JUDGMENT
Sadasiva Aiyar, J.
1. The 1st defendant is the appellant. The facts found are that he was the paid agent of the plaintiff Ramaswami Chetti in the year 1911, that the plaintiff obtained a decree against the judgment-debtor to whom the plaint house belonged, and that in execution of that decree the plaint house was sold and purchased by the 1st defendant with his master’s money in his hands and for the benefit of his master (the plaintiff) though without the knowledge of his master. The sale certificate was issued to the 1st defendant and he got delivery for his master in 1912. The plaintiff afterwards dismissed the 1st defendant from his service. Till such dismissal the 1st defendant’s intention was to hold possession of the house for his master and the master adopted and ratified the purchase. On his dismissal he refused to vacate for the first time and then this suit was brought to eject him. The legal defence set up by the 1st defendant (appellant before us) is that Section 66 (1) of the Code of Civil Procedure is a bar to the suit. That section no doubt is very widely worded. It says: “.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.” If the section has to be construed in-an absolutely literal way, I think there is very great force in the contention of the appellant, because on such construction, the plaintiff cannot succeed in this suit except on the ground that the purchase by the 1st defendant was made by him on behalf of the plaintiff as plaintiff’s agent.
2. The question, however, seems to be concluded by authority. In Bodh Singh Doodhoona v. Guneschunder Sen 19 W.R. 356 : 12 B.L.R. 317 : Sar. P.C.J. 253 (P.C.) their Lordships of the Privy Council had to consider the meaning of the corresponding Section 260 of Act VIII of 1859, which provided that any suit brought against the certified purchaser on the ground that the purchase was made on behalf of another person not the certified purchaser, though by agreement the name of the certified purchaser was used shall be dismissed with costs.” It must be admitted that the section of Act III of 1859 just now quoted contains the words though by agreement the name of the certified purchaser was used,” which do not appear in Section 317 of the Code of Civil Procedure of 1882 or in Section 66 of the present Code. In constructing the provisions of Section 260 of Act VIII of 1859, their Lordships say:
They were designed to check the practice of making what are known as benami purchases at execution sales, i.e., transactions in which A secretly purchases on his own account in the name of B. Their Lordships think that they cannot be taken to affect the rights of members of a joint Hindu family, who by the operation of law, and not by virtue of any private agreement or understanding, are entitled to treat as part of their common property an acquisition, howsoever, made, by a member of the family in his sole name, if made by the use of the family funds.” Then we have a recent decision of the Privy Council reported as Ganga Sahai v. Kesri 30 Ind. Cas. 265 : 37 A. 545 : 13 A.L.J. 999 : 29 M.L.J. 329 : 18 M.L.T. 203 : 9 C.W.N. 1175 : 22 C.L.J. 508 : (1915) M.W.N. 713 : 2 L.W. 837 : 17 Bom.L.R. 998 : 42 I.A. 177 (P.C.) That was decided in a suit brought when Section 317 of Act of 1882 was in force, and in that case also their Lordships state at page 554: Page of 87 A.–Ed. “In their Lordships’ opinion the provisions of that section (Section 317) have no application to the present case. They were designed to create some check on the practice of making what are called benami purchases at execution sales for the benefit of judgment-debtors, and in no way affect the title of persons otherwise beneficially interested in the purchase.” It is obvious, therefore, that their Lordships did not consider the omission of some words found in Section 260 of Act VIII of 1859 (and which I have already referred to) from Section 317 of the Act of 1882 as material in the construction of the latter section. Their Lordships expressly refer with approval to the case in Bodh Singh Doodhooria v. Guneschunder Sen 19 W.R. 356 : 12 B.L.R. 317 : Sar. P.C.J. 253 (P.C.), decided by the Board in 1873, that case being also reported in 12 Bengal Law Reports 317, The same view of the provisions of Section 317 has been taken by this Court in Sankunni Nayar v. Narayanan Nambudri 17 M. 282 : 4 M.L.J. 64 : 6 Ind. Dec. (N.S.) 195 and Kumbalinga Filial v. Ariapuira Padiachi 18 M. 436 : 5 M.L.J. 200 : 6 Ind. Dec. (N.S.) 653. The result of the decisions seems to be that if the plaintiff does not seek relief merely on the ground that the certified purchaser was a name-lender, but relies upon a certain state of facts as establishing certain other kinds of legal relations between himself and the certified purchaser which entitle him to rely on those relations as involving and creating effectual legal claims in favour of the plaintiff over the property purchased, he could rely on such facts and circumstances in support of his legal claims. I think especially that the facts of the case in Kumbalinga Pillai v. Ariaputra Padiachi 18 M. 436 : 5 M.L.J. 200 : 6 Ind. Dec. (N.S.) 653 are in principle on all fours with this case, and following that decision, I would dismiss the second appeal with costs.
Napier, J.
3. I agree that the point is settled by authority which binds us.
