Patna High Court
Bikram Ahir And Ors. vs Lala Rajpati Lal And Ors. on 18 May, 1920
Equivalent citations: 62IND. CAS.720
JUDGMENT Das, J.
1. The plaintiffs allege that by ft contract between them and defendant No. 1 it was agreed that defendant No. 1, who at a sale held in execution of a mortgage-decree purchased the property in his own name, should convey a certain share of that property to the plaintiffs. The plaintiffs complain that the defendant has not owned out his part of the agreement and they ask that the defendant should be compelled to execute a sale deed in their favour in terms of the contract between them. The lower Appelate Court has dismissed the plaintiffs' action on the ground that Section 63 of the Code of Civil Procedure is a complete bar thereto.
2. Section 66 of the Code runs as follows:--"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 come one through whom the plaintiff claims."
3. It will be noticed that the section bars the jurisdiction of the Court only when the plaintiff claims that the purchase was made on his behalf or on behalf of some one through whom the plaintiff claims; in other words, Section 66 bars an enquiry on the question whether the certified purchaser is a real or a nominal purchaser, and provides that the certified purchaser shall be conclusively deemed to be the real purchaser and shall not be ousted on the ground that his purchase was really made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims. The section was clearly intended to discourage benami purchases at Court sales.
4. In my view the plaint in the present suit is not of the kind contemplated in Section 66 of the Code. The learned Vakil on behalf of the respondents strenuously contends that the claim as made in the plaint is in fact a claim on the auction-purchase made by the defendant No. 1. He specifically relies upon his 7th paragraph of the plaint which rans as follows:
Lala Rajpati Lal defendant No. 1, who was now one of the purchasers of the mortgaged properly, proposed that he would purchase at auction-sale the entire 2 annas and 8 pies share in his own name, that all the previous purchasers would pay their respective quotas of the earnest and purchase-money proportionately to their shares and that after the auction purchase he would again transfer under deeds of absolute sale the said property to the purchasers to the extant of their respective shares.
5. It seems to me that the 7th paragraph of the plaint very clearly states the plaintiff's causa of action. He does not claim a title in the properties by virtue of the purchase made by defendant No. 1, but he claims it by virtue of the contrast made between him and defendant No. 1. There is a distinct allegation that the property should be purchased by defendant No. 1 in his own name and that subsequent to the purchase the defendant No. 1 should convey a certain share of the property to the plaintiff. This is entirely different from a case founded on the auction purchase of the defendant on the allegation that the auction-purchase, though nominally made by the defendant, was really made on behalf of the plaintiff. In this case what the plaintiff says to the defendant is as follows:--"I am not attacking your title based on your auction-purchase. I disclaim any interest in the property by virtue of the auction purchase made by you, but I rely upon a prior contract between me and you by virtue of which you agreed to transfer a portion of the property to me. I rely upon the contract, and not upon the auction purchase made by you." That seems to me to be the plaint which has been filed in this ease.
6. Is the equitable jurisdiction of the Court to decree specific performance of the agreement alleged by the plaintiff ousted by Section 66 of the Code? That is the question which I have to determine in this case. In the recent cases of Mahammed Emartulla Sircar v. Mahammed Didar Bux Sircar 54 Ind. Cas. 127 : 24 C.W.N. 51. Sir Asutosh Chaudhuri, dealing with this identical point, said as follows:--"The object of that section," namely, Section 66 of the Code of Civil Procedure, "no doubt is to discourage benami purchases at Court sales, but not to render such purchases illegal. Inasmuch as the provisions of that section bar the equitable jurisdiction of the Court, it has been repeatedly held that the section must be strictly construed and not extended beyond its express terms." The learned Judge then quoted with approval the observation of the Judges of the Allahabad High Court in the case of Bishan Dial v. Ghaziuddin 23 A. 175 : A.W.N. (1901) 44 to the effect that the section would not apply where the suit was based not on the ground that the purchase was benami, but upon some other independent ground.
7. It seems to me that we may apply the same principle in dealing with oases under Section 66 of the Code of Civil Procedure which the Courts of Equity in England apply in dealing with the 4th Section of the Statute of Frauds. That section provides that "no action shall be brought to charge any person upon any contract or sale of land, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other parson thereunto by him lawfully authorised." In other words, that section bars the jurisdiction of the Court to try any action brought to charge a person upon any contract for sale of land, unless the contract or the memorandum thereof was in writing signed by the person to be charged; but it has been consistently held that the 4th Section of the Statute of Frauds does not avoid parol agreements, bat only bars the legal remedies by which they might otherwise have been enforced. Adopting the same view wo may say that Section 66 of the Code does not avoid benami purchases or render them illegal, bat whan such par chases are made at Court sales it bars the legal remedies by which they might otherwise be enforced, Dealing with Section 4 of the Statute of Frauds the Courts in England have repeatedly laid down that it is not arbitrary or unreasonable to hold that when the Statute says that no action is to be brought to charge any person upon a contract concerning land, it has in view the simple case in which he is charged upon the contract only, and not that in which there are equities resulting from res gestae subsequent to and arising out of the contract. Adopting the same view we may say that it is not arbitrary or unreasonable to hold that when the Statute says that no suit shall be maintained against any person claiming title under the purchase certified by the Court 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 has in view the simple case in which the defendant is sued upon his auction purchase, and not that in which there are equities arising out of the contract. It is undoubtedly true that the equitable jurisdiction of the Court may be ousted by Statute; but it seems to me that it must be ousted by express words, and that, if in a particular ease, the Statute by its express terms does not extend to the case, we are bound to try the case on the ordinary legal and equitable principles, In my view, although you may not attack the title of the purchaser based on his auction-purchase, you may still say that there was a prior contract between the parties by virtue of which one of them became entitled to call upon the purchaser to execute a conveyance in bis favour. In such a case, if there is something inequitable in the contract between the parties, the Court dealing with the fasts would have complete jurisdiction to refuse specific performance of the contract; but I do not see any injustice at all in the Courts assuming jurisdiction to deal with the matter, having regard to the express contract between the parties. There is in my view nothing in Section 66 of the Code to take away the jurisdiction of the Civil Courts to deal with a cause of action based on a contract between the parties and on the equities arising out of that contract.
8. It was, however, urged by the learned Vakil on behalf of the respondents that in a case of this Court, Muneshwar Dutta v. Lala Kailas Pati 50 Ind. Cas. 546, the point has been conclusively determined in his favour. There are, no doubt, certain passages in that decision, to which I was a party, which support the argument of the learned Vakil, but the entire decision rested on our finding that the whole transaction, as disclosed by the plaintiff's plaint itself, was that the purchaser was to buy the land in suit nominally in his own name but in reality for the sole benefit of the plaintiff. On that view there was no option but to dismiss the plaintiff's action. But on a careful consideration of the plaint in this suit, I am unable to agree with the learned Vakil that the whole transaction, as disclosed by the plaint in this action, was that defendant No. 1 was to buy the land in suit nominally in his own name, but in reality and effect for the sole benefit of the plaintiff, In my view, the plaintiffs do not challenge the title of the defendant No. 1 based on his auction-purchase. What they do say is that there was a prior contract between them and defendant No. 1 by virtue of which defendant No. 1 is bound to execute a conveyance in their favour. The learned Vakil argues that it is merely a devise to evade the provisions of Section 66 of the Code. The same argument has been advanced in England as to the construction which the English Courts have put on the 4th Section of the Statute of Frauds, The whole point is this. Here is a Statute which is intended to oust the jurisdiction of the Court. It has been consistently held, certainly in the Calcutta High Court, that the section must be strictly construed and not extended beyond its express terms. By the express terms of the section this Court is incompetent to entertain the suit against a person claiming title under a purchase certified by the Court on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims. That section does not bar a suit by a plaintiff against a defendant, not on the ground that the purchase was made on behalf of the plaintiff, but on the ground that there was a prior contract by virtue of which the defendant is bound to convey the property to the plaintiff. I, therefore, hold that Section 66 is not a bar to the present action. As the appeal was disposed of by the learned Judge in the Court below on a preliminary point, I must allow this appeal, set aside the judgment and decree of the Court below and remand the case to that Court for decision on the merits. The appellants are entitled to their costs incurred in this Court. The costs incurred in the Court below will abide the result and will be disposed of by that Court.
9. As this remand is expressly made under Order XLI, Rule 23 of the Code of Civil Procedure, the appellants are entitled to a certificate authorising them to receive back from the Collector the full amount of fee paid on their memorandum of appeal.