtained leave to bid at the sale, purchased the property in his own name, and furnished with a certificate of sale, got possession of the property. It was held in a suit by the heirs of the other decree-holders for the shares they were entitled to under the decree, that section 317 of the Code was not applicable as a defence to the suit, and that the plaintiffs were entitled to recover their shares of the mortgaged property. After referring to section 317 corresponding to section 66 of the present Code, it was observed in that decision as follows, at page 564:- " In their Lordships' opinion the provisions of that section have no application to the present case. They were designed to create some check on the practice of making what are called benami purchases at execution sales for the benefit of judgment-debtors and in no way affect the title of persons otherwise beneficially interested in the purchase." In Achhaibar Dube v. Tapasi Dube1, in execution of a joint decree on a mortgage one of the decree-holders obtained leave to bid at the auction sale and purchased the mortgaged property for the exact amount of the decree, namely, the mortgage debt, interest and costs. Satisfaction of the decree was entered up and the purchaser took possession of the property. It was held that section 317 of the Code of Civil Procedure did not preclude the other joint decree-holder from suing for a declaration that the property so purchased was the joint property of himself and the actual purchaser. After referring to the decision in Bodh Singh Doodhooria v. Gunesh Chunder Sen2, Richards, J., observed as follows at page 560: " It seems to me, however, that the principle of the reasoning of their Lordships of the Privy Council goes somewhat further than the case of a joint. Hindu family. For example, the reasoning would apply with equal force to the case of a partnership under the circumstances I have supposed above. Hindu family. For example, the reasoning would apply with equal force to the case of a partnership under the circumstances I have supposed above. I think also, if the allegations of the plaintiff were proved, that is to say, that the plaintiff being entitled to half of the debt and interest recovered against Babu Janaki Prasad, the defendants purchased the property by means of setting off the amount of the joint decree, and that the property so purchased from the date of purchase up to the commencement of the proceeding for partition was treated as joint property, that the plaintiff would, notwithstanding the provisions of section 317, be entitled to a declaration that the purchased property was under the circumstances joint property and must be treated as such in the partition proceedings." In Vishwanath Dhondiraj v. Pandharinath Ganesh3, a house was sold in execution of a decree. The 1st defendant was the certified purchaser, but half the money was supplied by the plaintiff. The plaintiff brought a suit claiming to recover half of the house by partition. The lower Courts dismissed the suit on the ground that it was a case of a joint venture to buy property at a Court sale and as the sale certificate was issued in the name of one only the suit was not maintainable under section 66, Civil Procedure Code. On appeal to the High Court, it was held that the case was one of partnership in a single transaction for the purpose of purchasing the property and that section 66 had no application to the facts of that case Macleod, C.J., after referring to the case in Achhaibar Dube v. Tapasi Dube1, observed as follows at page 604: " I do not think there is any difference between the case where one of the partners in a partnership, which is in existence for other purposes, buys property from the joint funds in his own name, and the case where there is a partnership in a single adventure in which two or more persons agree to unite their funds for the purpose of purchasing the property. There is no intention then of a secret purchase by one person in the name of another. It is a joint transaction. There is no intention then of a secret purchase by one person in the name of another. It is a joint transaction. The fact that it is conducted by one partner on behalf of himself and as agent of the other partner or partners, takes it out of the range altogether of benami transactions." Reliance was placed by the lower Court on the decision in Bishan Dayal v. Kesho Prasad4, where the plaintiff sued for possession of a half share of a certain property, of which the defendant was the certified purchaser at an auction sale in execution of some other person’s decree. The plaintiff alleged that the bid at the auction was made by the defendant on behalf of both the plaintiff and the defendant and the plaintiff was accordingly the owner of half the property. The parties were not members of a joint Hindu family, or of a partnership firm. It was held that the suit was barred by section 66, Civil Procedure Code, Sulaiman, C.J. and Bajpai, J., in dealing with the Privy Council case in Ganga Sahai v. Kesri5, observed at page 119 as follows: "It is urged before us that their Lordships intended to lay down that the rights of persons who are otherwise beneficially interested in the purchase can never be affected by the provisions of the section. We think that their Lordships intended to protect the interest of persons beneficially interested in the property purchased, other than those who claim to have made a benami purchase in the name of the auction purchaser, who are not entitled to maintain the suit contrary to the provisions of section 66. Further, the title of persons otherwise beneficially interested would not be affected......" The learned Judges, however, were unable to agree with the view expressed by the Bombay High Court in Vishwanath Dhondiraj v. Pandharinath Ganesh1. The decision in Bishun Dayal v. Kesho Prasad2, went up to the Privy Council and it was confirmed (vide Bishun Dayal v. Kesho Prasad 3), the Judicial Committee observing that it was sufficient to say that the only case pleaded by the plaintiff was that Ram Dayal derived his right to half of the village from the auction-purchase having been made in part on his behalf by Kesho Prasad, and no case independent of this purchase and basing title upon subsequent possession was traceable in the memorandum of appeal. The decision in Bishun Dayal v. Kesho Prasad2, was followed by the Patna High Court in Shiva Shankar Sah v. Manoharan Ray 4 , where it was held that section 66, Civil Procedure Code, operates as a bar to a claim by a person who alleges that the actual purchase was either on behalf of himself exclusively or of himself jointly with the certified purchaser, whether the purchase is alleged to be in execution of an express agreement or otherwise and the fact that the principal claims only to have provided a part of the purchase money and to be entitled to only a share in the property does not make any difference in principle. In Upendralal Pal v. Ajaharuddin Ahmad5, where the plaintiffs and three others had all decrees against a common judgment-debtor, and when the properties of the judgment-debtor were put up for sale, the decree-holders agreed that the properties would be purchased in the name of two of them and subsequently the properties would be divided in certain proportions, the parties having contributed towards the purchase in the said proportions, and when a suit was instituted for recovery of the plaintiffs’ shares, it was held that section 66 was a bar. The learned Judges were of opinion that the operation of section 66 cannot be ousted by the existence of any private agreement or undertaking and that the only cases in which section 66 could not come in are those where, independent of any agreement or undertaking, the plaintiffs had a right to the purchase by operation of law. In another case of the Calcutta High Court in Durgadas De v. Bagalananda De6, where the purchase was made by a member of the Dayabhaga family, not being the Karta, out of joint family funds and a suit was instituted by a member for recovering the share, the suit was held to be maintainable and the defence raised under sections 66, Civil Procedure Code, was rejected. The object with which the section was enacted as observed by the Privy Council in Bodh Singh Doodhooria v. Gunesh Chunder Sen7, and Ganga Sahai v. Kesri8, was approved. The object with which the section was enacted as observed by the Privy Council in Bodh Singh Doodhooria v. Gunesh Chunder Sen7, and Ganga Sahai v. Kesri8, was approved. The Bombay High Court in Nimalchand v. Madanlal9, did not agree with the view taken by the Calcutta High Court in Upendralal Pal v. Ajaharuddin Ahmad 5, that the operation of section 66 cannot be ousted by the existence of any private agreement or undertaking. In the Bombay case the facts are these: Two items of properties belonging to one Buda Vanjari in survey numbers 21 and 71 were mortgaged to the defendants in 1919. The plaintiffs purchased the equity of redemption of S.No.21 in 1923. The defendants instituted a suit on the mortgage. An agreement was then entered into between the plaintiffs and the defendants on 14th July, 1940, under which possession of S.No.21 was to be given to the defendants. In execution of his decree the defendants brought to sale and purchased both the items. The plaintiffs claimed half a share in S.No.71 as per the terms of the agreement entered on 14th July, 1940. A defence under section 66, Civil Procedure Code, was taken, relying on the observations of the Privy Council in Ganga Sahai v. Kesri8, that the provisions “were designed to create some check on the practice of making what are called benami purchases at execution sales for the benefit of judgment-debtors” and it was contended that the plaintiffs having purchased the equity of redemption in respect of one of the properties were in position of judgment-debtor and therefore it was a pure and simple benami transaction, which was sought to be prevented by the enactment of section 66. The learned Judges were of the opinion that it was not every private agreement or undertaking that necessarily attracted the application of section 66, nor could it be said that every private agreement or undertaking affecting the property sold at an auction sale was within the mischief of section 66. The learned Judges were of the opinion that it was not every private agreement or undertaking that necessarily attracted the application of section 66, nor could it be said that every private agreement or undertaking affecting the property sold at an auction sale was within the mischief of section 66. In the present case, the plaintiff attached the suit properties in execution of his decree and, if the properties had been sold, he would be entitled, at any rate, to rateable distribution of the proceeds of the sale along with the defendants, the other attaching decree-holders, and, to that extent, it cannot be said that he is not interested in the result of sale or would not be affected by allowing the properties to be sold without his interest being sufficiently protected. Though it cannot be that he had a beneficial interest in the properties sold, just as a member of a Hindu joint family where the Court auction-purchase is out of joint family funds, in the name of one of the members or in the case of a purchase of property in the name of one of the partners out of partnership funds, the plaintiff has certainly an interest to the extent of getting his decree satisfied out of the sale proceeds. His position, therefore, though not identical with, is analogous at least to, that of the joint decree-holders. This is therefore a case where it could not be said that the plaintiff’s claim is based on an agreement and solely for the reason that the purchase by the defendants was benami for him, though in respect of a share in the properties. He cannot be considered to be an absolute stranger to the transaction having no connection or interest in the properties, which were brought to sale. This will be sufficient to take this case away from the mischief of section 66, which, as laid down by the Privy Council, has been enacted to check benami purchases at execution sales for the benefit of or at the instance of judgment-debtors. The object is to discourage not only purchases for the benefit of the judgment-debtors, but also to discourage secret purchases, with a view to secure the best price for the properties in an open public auction and ensure the decree-holders the full benefit of their decrees. The object is to discourage not only purchases for the benefit of the judgment-debtors, but also to discourage secret purchases, with a view to secure the best price for the properties in an open public auction and ensure the decree-holders the full benefit of their decrees. But the scope of the section should not be extended so as to apply to cases like the present, where the decree-holders have, by an arrangement among themselves, sought to safeguard their interests without being defeated by the judgment-debtors. Such arrangements must be upheld and section 66 cannot be invoked to defeat such arrangements. It has been seen that section 66, Civil Procedure Code, has been held not a bar to suits instituted for recovery of possession of the properties, or for a share therein where, by operation of law, the plaintiff has been held to possess an interest, for instance, in cases of purchase by a manager of the joint family in the name of a member out of joint family funds, as was the case in Bodh Singh Doodhooria v. Gunesh Chunder Sen1,and Durgadas De v. Bagalananda De2, or of purchase by agent for the principal as in Sankunni Nayar v. Narayanan Nambudri3, Kumbalinga Pillai v. Ariaputra Padiachi4 and Patrachariar v. Ramaswami Chettiar5, or purchase by a partner as in Viswanath Dhondiraj v. Pandharinath Ganesh 6 and Bhudarsao v. Samarathmal7. The decision in Venkatappa v. Jalayya8 and Vadivelu Mudaliar v. Peria Manicka Mudaliar 9, are instances where the purchase was in pursuance of an agreement prior to the sale and ratified by a subsequent arrangement to re-sell, where also section 66 has been held to have had no application. The preponderance of authority of the various Courts in India tends towards the view that section 66, Civil Procedure Code, could be applied only when the suit is based on the sole ground that the purchase at the auction by the certificated purchaser is on behalf of the plaintiff, that is when the purchase is an ordinary benami transaction as it is commonly understood in this country, where the auction-purchaser is a benamidar of the plaintiff and where no other circumstances exist as to any antecedent relationship existing between the parties or any pre-existing interest in the properties arising under law or under any arrangement. What has to be discouraged is a pure and simple benami transaction in Court auction purchase by virtue of this provision. If it is shown that there is some independent pre-existing interest in the properties sold or the plaintiff is otherwise interested in the result of the sale and, if in these circumstances, an arrangement is entered into whereby the property is purchased in the name of one and subsequently the plaintiff was to be given a share or an interest in the same, it cannot be held that such a transaction is a benami transaction which is hit by section 66, Civil Procedure Code. It must be borne in mind that benami transactions are not as such held to be illegal. On the other hand, in cases where the real owner claims title on the ground that the property was purchased benami, Courts have endeavoured to give effect to the real title notwithstanding that the ex facie title was in another. It is necessary to apply section 66, Civil Procedure Code, strictly and confine it to cases which come within the specific language of the provision and not extend its scope to cases where it would be necessary in the interests of justice to give effect to the real nature of the transaction. In the result the appeal is allowed with costs throughout. No leave. [The order calling for a finding on other issues and orders thereon are omitted as unnecessary for the purpose of this Report.] R.M. ----- Appeal allowed.