Civil Appeal No 1626 of 1973
Appeal by Special Leave from the Judgment and Order dated 16 9 1971 of the Calcutta High Court in Appeal from Original Decree No 20966
section N Andley K C Sharma Prem Malhotra and Uma Datta for the appellant
342 L N Sinha G section Chatterjee D N Mukherjee and D P Mukherjee for the Respondent
The Judgment and Order of the Court was delivered by KAILASAM J
This appeal is by plaintiff 1 legal representatives of plaintiff 2 and plaintiff 3 by certificate granted by the High Court Calcutta against its judgment dismissing the suit
The suit was filed by the plaintiffs for the declaration of each of the plaintiffs  title to the extent of 14th share each and in all 34th for all the plaintiffs of the suit property and the premises with the findings that the suit property and the premises were purchased in co ownership awarding the plaintiffs and the defendants equal 14th share each in terms of the agreement dated 241960 and for partition of the suit property and premises in equal 14th share each and for a decree of Rs 45000 with further accruals by way of receipt of further rent till full realisation of the claim
In the alternative a decree for accounts of the dissolved partnership on declaration of dissolution of the same and partition of the suit property and premises in equal 14th share to each of the plaintiffs and the defendant by metes and bounds
The defendant in his written statement denied the claim of the plaintiff and contended that the suit property was never purchased in co ownership or that the plaintiffs were entitled to 34th share
He contended that plaintiffs 2 and 3 advanced Rs 10000 each as loan and that they had no claim to the property he having purchased the property in court auction as the absolute owner
The trial court decreed the suit
The defendant preferred an appeal to the High Court which accepted the appeal and dismissed the suit
The facts of the case may be shortly stated
The suit property in Darjeeling belonged to one Harbhajan Singh Wesal
He executed a mortgage in favour of the Calcutta National Bank Ltd The bank instituted a suit against Harbhajan Singh Wesal for recovery of Rs 182403 11 3 and for enforcement of the mortgage
Pending suit the Calcutta National Bank was wound up and the High Court of Calcutta passed a decree against Harbhajan Singh and appointed the Official Liquidator of the Calcutta National Bank as Receiver of the mortgaged property including the suit properties
On 5 9 1959 a final decree was passed directing the sale of the mortgaged property including the suit properties at Darjeeling by public auction subject to confirmation by the Court
The defendant Prafulla Kumar Chatterjee was interested in buying the property in Darjeeling
He was negotiating with the Receiver for 343 the purchase of Darjeeling properties
On 1061959 he received a letter from D N Mukherjee advocate advising him to give an offer to the Receiver and on 22659 the defendant obtained an engineering estimate and made an offer to the Receiver to purchase the property for Rs 32000
On 201159 an advertisement appeared in the newspaper by PW 1 K K Kshetry Solicitor of the bank for auction of the suit property
The property was auctioned on 15th December 1959 and the defendant offered the highest bid for Rs 30000
On the same day the defendant deposited Rs 7500 
While the sale was awaiting confirmation by the High Court a higher offer was made by one Baidyanath Garsi and thereupon the defendant offered Rs 40000 which was accepted by the court and the sale in favour of the defendant was confirmed by the the High Court for a sum of Rs40000 on 19160
The defendant deposited a sum of Rs 2500 in addition to Rs 7500 that had already been deposited
The defendent was granted three months  time for depositing the balance sum of Rs 30000
The defendant did not have funds to pay the balance of Rs 30000 and had to raise the amount
On 241960 an agreement was entered into between the three plaintiffs and the defendant
The suit by the plaintiffs is mainly based on this agreement P 45 dated 2460
The agreement is signed by the three plaintiffs as well as by the defendant
According to the recital in the agreement the parties after learning from the notification in the newspaper of the sale of the suit property agreed between themselves to call the bid jointly in co ownership in the name of the defendant and that in pursuance of the agreement the defendant was deputed to call the bid
The agreement further states that accordingly the defendant was sent to Calcutta and the bid at the auction which was finally knocked down on 19160 for a sum of Rs 40000 in the name of the defendant
The agreement also provided that the plaintiffs and the defendants would be entitled to equal shares in the property
Another term of the agreement provided that the conveyance shall be drawn in the joint names of the parties by obtaining leave from the High Court
On 7460 the defendant executed two receipts Exs 22 and 22A in favour of the second and the third plaintiffs respectively
It is recited in the receipt that the defendant received a sum of Rs 10000 as the share of the purchase price of the property sold in public auction by the Official Liquidator in pursuance of the agreement amongst themselves
Though the receipt was typed in Darjeeling on 7460 the defendant signed the receipt at Calcutta on 11 4 60
In the meantime on 8460 the defendant filed an application in the High Court of Calcutta praying that the time for completion of the sale be extended by three months from 19 4 60 and the conveyance be executed in 344 favour of the three plaintiffs and himself
On 11 4 60 a sum of Rs 30000 was paid to MR Kshetry
The request for the conveyance to be made in favour of the three plaintiffs and the defendant was given up and the court directed the execution of the conveyance in favour of the defendant alone
On 17 6 60 a conveyance was executed by the Registrar of the High Court and the Receiver in favour of the defendant alone in pursuance of the order of the court dated 11 4 60
On 2 1 61 the plaintiffs served a notice on the defendant calling upon him to partition the property and deliver their shares and render accounts
On 3 6 61 the plaint in the suit was filed
The plaintiffs apart from oral evidence very strongly rely on three documents to prove that they are joint owners and are entitled to 34th share in the suit property
The first document is the agreement between the parties dated 2460
The second are two receipts dated 7460 issued by the defendant in favour of plaintiffs 2 and 3
The third document is the application filed by the defendant on 8 4 60 in the High Court praying that the conveyance may be effected in favour of the three plaintiffs and himself
The case for the plaintiffs is that between 20th and 23rd November 1959 there was an advertisement in the newspapers by the Official Receiver announcing the sale of the suit property
According to the plaintiffs the three plaintiffs and the defendant mutually agreed to call the bid jointly in co ownership in the name of the defendant and to purchase the property in equal shares contributing equally the bid money and the other costs as might be incurred for the conveyance of the property
It was further agreed that the plaintiffs and defendant would have equal share in the property
According to the plaintiffs in pursuance of the agreement the defendant was sent to Calcutta where he bid on 151259 for Rs 30000 and the bid was confirmed by the High Court on 19160 for a sum of Rs 40000
Out of the bid money a sum of Rs 7500 was paid to the Receiver on 151259 and a sum of Rs 2500 on 19 1 60 and the balance of Rs 30000 on 11 4 60
In the meantime it is stated that the plaintiffs and the defendants considered it advisable to have the verbal agreement between them reduced to writing and thus the agreement dated 2460 came into existence
After the full bid money was paid the plaintiffs contributing equally a deed of conveyance was executed on 17 6 60 and registered at Darjeeling
According to the mutual agreement the parties were entitled as co sharers to enjoy and occupy the suit property in co ownership and were also entitled to income from them
It was further agreed that the defendant would manage the joint property for the co owners of the property and the defendant would realise the rents for and on behalf of the parties with liability to pay the respective shares 345 to each of the plaintiffs
The defendant on the other hand submitted that he was trying to purchase the suit property from the previous owner Harbhajan Singh by private negotiations before the proceeding was started for auction sale
The defendants efforts to purchase the property from the owner proved abortive and he decided to purchase the suit property in the auction sale when the property was advertised for sale
As the defendant was not acquainted with the procedure of court s sale he approached the first plaintiff for legal service and the first plaintiff gave directions as to how the defendant should proceed
The defendant denied that he was sent by the plaintiffs to Calcutta for calling the bid
According to him he went of his own accord attended the public auction on 151259 and offered Rs 30000 for purchasing the property and when the bid was accepted he paid Rs 7500 and that money belonged to him alone
Eventually the sale was confirmed in favour of the defendant for Rs 40000 and he paid a sum of Rs 2500 in court to make up Rs 10000 ie One fourth of the bid amount all by himself As the defendant had to pay the balance of Rs 30000 and as he was in short of funds he approached the first plaintiff who was his lawyer and asked for his advice
As the time for payment of balance amount was fast approaching the defendant frantically tried to find a person who could advance him temporary loan of Rs 20000 which amount he needed for completing the purchase
As he was not successful he requested the first plaintiff to find from amongst his clients persons who could make temporary advance of the amount
According to the defendant in the first week of April 1960 the first plaintiff informed the defendant that two of his clients namely plaintiff Nos 2 and 3 were agreeable to advance the requisite amount but in view of the provisions of Bengal Money Lenders  Act they were not willing to advance the amount unless some sort of safeguards were provided for and the transaction was not described as loan
The first plaintiff drafted a document in the form of an agreement and the defendant signed it under the advice and suggestion of the first plaintiff on the understanding that the document was not intended to be acted upon and was only to remain as a security for the loan and that the recitals in the said document do not represent the real nature of the transaction
The defendant admitted that plaintiffs 2 and 3 advanced to the defendant a sum of Rs 10000 each by way of loan and the defendant had to sign in their favour the documents acknowledging the receipt of the loan
The defendant denied that the plaintiffs and the defendant contributed equally for payment of the bid money or in defraying the incidental costs in equal shares
The defendant asserted that he alone paid the entire bid money and bore all the incidental expenses and that there was never any co ownership or co 346 partnership
He submitted that as the conveyance was executed exclusively in his favour the plaintiffs had no right to the property
The plaintiffs have sought to prove that the parties after learning from the notification in the newspaper of the sale of the property agreed between themselves to call the bid jointly in co ownership in the name of the defendant and in pursuance of that agreement the defendant paid the deposit
Further it is the plaintiffs  case that in pursuance of the agreement the defendant was sent to Calcutta where he bid at the auction which was finally knocked down for the benefit of all
The plaintiffs  claim that they contributed 14th of the price of the property and the expenses ie Rs 13500 each
Further it was contended by the plaintiffs that the bid by the defendant was for the benefit of the three plaintiffs and the defendant and that it was agreed that the conveyance should also be in favour of all of them
It is seen from the evidence that the defendant was interested in buying the property alone before the advertisement appeared in the newspapers on 20 11 59 and 23 11 59
The defendant received exhibit V a letter dated 10 6 59 from D N Mukherjee advocate advising him to give an offer to the Receiver so that he can place the matter to the court for an order for sale by private negotiation
Soon after the defendant obtained an engineering estimate of the value of the property under exhibit M and in accordance with the valuation wrote exhibit L on 22659 to K K Kshetry offering Rs 32000 for the property
On 15 12 79 the defendant went to Calcutta by himself and made a bid for Rs 30000 and deposited Rs 7500 of his money
The plaintiffs admit that the entire deposit was made by the defendant but pleaded that it was agreed that on accounts being taken the expenses will be shared by the plaintiffs
Due to a third party making a higher offer the defendant had to raise the bid for Rs 40000
It is also not in dispute that the defendant by himself paid Rs 2500 over Rs 7500 already paid to make 14th of the bid amount
The bid for Rs 40000 was made by the defendant alone
On behalf of the plaintiffs it is stated that 2 or 3 days after the advertisement appeared the defendant went to the first plaintiff and told him that he did not have sufficient funds and requested the first plaintiff to join him to purchase the property and that 2 or 3 days later plaintiff 3 and son of plaintiff 2 came to first plaintiff and expressed their desire to purchase the property and the plaintiff advised them to purchase the property jointly with the defendant in shares
Plaintiff 3 Daluram Agarwala deposing as PW 5 does not support this case
In cross examination PW 5 stated that on November 24 or 25 1959 he and one N K Aggarwala who is the son of plaintiff No 2 went to see the first 347 plaintiff
It was decided among them that the property would be purchased in the names of all the four of them the plaintiffs and the defendant
He would further say that the defendant on return from Calcutta towards the end of December 1959 stated that the property had been purchased in the names of three plaintiffs and the defendant
It is thus the case of PW 5 that the defendant was sent by all the three plaintiffs to bid on their behalf and that the defendant bid on behalf of all of them
PW 7 the son of the second plaintiff would state that it was agreed that the property would be bought in the name of the defendant and that there was no talk that it would be purchased in the names of all the four of them
It is rather inexplicable as to how plaintiffs 2 and 3 who wanted to buy the property separately for themselves agreed to purchase jointly for the benefit of all of them
It is also difficult to accept the plea that palintiffs 2 and 3 went to the first plaintiff who is an advocate and there agreed to purchase the property in equal shares between the defendant first plaintiff and themselves
The second plaintiff had an office in Calcutta and the Calcutta office had a Munim and three other partners in whom they had complete confidence
In the circumstances it is strange that they wanted the first plaintiff to be a co sharer so that he could attend to all the legal questions
There is no explanation as to why plaintiffs 2 and 3 who were independant businessmen would join to purchase the property
The explanation that the agreement was arrived at to keep the bid low is purile
The evidence discloses that the plaintiffs were taking active part in the transaction after 241960 while between November 1959 when the advertisement appeared and the date of agreement there was comparative quiet which fact probablises that the plaintiffs were not taking any part in the activities of the defendant regarding the bid in the court auction of the property
The dealings of plaintiffs 2 and 3 show that they were dealing with the defendant at arms  length insisting on passing of a receipt for their payment of Rs 20000 and accompanying the defendant and paying the money to the Receiver themselves
It is highly improbable that they would have deputed the first defendant to go and bid on their behalf
There is no explanation as to why their share of the bid of Rs 30000 or the subsequent bid for Rs 40000 was not paid by them
The story that before the defendant bid for the property for Rs 30000 there was an agreement between the plaintiffs and the defendant that the bid should be on behalf of all of them cannot be accepted
The next question that arises is whether the plaintiffs have proved their case that plaintiffs 1 2 and 3 each of them paid Rs 13500 Rs 10000 being their share of the bid money and Rs 3500 towards expenses
The two receipts Exs
22 and 22A are acknowledgements by 348 the defendant of receipt of Rs 10000 from each of the plaintiffs 2 and 3
The defendant admits that he did receive Rs 10000 from each of the plaintiffs 2 and 3 but his case is that it is a loan
There can be no doubt that the defendant was paid Rs 10000 by each of the plaintiffs 2 and 3
The case of the plaintiffs is that they paid in addition Rs 3500 each towards expenses
There is no receipt for this extra payment
But the plea on behalf of plaintiffs 2 and 3 is that the son of the second plaintiff paid Rs 27000 to the Receiver Kshetry personally representing the share of plaintiffs 2 and 3 of Rs 13500 each
We find it difficult to accept the story for plaintiffs 2 and 3 were reluctant to part with Rs 10000 each without receipt even though the first plaintiff assured that there was no need for a receipt
In fact the money was not parted with by them till the second plaintiff s son accompanied the defendant to Calcutta and paid it in person to the Receiver
In such circumstances it is not possible to accept the plea of plaintiffs 2 and 3 that they did not insist on a receipt for payment of Rs 3500 each
In this connection the evidence of PW 1 Kshetry that out of the sum of Rs 30000 paid in cash Rs 27000 was handed over to him by Narendra Kumar Aggarwal and only the balance was paid by the defendant was relied on by the plaintiffs to show that the share of plaintiffs 2 and 3 of Rs 13500 each was paid
According to the defendant second plaintiff s son Narendra gave him Rs 20000 and he had Rs 10000 and he and Narendra counted Rs 30000 and handed over the sum of Rs 30000 to Kshetry in the presence of the Judge
On the evidence the High Court came to the conclusion that the money was counted by Narendra and the defendant before it was paid to Kshetry and if Narendra handed to the Solicitor a sum of Rs 27000 after counting the inference that Rs 27000 belonged to plaintiffs is not justified
We agree with the view taken by the High Court
We therefore find that plaintiffs 2 and 3 have not proved that they paid Rs 3500 each towards the expenses
The evidence relating to payment by the first plaintiff is even worse
According to the first plaintiff who examined himself as PW 2 on 2nd April 1960 when the agreement was signed he paid Rs 10000 as his share of purchase price and Rs 2500 towards cost Rs 12500 in all in cash to the defendant
He did not consider it necessary to take a receipt in view of the signed agreement which he thought was sufficient acknowledgment of the liability by the defendant
The first plaintiff was cross examined about the availability of the sum with him
He admitted that he had no accounts and that the payment of Rs 12500 is not recorded any where
The first plaintiff would add that he paid another Rs 1000 by issuing a cheque in favour of the third plaintiff with a direction that the third plaintiff should pay the 349 sum of Rs 1000 to the defendant towards expenses
A cheque was no doubt drawn by the first plaintiff in favour of the third plaintiff but there is nothing to indicate that this amount was to be paid to the defendant
The third plaintiff did not obtain any receipt from the defendant
The High Court rightly rejected the plea on behalf of the first plaintiff that the proceeds of the cheque were paid to the defendant
On the record there is hardly any acceptable evidence for establishing the payment of Rs 13500 by the first plaintiff to the defendant or the payment of Rs 3500 each by the plaintiffs 2 and 3 to the defendant
There is no explanation by the plaintiffs as to how the conveyance came to be registered in the name of the defendant only when the agreement was that it should be taken in the name of the three plaintiffs and the defendant jointly
The agreement contemplated taking of the conveyance in the names of the three plaintiffs and the defendant and in fact the application made by the defendant to the court prayed that the sale be confirmed in favour of the three plaintiffs and the defendant and the conveyance issued in their joint names
But the application for confirmation in the joint names was not pressed and the conveyance was ultimately made in favour of the first defendant alone
There is no explanation as to why the plaintiffs did not insist on the bid being confirmed in the names of all of them and the conveyance issued in their joint names
Equally on the side of the defendant there is no explanation as to why the signed the agreement which povided that the sale should be for the benefit of all of them and as to why he applied to the court praying for the confirmation of the sale in favour of all of them
Neither has the defendant denied receipt of Rs 10000 from each of the plaintiffs 2 and 3
There is no provision for payment of interest by the defendant to plaintiffs 2 and 3 for the sums advanced
If it had been loan simpliciter there could be no explanation for absence of provision for payment of interest
On a close analysis of the evidence led on behalf of the plaintiffs and the defendant we agree with the High Court that neither the version of the plaintiffs nor that of the defendant discloses the entire truth
The conclusion we arrive at on the evidence is that the plaintiffs have failed to prove any prior agreement before the defendant made his bids for Rs 30000 and later for Rs 40000 and paid the deposits amounting to Rs 10000 by himself
Plaintiffs 2 and 3 have failed to prove that they have paid Rs 3500 each towards expenses in addition to payment of Rs 10000 by each of them which is admitted
The first plaintiff has totally failed in proving that he had paid any part of the consideration
On the side of the defendant there is no explanation as to why he subscribed to the 350 agreement agreeing to share the property along with the three plaintiffs and for his applying to the court for confirmation of the sale in favour of all of them
Neither is there any explanation by him as to why plaintiffs 2 and 3 advanced Rs 20000 without interest
Taking all the circumstances into account we feel the irresistible inference is that the defendant having made the bid by himself later on found himself badly in need of money to pay the balance of the bid amount
In trying to find the money he sought the help of the plaintiffs and received payment of Rs 20000 from plaintiffs 2 and 3
The crucial question is whether this amount was received merely as a loan as contended by the defendant or given on the agreement that plaintiffs 2 and 3 should be entitled to a share each
The conduct of the defendant shows that while he badly needed the money he was not willing to share the property with them for the amount
Equally plaintiffs 2 and 3 wanted the share in the property for the money advanced by them
It is clear that the money was not advanced as a loan
It may be that the plaintiffs 2 and 3 were insisting on a hard bargain but it cannot be denied in the circumstances in which the defendant was placed that he had accepted it
The condition insisted upon by plaintiffs 2 and 3 might not have been fair but the agreement arrived at in the circumstances cannot be said to be due to undue influence
The relief to which the plaintiffs are entitled to under the agreement cannot be denied
The High Court after observing that plaintiffs 2 and 3 who are businessmen would not have lent a large sum of money without charging interest and that it is not likely that the plaintiffs would have been so charitable towards the defendant who was a stranger was of the view that it was not necessary to examine the defendant s financial position and record a finding on the point for the purpose of appeal
While holding that the defendant s version also does not disclose the entire truth the High Court held that would not help the plaintiffs who have to prove the case they set up in the plaint
On the short ground that the agreement dated 2nd April 1960 does not reflect the true nature of the transaction the High Court held that the suit must fail
We are of the view that if the amount was not advanced as a loan but paid towards acquiring of a share in the property the relief cannot be denied
In the circumstances the plaintiffs 2 and 3 are entitled to 14th share each in the property on their payment of their share of the expenses ie Rs 3500 each
The defendant has been in possession of the property ever since the purchase and the plaintiffs are entitled to their share of the rents collected by the defendant
We estimate the share of the rents collected for each of the plaintiffs at Rs 25000
The result is the appeal is allowed to the extent that there will be a decree for partition and separate possession of 14th share 351 each of plaintiffs 2 and 3
Plaintiffs 2 and 3 will pay to the defendant Rs 3500 each and interest at 10 per cent per annum from the date of the conveyance and receive Rs 25000 each from the defendant towards their share of the rent collected upto date
The first plaintiff will not be entitled to any relief and the suit so far as he is concerned is dismissed
There will be no order as to costs
Before we conclude we will shortly refer to the question of law raised by Mr L N Sinha on behalf of the defendant
He submitted that as the title in the property vested in the defendant by confirmation of the court sale and later by a registered conveyance the plaintiffs cannot seek relief on the unregistered agreement exhibit 4 as conveying any title to them
This point was not taken in any of the courts below but learned counsel submitted that because it is a pure question of law not involving any investigation of facts and as it goes to the root of the matter the court may permit the point to be taken
In support of his contention that a pure question of law in the circumstances can be taken for the first time in this Court he relied on the decisions of this Court in Yaswant Deorao Deshmukh vs Walchand Ramchand Kothari1 Raja Sri Sailendra Narayan Bhanja Deo vs The State of Orissa 2 Seth Badri Prasad and others vs Seth Nagarmal and others3 State of Uttar Pradesh  Anr
vs Anand Swarup4 and T G Appanda Mudaliar vs State of Madras5
As the point raised is a pure question of law not involving any investigation of the facts we permitted the learned counsel to raise the question
The plea of the learned counsel is that as the title has vested in him by virtue of the confirmation of the sale and the registered conveyance the plaintiff cannot rely on the unregistered agreement
In support of his contention the learned counsel relied on the decision of the Privy Council in G H C Ariff vs Jadunath Majumdar Bahadur6 and Maritime Electric Co Ltd vs General Dairies Ltd7
In G H C Ariff vs Jadunath Majumdar Bahadur it was doubted whether the English equitable doctrine can be applied so as to modify the effect of an Indian statute
The court expressed itself thus but that an English equitable doctrine affecting the provisions of an English statute relating to the right to sue upon a contract should be applied by analogy to such a statute as the Transfer of Property Act and with such a result as to create without any writing an interest which the statute says can only 352 be created by means of a registered instrument appears to their Lordships in the absence of some binding authority to that effect to be impossible
The Court further observed Their Lordships do not understand the dicta to mean that equity will hold people bound as if a contract existed where no contract was in fact made nor do they understand them to mean that equity can override the provisions of a statute and where no registered document exists and no registrable document can be procured confer upon a person a right which the statute enacts shall be conferred only by a registered instrument In Meritime Electric Co Ltd vs General Dairies Ltd supra the court observed  where as here the statute imposes a duty of a positive kind not avoidable by the performance of any formality for the doing of the very act which the plaintiff seeks to do it is not open to the defendant to set up an estoppel to prevent it
The decisions are clear that the plaintiffs cannot succeed in displacing the title of the defendant on the basis of the unregistered agreement
But this will not help the defendant as the suit is based on the plea that the suit property and the premises were purchased in co ownership ie on a claim that the plaintiffs were the real owners of the property
The claims of the plaintiffs as a real owner is not based on the unregistered agreement alone
On the pleadings in the case the question of law raised cannot result in the suit being dismissed as not maintainable
The second question the learned counsel raised was that the suit is barred under section 66 of the Civil Procedure Code
The trial court overruled the plea on the ground that although the sale in question is a court sale it is not according to the rules prescribed by the Civil Procedure Code but only according to the Rules of the Calcutta High Court on the original Side
The learned counsel submitted that the purpose of section 66 Civil Procedure Code applies equally to court sales conducted under Rules of Civil Procedure Code as well as those conducted under the High Court Rules
Reliance was placed on a decision of the Privy Council in Bishun Dayal vs Kesho Prasad and Anr1 where the only case pleaded by the plaintiff was that the person through whom he claimed derived his right to half of the village from the auction purchase having been made in part on his behalf by the auction purchaser it was held that the claim was barred by section 66 Civil Procedure Code inasmuch as no case independent of auction purchase and basing title upon subsequent possession was put forward in the plaint
Section 66 of the Civil Procedure Code runs as follows 661
No suit shall be maintained against any person claiming title under a purchase certified by the Court in such 353 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 2
x x x x x section 66 prohibits any person claiming that a purchase certified by the court in such manner as may be prescribed in favour of a person was made on behalf of the plaintiff
In order to invoke the prohibition it is necessary to establish that the person against whom the suit cannot be maintained is a person claiming title under a purchase certified by the court in such manner as may be prescribed
A certificate by the court for the purchase in the manner prescribed is therefore essential
The word prescribed is defined under section 216 of the Civil Procedure Code as meaning prescribed by Rules
The provisions as to grant of a certificate by a court under a purchase is prescribed in Order 21
Order 21 Rules 64 to 73 prescribe the procedure relating to sale generally while Rules 82 to 108 prescribe the procedure relating to sale of immovable property
When the court makes an order confirming the sale under order 21 Rule 92 the sale becomes absolute
After the sale becomes absolute under Rule 94 the court shall grant a certificate specifying the properties sold and the name of the person who at the time of the sale is declared to be the purchaser
Such certificate is required to bear the day and the date on which the sale became absolute
The certificate by the court referred to in sec
66 is a certificate under order 21 Rule 94
The procedure envisaged for sale generally and sale of immovable property under Order 21 is sale by a public auction
Sale by a court through the Receiver appointed by court is not contemplated under these provisions
In a sale by a Receiver a certificate to the purchaser under Order 21 Rule 94 is not given by the Court
Therefore the prohibition under sec
66 cannot be invoked in the case of a sale by the Receiver
A Receiver is appointed under Order 40 Rule 1 and a property can be sold by the Receiver on the directions of the court even by private negotiations
The requirement of section 66 of the CPC is a certificate by the court as prescribed
In this case the conveyance exhibit 5 was in accordance with the original side Rules of the High Court
In the view we have taken that section 66 is not applicable to sale by Receiver it is not necessary to go into the question whether a sale by the Receiver under the Rules of the Calcutta High Court would come within the purview of section 66
Section 66 refers to execution of sales only and has no application to a sale held by a Receiver
In this view the objection raised by the learned counsel for the defendant has to be rejected
354 ORDER When the Judgment was delivered in Court on 16th January 1979 allowing the appeal to the extent that there will be a decree for partition and separate possession of one fourth share each of plaintiffs 2 and 3 the parties expressed their desire to agree amongst themselves and divide the properties finally and report a settlement to that effect and prayed that the Court may be pleased to pass a decree in terms of the compromise
Leave was granted to the parties to enter into a compromise and report the matter to the Court for the passing of the decree in terms of the compromise
Accordingly the parties have entered into a compromise and have filed the compromise memo along with plans for passing of the final decree
Accordingly we direct that a decree be passed in terms of the compromise
SR Appeal allowed


Summary:
The plaintiffs appellants filed a suit against the defendants respondents claiming their title on an unregistered document to the suit property and premises purchased by the latter through a sale by the Receiver under the orders of the Court on the ground that they were co owners thereof by virtue of the said document
The trial court decreed the suit but the High Court on appeal accepted the appeal and dismissed the suit
Allowing the appeal by certificate the Court  HELD 1
A pure question of law on the facts and circumstances of a case can be taken for the first time in the Supreme Court
351 B C a In the instant case the plea that as the title has vested in the respondent by virtue of the confirmation of sale and the registered conveyance the plaintiffs appellants cannot rely on an unregistered document is a pure question of law not involving any investigation of the facts
351C E Yaswant Deorao Deshmukh vs
Walchand Ramchand Kothari   861 Raja Sri Sailendra Narayan Bhanja Rao vs State of orissa   Seth Badri Prasad and ors v Seth Nagarmal and ors
 1959 Suppl
1 SCR 769  773 State of UP and Anr v Anand Swarup   T A A Appanda Mudaliar vs State of Madras   applied
In a suit against the purchaser on the ground that the purchase was made on behalf of plaintiff or on behalf of some one through whom the plaintiff claims the plaintiff cannot succeed in displacing the title of the defendant on the basis of the unregistered agreement352 C on the pleadings in the instant case the question of law raised cannot result in the suit being dismissed as not maintainable
The claim of the appellant as a real owner was not based on the unregistered agreement alone
341 The suit was based on the plea that the suit property and the premises were purchased in ownership ie on the claim that the appellants plaintiffs were the real owners of the property352 C D G H C Ariff vs Jadunath Mazumdar Bahadur AIR  Meritime Electric Co Ltd vs Genral Dairies Ltd AIR 1937 PC 114 referred to
Section 66 of the Civil Procedure Code prohibits any person claiming that a purchase certified by the Court in such manner as may be prescribed in favour of a person was made on behalf of the plaintiff
In order to invoke the prohibition it is necessary to establish that the person against whom the suit cannot be maintained is a person claiming title under a purchase certified by the Court in such manner as may be prescribed
A certificate by the Court for the purchase in the manner prescribed is therefor essential
353 B C The word prescribed is defined under section 216 of the Civil Procedure Code as meaning prescribed by Rules
The provision as to grant of a certificate by a court under a purchase is prescribed in Order 21
Order 21 Rules 64 to 73 prescribe the procedure relating to sale generally while Rules 82 to 103 prescribe the procedure relating to sale of immovable property
When the Court makes an order confirming the sale under Order 21 Rule 92 the sale becomes absolute
After the sale becomes absolute under Rule 94 the Court shall grant a certificate specifying the properties sold and the name of the person who at the time of the sale is declared to be the purchaser
Such certificate is required to bear the day and the date on which the sale became absolute
353 C E The certificate by the Court referred to in Section 66 CPC is a certificate under Order 21 Rule 94
The procedure envisaged for sale generally and sale of immovable property under Order 21 is sale by a public auction
Sale by a Court through the Receiver appointed by Court is not contemplated under these provisions
In a sale by a Receiver a certificate to the purchaser under Order 21 Rule 94 is not given by the Court
Therefore the prohibition under Sec 66 cannot be invoked in the case of a sale by the Receiver
A Receiver is appointed under Order 40 Rule 1 and a property can be sold by the Receiver on the directions of the Court even by private negotiations
The requirement of Sec 66 of the CPC is a certificate by the Court as prescribed
Since Section 66 is not applicable to sales by Receiver it is not necessary to go into the question whether a sale by the Receiver under the Rules of the Calcutta High Court would come within the purview of section 66
Section 66 refers to execution of sales only and has no application to a sale held by a Receiver
In this case the conveyance exhibit 5 was in accordance with the original side Rule of the High Court
353 E G