JUDGMENT V. Khalid, J. 1. The plaintiff in O.S. No. 1024 of 1961 of the Munsiff's Court of Nadapuram is the appellant. The suit was one for partition and separate possession of the plaintiff's share. The plaint schedule properties belonged to one Moideen, the father of the plaintiff and defendants 1 to 3. They were gifted by him to the plaintiff and defendants 1 to 3 when they were minors, as per Ext. A-1, dated 24th September 1931. Their mother, the 4th defendant, was constituted guardian in the document. On the same day, Moideen executed an assignment deed, Ext. A-6, in favour of his wife, the 4th defendant, conveying about 30 items of properties. According to the plaintiff, she is entitled to ¼th share in all the properties including item 6. Item 6 was purchased by Moideen in the name of the 4th defendant at court auction. The 4th defendant was only a benamidar for Moideen. 2. Defendants 1 to 4 opposed the plaintiff's claim to a share in item No. 6. The 4th defendant denied that she was only a benamidar in respect of item 6 and contended that the property was her self-acquisition and that the gift could operate only regarding the other items. The gift was not acted upon so far as item No. 6 was concerned. 3. The trial court accepted the case of the plaintiff that the 4th defendant was only a benamidar for Moideen in respect of item No. 6 and directed partition of all the properties including item No. 6. The lower appellate court disagreed with the trial court and held that section 66 (1) of the Code of Civil Procedure was a clear bar against the plea of benami and held that item No. 6 was the self-acquisition of the 4th defendant. It is against the said judgment and decree that the plaintiff has come up in second appeal before this court. 4. Two questions arise in this second appeal, one the question of fact whether item No. 6 was purchased by Moideen benami in the name of the 4th defendant and the other a question of law whether the 4th defendant could successfully resist the suit under section 66 (1) of the Code of Civil Procedure. 5. 4. Two questions arise in this second appeal, one the question of fact whether item No. 6 was purchased by Moideen benami in the name of the 4th defendant and the other a question of law whether the 4th defendant could successfully resist the suit under section 66 (1) of the Code of Civil Procedure. 5. I may at the outset state that the plea under section 66 (1) C.P.C. was not raised before the trial court and that it was raised for the first time only before the lower appellate court although I do not hold that the 4th defendant cannot put forward the claim or bar under section 66 (1) C.P.C. For the first time in appeal, this has to some extent prevented the plaintiff from meeting the said case by appropriate pleadings. However, I do not propose to remand the case on this score for the reasons which follow. 6. According to the plaintiff, item No. 6 was purchased by her father Moideen with his funds in the name of his wife, the 4th defendant. A few months after the court auction purchase the gift was executed. It will be useful to extract the relevant portions of the gift deed for a proper appreciation of the contentions of the parties. The 4th defendant was constituted guardian in the gift deed Ext. A-1. The recital relating to item No. 6 is as follows:” xxx xxx xx The 4th defendant has no case that she did not accept the gift relating to the other items mentioned therein. The objection against the inclusion of item 6 is raised for the first time when this suit was filed in 1961 nearly 30 years after the gift deed. The recitals in Ext. A-1 establish beyond doubt that Moideen treated the properties as his own and he did not differentiate between item No.6 and the other items comprised in the gift deed. The document is clear and unambiguous regarding the intention of the donor. He had made it clear that the property was purchased in court auction by him and it was he who took delivery of the property through court. The 4th defendant as D.W, 2 has clearly admitted that her husband Moideen did not act against her interest in any manner till his death. He had made it clear that the property was purchased in court auction by him and it was he who took delivery of the property through court. The 4th defendant as D.W, 2 has clearly admitted that her husband Moideen did not act against her interest in any manner till his death. There was no evidence on the side of the 4th defendant to show that she had independent means to acquire this property in 1931. She pleaded complete ignorance of the acquisition of item No.6. The trial court has extracted that portion of the evidence which reads as follows: Page 6 Malayalam This evidence is conclusive to establish the case that the 4th defendant was only a benamidar. This is further strengthened by D.W. 2's admission that she had accepted the gift and that she knew the inclusion of this item in Ext. A-1 document only after the suit. She has clearly admitted that the document of gift was registered in the house where Moideen and herself resided. She knew about the gift deed even on that date. The trial court relied upon these circumstances to come to the conclusion that the 4th defendant was estopped from putting forward the plea that the gift deed cannot operate regarding item 6. 7. The lower appellate court on the other hand upheld the plea of the 4th defendant and held that the approach by the trial court both on the questions of law and fact was incorrect. That court rested its decision largely on the bar contained in section 66 (1) C.P.C. which reads: "66(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." It was held that the 4th defendant as the court auction-purchaser was perfectly within her rights in resisting the suit on the strength of the protection given under section 66 (1) C.P.C. The court posed the question whether Moideen could contend that the said auction purchase was benami and answered it in the negative, and then proceeded to hold that if Moideen could not successfully prosecute a suit against the 4th defendant, much less could the present plaintiff do who claims through Moideen. I am afraid the court below disregarded the subsequent events in considering the question. The contention would have been convincing and acceptable if there was not the intervention of Ext. A-1, gift deed accepted by the 4th defendant. The question posed by the lower appellate court whether Moideen himself would have been successful to maintain a suit against the 4th defendant has to be answered against this background. If there was no gift deed accepted by the 4th defendant, there would have been a clear bar under section 66 for Moideen to maintain the suit. But here Ext. A-1 has intervened. The recitals in Ext. A-1 extracted above would clearly indicate that Moideen had made the position absolutely clear and had put in beyond dispute that he was the real owner of item No. 6. It is the 4th defendant who is the guardian of the minors who are the donees under Ext. A-1 and this fact assumes very great importance in dealing with the question of bar under section 66 C.P.C. It has to be noted that section 66 restricts the court's equitable jurisdiction to grant relief to the real owner as against the ostensible owner and therefore it should be construed strictly and should not be extended beyond its actual terms. In this case, when the bar under section 66 C.P.C. was put forward the jural relationship of the parties had changed and the court was confronted with a changed situation where new rights were created with the 4th defendant auction-purchaser herself being a party to the document. In these circumstances, the matter has to be viewed taking into account Ext. A-1 and not ignoring it. The protection under section 66 has been destroyed with the coming into being of Ext. A-1 with its recitals and the 4th defendant herself being the guardian of the donees. 8. Ext. B-1 is the sale certificate, Ext. B-2 the certified copy of the delivery receipt and Ext. B-3 the certified copy of the Amin's delivery account. It was Moideen who took delivery of the property in court auction on behalf of the auction-purchaser. Exts. B-1 to B-3 are in June 1931 and we find the gift deed executed in less than three months from the date of Ext. B-3, the delivery account. This is not without any significance. It was Moideen who took delivery of the property in court auction on behalf of the auction-purchaser. Exts. B-1 to B-3 are in June 1931 and we find the gift deed executed in less than three months from the date of Ext. B-3, the delivery account. This is not without any significance. If anything, it manifests an intention on the part of Moideen to benefit his children and it is for this reason that the gift deed was executed so soon after the acquisition of item No. 6. I cannot accept the case of the 4th defendant that she was not aware of the inclusion of item No. 6 alone in the document although she was aware of the execution of the document on that date itself. What is more, we find that on the same day, i.e., 24th September 1931, Moideen having executed an assignment deed in favour of the 4th defendant comprising 30 items of properties and registered from his house. The consideration for the said document is mentioned to have been received by Moideen in cash from the 4th defendant. No amount exchanged hands before the Registrar and the said document was also registered from Moideen's residence. This document cannot be considered in isolation. It has a definite connection with Ext. A-1. At this distance of time when we consider the attack against the gift deed, it would be useful to remember that the 4th defendant has a second husband and children by him. The Supreme Court has observed as follows in Girijanandini Devi v. Bijendra Narain Choudhary, A.I.R. 1967 S.C. 1124 at 1130 regarding the plea under section 66 C.P.C.:” "Transactions which are called 'benami' are lawful and are not prohibited. When it is alleged that a person in whose name the property is purchased or entered in the public record is not the real owner, the court may, if the claim is proved, grant relief upholding the claim of the real owner. But section 66 (1) seeks to oust the jurisdiction of the court to give effect to real as against benami title. The object of the clause is to prevent claims before the civil court that the certified purchaser purchased the property benami for another person. Thereby the jurisdiction of the civil court to give effect to the real as against the nominal title is restricted and the section must be strictly construed. The object of the clause is to prevent claims before the civil court that the certified purchaser purchased the property benami for another person. Thereby the jurisdiction of the civil court to give effect to the real as against the nominal title is restricted and the section must be strictly construed. " The question whether the bar under section 66 C.P.C. corresponding to section 317 of the old Code would be available to the auction-purchaser in spite of the creation of new relationship by the intervention of a subsequent document came up for consideration in Kandasami Pillai v. Nagalinga Pillai, I.L.R. 36 Madras 564. In that case the first defendant was the auction-purchaser when the property was sold in execution of the decree against the 2nd defendant. The auction took place in 1904. The plaintiff purchased the property from the 2nd defendant in 1906, the plaintiff's case being that the auction purchase was really for the benefit of the 2nd defendant and that the first defendant was only a benamidar. Although the defendant put forward the plea that section 317 of the Code of Civil Procedure was a bar to the plaintiff's suit for injunction restraining the first defendant from interfering with his enjoyment the courts below negatived the plea in the circumstances of that case basing on the conduct of the first defendant. The conduct referred to consisted in the first defendant allowing the 2nd defendant to remain in possession of the land for a period of about three years after the auction sale without taking any steps to assert his own title and in his attesting the sale deed executed by the 2nd defendant in plaintiff's favour. He pleaded that he made the attestation without any knowledge of the contents of that document. This was not accepted by the courts. The courts held that there was clearly a case of estoppel against the first defendant and the plea under section 317 of the Code was not available to him. He pleaded that he made the attestation without any knowledge of the contents of that document. This was not accepted by the courts. The courts held that there was clearly a case of estoppel against the first defendant and the plea under section 317 of the Code was not available to him. The court quoted with approval the following passage from the Privy Council decision in Cairneross v. Lorimer, 3 Maca 829: "I am of opinion that, generally speaking, if a party having an interest to prevent an act being done has full notice of its having been done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous licensee." The Division Bench of the Madras High Court in that case held that the auction-purchaser was clearly estopped from putting forward his title to the property when he had attested the sale deed in favour of the plaintiff executed by the first defendant-judgment debtor. The case on hand is a stronger one. Here, the auction-purchaser, the 4th defendant, has accepted the gift deed, wherein clear recitals are made that the property did not belong to her. It has to be borne in mind that a suit is barred under this section only if it is based on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims. It cannot be said that the application of this section can be extended even in cases where relief is sought on certain facts which establish a new legal relationship between the parties, which entitle the plaintiff to rely on them as involving and creating effectual legal claims in his favour. It cannot be said that the application of this section can be extended even in cases where relief is sought on certain facts which establish a new legal relationship between the parties, which entitle the plaintiff to rely on them as involving and creating effectual legal claims in his favour. It is useful to extract the following observations of Their Lordships of the Privy Council in the decision reported in Ganga Sahai v. Keshri, A.I.R. 1915 P.C. 81: "In Their Lordships' opinion the provisions of that section (section 317 of the old Code) 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." The case on hand clearly establishes that a new and effectual legal claim has been created in favour of the plaintiff with the intervention of Ext. A-1 and as such the bar under section 66 cannot be effectively put forward. 9. On a consideration of the law on the point and the facts of the case I am satisfied that item No. 6 belonged to Moideen and that its inclusion in the gift deed was perfectly in order and cannot be questioned by the 4th defendant and as such the finding of the trial court in this regard has only to be sustained. 10. The only other point which needs consideration in this appeal which found acceptance with the lower appellate court is the one based on Exts. B-10 and B-11. The case is that the right which is sought to be partitioned is the right obtained under the court auction purchase. But the present right which the 4th defendant claims is under Exts. B-10 and B-11 which are long after the gift deed. Ext. B-10 is dated 18th January 1933 and Ext. B-11, 22nd August 1940. Ext. B-10 is a mortgage executed by Kanna Kurup and others to the 4th defendant and Ext. B-11, a registered assignment deed executed by Kungannad to the 4th defendant and others. Ext. B-10 is a fresh mortgage renewing an earlier mortgage Ext. B-9 which takes in not only item No. 6 but certain other items. Ext. B-1 has already stated, is an assignment deed which also takes in item No. 6 and other items. B-11, a registered assignment deed executed by Kungannad to the 4th defendant and others. Ext. B-10 is a fresh mortgage renewing an earlier mortgage Ext. B-9 which takes in not only item No. 6 but certain other items. Ext. B-1 has already stated, is an assignment deed which also takes in item No. 6 and other items. It was held by the lower appellate court that these rights were independent of Ext. A-1. Thus, the properties covered by Exts. B-10 and B-11 are not available for partition. The lower appellate court also found that even if the rights under Exts. B-10 and B-11 were acquired with the consideration obtained after surrender of the rights under the gift deed, even then the donee would be entitled only for the amount and not for the property subsequently acquired with such funds. Here, the lower appellate court disregarded the provisions in the gift deed and the directions given by the donor Moideen to the 4th defendant. The direction is that the properties should be acquired with the residuary income from the properties in the name of the minors. Exts. B-10 and B-11 are clearly acquisitions by the 4th defendant with the funds obtained after surrender of the rights which existed at the time of Ext. A-1. It cannot, therefore, be held that the rights under Exts. B-10 and B-11 are not available for partition. From the facts and circumstances of the case, I am persuaded to agree with the appellant's counsel that the 4th defendant is made a tool by some one from behind to defeat the interests of her children by the first husband. The judgment and decree of the lower appellate court are not correct and hence they are set aside and the decree and judgment of the trial court are restored. There will be a preliminary decree for partition declaring that the plaintiff and defendants 1 to 3 are entitled to a ¼th share in the plaint properties. The decree regarding mesne profits etc. of the trial court will stand. 10. The memorandum of cross objections relates to a matter which is concluded by the judgment and decree of the trial court. This was not taken up in appeal before the lower appellate court. Hence the cross objections are not maintainable. In the result, the second appeal is allowed and the memorandum of cross objections is dismissed. 10. The memorandum of cross objections relates to a matter which is concluded by the judgment and decree of the trial court. This was not taken up in appeal before the lower appellate court. Hence the cross objections are not maintainable. In the result, the second appeal is allowed and the memorandum of cross objections is dismissed. There will be no order as to costs.