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1977 DIGILAW 304 (CAL)

Tinkori Ghose v. Kamala Kanti Ghose

1977-08-24

CHITTATOSH MOOKERJEE

body1977
JUDGMENT The judgment of the Court was as follows :–– This second appeal is at the instance of the defendant No. 1 in a suit for partition brought by the plaintiff-respondents claiming 1/3rd share in the suit properties which were recorded in Khatian Nos. 56 and 57 Mouza Cheliama and described in the schedule to the plaint. Dolegobinda Ghose was the common ancestor of both parties. Dolegobinda had three sons, namely, Shantiram, Tinkori and Prasanna. Kaminibala was the widow of Dolegobinda. The plaintiffs were the successors-in-interest of Shantiram, who died after Dolegobinda's demise. Tinkori and Prasanna brought a previous partition suit in respect of some of the properties left by Dolegobinda. But the properties recorded in Khatian Nos. 56 and 57, mouza Cheliama were not included in the plaint schedule of the previous suit. The lands included in Khatian No. 56 were purchased in the name of Kaminibala, the wife of Dolegobinda in a private sale. The Trial Court and the Lower Appellate Court upon consideration of the evidence have found that the said property was acquired by Dolegobinda in the benami of his wife Kaminibala. Therefore, the said property was liable to be partitioned amongst the plaintiffs and the defendants of the present suit. The Trial Court and the Lower Appellate Court have also believed the plaintiffs' case that Dolegobinda in the name of his son Tinkari had auction purchased the properties recorded in Khatian No. 57 and that Tinkori was a benamdar of his father Dolegobinda. Both the Courts of fact have found the said two items to be joint properties of the plaintiffs and the defendants. Accordingly a preliminary decree of partition declaring plaintiffs' 1/3rd share in both the items of property has been passed in the plaintiffs' favour. The lower appellate court has upheld the said decree. Hence this second appeal. 2. Both the Trial Court and the Lower Appellate Court have considered the evidence adduced by the parties and have applied correct legal tests for determining whether Kaminibala was a benamdar of her husband Dolegobinda in respect of Khatian No. 56 and whether Tinkori was his father's benamdar in respect of Khatian No. 57. Therefore, these findings of fact are not open to challenge in second appeal. Mr. Therefore, these findings of fact are not open to challenge in second appeal. Mr. Barun Kumar Roychowdhury, learned advocate for the appellant, has submitted that Section 66 of the Code of Civil Procedure was a bar to the maintainability of the instant suit in respect of Khatian No. 57. The plaintiff-respondents were precluded from claiming title in the said Khatian No. 57 on the ground that the auction purchase in the name of Tinkori was really on behalf of his father Dolegobinda through whom the plaintiffs claimed 1/3rd interest. 3. A copy of the sale certificate in the mime of Tinkori Babu was exhibited in the instant suit. The said sale certificate dated 29th September, 1916 was issued by the Deputy Collector under Section 11 of the Bengal Rent Recovery (Under-Tenure) Act, 1865 and not under the Code of Civil Procedure, 1908. 4. The only point in this second appeal is whether or not the bar under Section 66 of the Code of Civil Procedure would be attracted in the case it is claimed that an auction purchase made under the Bengal Rent Recovery (Under-Tenures) Act, Act VIII (B. C.) of 1865 was a benami one on behalf of some one through whom the plaintiffs claimed their title. 5. Section 66(1) of the Code of Civil Procedure, 1908, inter-alia, provides that no suit against a purchaser can be maintained on the ground of the auction purchase being on behalf of the plaintiff of the said suit. In other words, the Section does not permit a person from asserting that a certified auction purchaser is his benamdar. It is settle law now that the object of Section 66 is to discourage benami purchases at court-sales but not to render such purchases illegal but only to prohibit for reasons of public policy a suit against the certified purchaser on the ground specified in Section 66. The provisions of Section 66 should be construed strictly and should not be extended beyond its express terms. See (1) Mt. Buhuna Kowur v. Lalla Bhooree, (1870) 14 MIA 496 = 10 BLR 159 P. C., (2) Muhammad Abdul Jalil v. Muhammad Obaid Ullah, (1929) 56 IA 330 = AIR 1929 PC 228. 6. Sub-section (1) of Section 66 is applicable in case a suit is brought against any person claiming title "under a purchase certified by the Court in such manner as may be prescribed". 6. Sub-section (1) of Section 66 is applicable in case a suit is brought against any person claiming title "under a purchase certified by the Court in such manner as may be prescribed". According to Section 2(16) of the Code of Civil Procedure "prescribe" means "prescribe by Rules". Therefore, Section 66(1) protects purchases which are certified in the manner prescribed by the Rules under the Code of Civil Procedure. 7. In the instant case, the auction purchase in the name of Tinkori was made under the provisions of the Bengal Rent Recovery (Under Tenures) Act, 1865 (Bengal Act VIII of 1865). The said Act was passed by the Lieutenant Governor of Bengal in Council to amend the law for the sale of such under-tenures as by the title deeds or otherwise for the recovery of arrears of rent due in respect thereof. The Collector of Land Revenue under Section 3 of the said Act conducted sales for recovery of arrears of rent of Patni taluks and other saleable under-tenunes of the nature defined in Section 8(1) of Regulation VII of 1819. The Act V III (B.C.) of 1865 contained the procedure for publication of notices, conducting sales, for setting aside sales, delivery of possession, distribution of sale proceeds etc. Section 11 of the said Act, inter-alia, provided that when the purchase money had been paid in full, an officer holding the sale shall give the purchaser a certificate in the form prescribed in the schedule annexed to the said Act and shall further on the purchaser making application and depositing costs, put the purchaser in possession of the under-tenure and publish the fact of the said purchase. Therefore, the auction purchasers under the Act were certified in the manner laid down in the said Act and not according to the procedure prescribed in the Civil Procedure Code for execution of decrees. Sections 13 and 14 provided respectively for appeal and revision. Thus, the above provisions relating to sale of under-tenures were self-contained and not subject to the provisions of the previous or the present Code of Civil Procedure. 8. Therefore, I conclude that Section 66 of the Code would not apply in case it is claimed that an auction purchase was made by the defendant under the Bengal Rent Recovery (Under Tenures) Act of 1865 was a benami one. 8. Therefore, I conclude that Section 66 of the Code would not apply in case it is claimed that an auction purchase was made by the defendant under the Bengal Rent Recovery (Under Tenures) Act of 1865 was a benami one. It may be also pointed out that the defendants neither in the Trial Court nor in the Lower Appellate Court had raised any plea under Section 66 of the Code of Civil Procedure and in this Court they for the first time claimed that the plaintiffs' suit in respect of Khatian No. 57 was not maintainable in law. 9. The view I have taken in this case is supported by the Full Bench Decision of the Madras High Court in (3) Narayanasami Padayachi v. Govindasami Padayachi, ILR (1906) 29 Madras 473. The said Full Bench, inter alia, had that where land had been sold for arrears of revel1ue under the Revenue Recovery Act and the name of the Purchaser had been published under Section 39 of the Act, such promulgation did not preclude anyone subsequently from contending that such purchaser was only a benamidar and the real purchaser was some one else. Reference may also be made to the decision in (4) Haji Rajab Ali v. Shaikh Akbar Ali, AIR 1937 Patna 324. Tile Division Bench held that in case of sale under Chota Nagpur Tenancy Act, Civil Procedure Code would be inapplicable except so far as the provisions of the Code wert; applied to such matters by the Rules. A suit for partition of certain properties on the allegation that the properties were purchased by the plaintiffs and the defendant jointly in an auction sale in the name of the latter under the above Act was not barred under Section 66 of the Code. 10. Similar view was taken by a Single Judge of the Madras High Court in (5) Padmnaabha Iyer v. Visalakshmi Achi AIR 1938 Madras 283, with regard to auction purchase under Madras Revenue Recovery Act and the bar of Section 66 of the Code of Civil Procedure does not apply to such purchase. 11. 10. Similar view was taken by a Single Judge of the Madras High Court in (5) Padmnaabha Iyer v. Visalakshmi Achi AIR 1938 Madras 283, with regard to auction purchase under Madras Revenue Recovery Act and the bar of Section 66 of the Code of Civil Procedure does not apply to such purchase. 11. A Single Judge of the Madras High Court in (6) Muthukumaru Maniakarar and another v. Pathis Maniakarar, AIR 1942 Madras 154, held that Section 66 only applies to purchases made and sale certificates issued under the rules contained in Schedule I, Civil Procedure Code which makes provisions for sales in execution of decrees and issue of sale certificates for purchases made at those sales. The person who is not claiming title under a purchase certified by the Court under any of the rules framed under the Code of Civil Procedure would not be protected under Section 66. Therefore, Section 66 did not apply to sale in execution of a decree for arrears of rent by a revenue court under the provisions of the Madras Estates Land Act. 12. Hidayatullah (as he then was) and Kaushalendra Rao, JJ. in (7) Mst. Munnabi and others v. Mohanlal and others, AIR 1953 Nagpur 259, similarly held that the bar placed under Section 66 would not apply to a case of a purchase at a revenue sale held under Berar land Revenue Act, 1928. 13. All the above decisions lay down the proposition that Section 66 of the Code of Civil Procedure is applicable only to auction sales held under the Civil Procedure Code or to sales under any special laws which have been made expressly subject to the provisions of the Code relating to execution of decrees. I respectfully agree with the above interpretation of the scope of Section 66 of the Code of Civil Procedure. Accordingly, I conclude that the present suit for partition in respect of both items of property was maintainable in law. 14. It is therefore, not necessary for me to consider the correctness or otherwise of the submission of Mr. Dasgupta, learned advocate for the respondents, that Section 66 of the Code of Civil Procedure does not apply to a suit for partition. The said question was also mooted in (8) Jitendra Nath Sur and others v. Amarendra Nath Sur, AIR 1945 Cal 458 (463), but the learned Judges did not decide the same. Dasgupta, learned advocate for the respondents, that Section 66 of the Code of Civil Procedure does not apply to a suit for partition. The said question was also mooted in (8) Jitendra Nath Sur and others v. Amarendra Nath Sur, AIR 1945 Cal 458 (463), but the learned Judges did not decide the same. 15. I, accordingly, dismiss the second appeal. There will be no order as to costs.