Bombay High Court
Kondi Savla Bachal vs Banachand Cheniram Marwari on 24 February, 1925
Equivalent citations: (1925)27BOMLR667, AIR 1925 BOMBAY 422
JUDGMENT Norman Macleod, Kt., C.J.
1. The plaintiff' sued to recover possession of the plaint property with mesne profits, alleging that on May 23, 1918, he purchased it tit a Court auction for Rs. 530 in darkhast No. 654 of 1917 in execution of the decree obtained by him in suit No. 887 of 1913.
2. That suit was filed on a mortgage given by one Krishna Appa, against his widow Vithabai and one Patlu Babaji.
3. The plaintiff obtained a sale certificate dated August 15,1918. The defendant claimed that he had obtained a decree in suit No. 649 of 1911 against Vithabai and in execution of the decree the property was sold at auction on February 1, 1913, and was, purchased by Patlu bin Babaji benaini for the defendant; that since then he had been in possession; that the plaintiff collusively obtained the decree against Patlu in 1913; and that he was not bound by it. The trial Court held that the defendant had not proved that Patlu Babaji was his benamidar, that the plaintiff had proved his title to the property in suit, and therefore passed a decree for possession in favour of the plaintiff.
4. In appeal it was held that Patlu was defendant's benamidar The next point argued was that the plaintiff, who knew this avoided bringing defendant on the record in the previous suit, and did so to evade the suit being defended, and that the proceedings should on that account be reopened. The Judge said " I do not think any material is shown to make it necessary that the whole suit proceedings, which no doubt were ex parte, should he reopened." He then held that the decree in suit No. 887 of 1913 did not bind the defendant, so that the decree and the sale proceedings in darkhast No. 654 of 1917 had not the effect of extinguishing defendant's equity of redemption. He passed, therefore, a redemption decree directing the defendant to pay to the plaintiff within six months of the date of the decree the amount due on the decree in suit 887 of 1913, with interest at six per cent.
5. The plaintiff has appealed, and the question now is whether the defendant is bound by the decree against Patlu in suit No. 887 of 1913. The appellant relies upon the decision of the Privy Council in Our Narayan v. Sheolal Singh (1918) I.L.R. 46 Cal. 566. Their lordships said at page 574 :-
So long, therefore, as a benami transaction does not contravene the provisions of the law the Courts are hound to give it effect. As already observed, the benamidar has no beneficial interest in the property or business that stand in his name; he represents, in fact, the real owner, and so far as their relative legal position is concerned he is a mere trustee for him. Their Lordships find it difficult to understand why, in such circumstances, an notion cannot be maintained in the name of the benamidar in respect of the property although the beneficial owner is no party to it. The bulk of judicial opinion in India is in favour of the proposition that in a proceeding by or against the benamidar, the person beneficially entitled is fully affected by the rules of res judicata. With this view their Lordships concur. It is open to the latter to apply to be joined in the action; but whether he is made a party or not, a proceeding by or against his representative in its ultimate result is fully binding on him.
6. Applying the decision in that case to the facts of this cage, . the defendant on whose behalf Patlu purchased the property at a Court sale in execution of the decree in suit No. 651 , of 1911 was bound by the decree passed in favour of the plaintiff in his suit brought against Patlu. He cannot, therefore, resist the plaintiff who is demanding possession as the auction-purchaser. Nor can he claim to be entitled to redeem the property since the plaintiff's decree and the sale of the property in execution extinguished that right. We allow the appeal and restore the decree of the trial Court with costs throughout.