Letters Patent Appeal No.601 OF 2000 --------- LAKHAN PRASAD & ORS. ---------------------------(Appellant) --Versus-- ANAR DEVI & ORS. -----------------------(Respondents) For the Appellant : Mr. R.K.P. Singh. Mr. Manish Kishore, For the Respondents : Mr. Mahendra Kant Choudhary, Mr. Ratan Kumar & Mr. Birendra Kant Choudhary. -------- P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH AND THE HON'BLE MR. JUSTICE JAYANANDAN SINGH J U D G M E N T Barin Ghosh & J.N. Singh, JJ.. Section 7 of the Benami Transactions (Prohibition) Act, 1988, repealed, amongst others, Section 66 of the Code of Civil Procedure, 1908. Section 7 of the Benami Transactions (Prohibition) Act, 1988 came into force on 19th May, 1988. Section 66 of the Code of Civil Procedure, 1908, as it was, is as follows :- “66. Suit against purchaser not maintainable on ground of purchase being on behalf of plaintiff.- (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 and 2 in any suit by a person claiming title under a purchase so certified, the defendant shall not be allowed to plead that the purchase was made on his behalf or on behalf of some one through whom the defendant claims. (2) Nothing in this section shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate fraudulently or without the consent of the real purchaser, or interfere with the right of a third person to proceed against that property, though ostensibly sold to the certified purchaser on the ground that it is liable to satisfy a claim of such third person against the real owner.” Prior to coming into force of the Benami Transactions (Prohibition) Act, 1988, Benami Transections were perfectly valid and legal transactions. A suit seeking declaration that a property has been purchased by the real owner in the name of the defendant, who is the ostensible owner, therefore, was a validly instituted suit. Section 66 of the Code of Civil Procedure, however, sought to interfere with the jurisdiction of the Civil Court in relation to a similar suit, where the title claimed to be Benami stands on the strength of a purchase certificate. The aim and object of the Section 66 of the Code of Civil Procedure was, therefore, to 3 curb the jurisdiction of the Civil Court and accordingly, required strict construction. That appears to be the view of the Hon‟ble Supreme Court rendered in the case of Girijanandini Devi and Others Vrs. Bijendra Narain Choudhary, reported in A.I.R. 1967 S.C. 1124. We would set out the following observations of the Hon‟ble Supreme Court rendered in the said Judgment :- 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. Where a person alleges that a property purchased at a Court auction was purchased on his behalf or on behalf of some one through whom he claims, the suit is clearly barred. Appellant filed Partition Suit No. 87 of 1972. In paragraphs- 8, 9, 12, 13 and 14 of the plaint, the plaintiff had pleaded as follows:- 4 8) That now it transpires that the said Sohan Mahton got the said auction sold lands purchased in the farizi name of one Keshwar Mahton, brother of Ragho Mahton, son-in-law of the said Sohan Mahton. 9) That the said auction purchase was nothing more than satisfaction of the decree holder‟s dues and the alleged purchase money was deposited in fact out of the joint family funds and the joint family of the plaintiff and the said Sohan Mahton all along remained in cultivating possession of the said land and the said Keshwar Mahton never came in possession thereof. It would not be out of way to submit that village Siripur where the said Keshwar Mahton reside is at a distance of 16 miles from Kajoor. 12) That the plaintiff has been able to ascertain which he believes to be true that the said Ramavtar Mahton approached the said Keshwar Mahton, before his death, that he should execute a deed in his favour in order to avoid any future trouble. 13) That at the same time defendant no.1 represented to the plaintiff that he had taken legal advice in the matter to have a sale deed executed by the said farzidar to which the plaintiff agreed and as such a sale deed was got executed by the said Keshwar Mahton in the year 1965. 14) That although the said document was cast in the form of a sale deed but in fact no consideration amount was paid therefore. The alleged deed is nothing but only confirmation of the right title and interest and possession of the plaintiff and defendants over the said auction purchased 5 lands. The defendants had filed one joint written statement in the suit. In paragraphs 12 and 15 of the written statement, the defendants dealt with the averments made in paragraphs 8, 9, 12, 13 and 14 of the plaint. The averments made in paragraphs 12 and 15 of the written statement are as follows:- 12) That the allegations made in para 8 and 9 of the plaint are denied. It is submitted that it is extremely false to say that Sohan Mahton got the aforesaid auction sold lands purchased in the Farzi name of Keshwar Mahton. Rather Keshwar Mahton purchased the aforesaid auction sold lands from his own money as his exclusive property. It is also submitted that at this relevant period Chulhan Mahton was the karta as submitted above. It is false to say that it was purchased out of joint family fund of plaintiff and defendants. It is also false to say that Sohan Mahton all along remained in cultivating possession even after delivery of possession to Keshwar Mahton of the purchased lands. It is submitted that after delivery of possession, Keshwar Mahton all along himself cultivated the auction purchased lands. The village Siripur is at a distance of 7 miles only from Sheolal bigha. 15) That the allegations made in para 12 to 14 are false and imaginary. It is submitted that Keshwar Mahton alias Nand Keshwar was in urgent need of money to purchase some land in his 6 village and to meet his house-hold affairs so he approached the defendant no.1 to 3 and said about the urgency upon which the defendants 1 to 3 became ready to purchase the lands of Schedule A and paid money Rs. 1500/-. Thereafter Keshwar Mahton executed sale deed dated 11.5.1965 of Schedule A lands in favour of defendants 1 to 3 and Keshwar Mahton put these defendants no.1 to 3 in possession. It is further stated that prior to sale deed dated 11.5.1965 rent receipts used to be granted to Keshwar Mahton and after sale deed dated 11.5.1965 rent receipts are being issued in the names of defendants. Defendant no.1 never represented to the plaintiff regarding legal advice to get a sale deed executed by the alleged Farzidar or the plaintiff agreed to it. In view of such pleadings, one of the issues required an answer by the Trial Court was “whether the land, thus, sold by auction was part of the joint family properties”. The Trial Court answered the issue against the plaintiff and at the same time, in relation to the remaining land held that the parties had an earlier amicable partition amongst them. On the basis thereof, the Trial Court dismissed the suit. On an appeal preferred by the appellant, a learned Single Judge of this Court by the Judgment and Order impugned in the present appeal accepted, on the concession given by the defendants, that there was no earlier partition 7 between the parties and accordingly, partly allowed the appeal and directed partition of all those lands, being the subject matter of the suit, except the auction sold land. The learned Judge felt that Section 66 of the Code of Civil Procedure came in the way of the plaintiff claiming title in the land purchased by the auction purchaser said to have been derived by the plaintiff through the joint family and accordingly, dismissed the suit in so far as that part of the land, which had been sold by auction. The learned counsel appearing in support of the appeal submitted that the word “benami” was never used by the plaintiff in his pleadings, nor it is the contention of any body that in the oral or documentary evidence any case of benami had been advanced by the plaintiff. It was submitted that the case of the plaintiff was simplicitor “farzi”, i.e. a sam transaction. It was contended on the principles enunciated by the Hon‟ble Supreme Court in the case mentioned above that since the plaintiff was not seeking title in the property auctioned either by himself or through any one else, strictly speaking Section 66 of the Code of Civil Procedure had no application. 8 It is true that the word “benami” had not been used by the plaintiff in the pleadings of the suit, but he had used the word “farzi”. Assuming the word “farzi” denoted a sam transaction, but a reading of paragraphs-8, 9, 12, 13 and 14 of the plaint would amply demonstrate that the plaintiff was seeking to contend that the auction purchase was made in the name of a third person for the purpose of satisfying the decree of the decree holder and the funds required, therefore, was made available out of the joint family funds and even after purchase by the third person the joint family remained in possession of the land shown to have been sold and the purchaser did never come in possession thereof. In addition to that, it was urged in the plaint that before the death of the purchaser, on legal advice, by a document, though ostensibly a sale deed, the property was conveyed in favour of a co- parcener of the joint family in order to keep the matter within the legal frame work. It was further contended that no consideration passed for such conveyance. As against that, the defendants contended that the sale was a genuine auction sale. The auction purchaser was in possession all through out. He paid rent in respect of the land so purchased to the State 9 during the time he was the owner thereof and thereupon for valuable consideration he transferred the property to a person, who happens to be coincidently a member of the joint family. The learned Judge, who has dealt with the first appeal of the appellant, disbelieved the story of the appellant as regards possession of the joint family of the auction sold land. The learned Judge accepted that the land in question remained in actual physical possession of the purchaser all through out until he conveyed the property to one of the members of the joint family. The learned Judge could not find any piece of evidence pertaining to the motive for having the property purchased in the name of a third person. The appellant has no quarrel with such findings recorded by the learned Judge in the Judgment under appeal. In this back ground, the one and the only question to be answered by us is whether on the pleadings of the parties and in particular of the plaintiff Section 66 had any role to play or not. It is true that Section 66 must be construed strictly and accordingly, until such time one seeks to contend in a civil suit that the certificate purchaser made the purchase on behalf of someone through whom the plaintiff claims, 10 Section 66 of the Code has no application at all. In the instant case, from the pleadings of the plaintiff it is clear that it had all through out been the case of the plaintiff that the purchase by the certificate purchaser was on behalf of the joint family, by the joint family and with the funds of the joint family. It is that juristic person, i.e. the joint family, who had been projected as the real purchaser in the plaint through whom the plaintiff sought to claim. That being the situation, we are afraid, we cannot accept the contention of the appellant that Section 66 of the Code had no application in the instant case and accordingly, we are constraint to uphold the reasons furnished by the learned Single Judge while dismissing the appeal in so far as that part of the property, which had been auction sold. It was urged that in any event the auction sold property became a part of the joint family property at the time of institution of the suit and as such the claim of the plaintiff on that property could not be rejected on the basis of Section 66 of the Code. There was no pleading that the consideration for conveyance of the property by the auction purchaser was paid out of the joint family funds. Instead it was pleaded that 11 no consideration was paid. In such situation the plaintiff was required to plead and prove that the purchase by the auction purchaser was funded by joint family, which he could not do in view of Section 66 of the Code. The appeal, accordingly, fails and the same is dismissed. Patna High Court, 24th June, 2008 S.B.P. (Barin Ghosh, J.) (J.N. Singh, J.)