JUDGMENT
(1) The suit out of which this Second Appearl arises has been filed by plaintiffs for partition and possession of their three-fourth thereof from the defendants.
(2) The facts which are necessary to state for the purpose of this appeal are as follows :
The suit property is Survey No. 45/3, measuring 5 acres and 9 guntas, assessed at Rs. 6-8-0. This property originally belonged to one Venkatappa who had mortgaged the same with possession to one Lakshminaranappa. The mortgagee brought a suit, being O. S. No. 449 of 39-40 to recover the mortgage amount. The suit was decreed. It appears that thereafter this decree-holder Lakshminaranappa. Defendant No. 1 filed O. S. No. 225 of 1942-43 for partition and possession of his one-fourth share in the properties Lakshminaranappa and one of the properties in which defendant No. 1 claimed a share was the mortgage decree which was described as item No. 12.
Ultimately, the suit was compromised whereby plaintiffs 1 and 2 were held to be entitled to three-fourth share in the property of the deceased Lakshminaranappa. Thereafter, Defendant No. 1 sought to execute the mortgage decree. The application for execution of the decree was made under O. XXI R. 15 of the Code of Civil Procedure. In pursuance of this application the properties were brought to sale and defendant No. 1 purchased the suit property with the permission of the Court thereafter, he obtained possession of the suit property on 27-1-1950 and subsequently sold the same to Defendant No. 2 is at present in possession of the suit property.
(3) The defendants resisted the plaintiffs’ claim for partition and possession of various grounds. The first is, the plaintiffs 1 and 2 are not entitled to claim three fourth share in the suit property. They are at best entitled to claim three-fourth share in the decretal amount that could be realised. Secondly, the suit is barred under Section 66 of the Code of Civil Procedure. Defendant No. 2 being a bona fide purchaser for value without notice is protected under law. In any event, the suit is barred under O. 2, R. 2 of the Code of Civil Procedure.
(4) On these allegations, several issues were framed by the trial Court. The trial Court negatived the contention of the defendants and held in favour of the plaintiffs and decreed their suit. Against this decree, Defendant No. 2 preferred an appeal in the court of the Additional Subordinate Judge, Bangalore. The learned Additional Subordinate Judge confirmed the decree of the trial Court and dismissed the appeal. It is against this decree that this Second Appeal has been preferred by the second defendant.
(5) Mr. Y. Adinarayana Rao, the learned Counsel for the Appellant, has urged the same contentions as urged the same contentions as urged in the Courts below. He contends first that the present suit is barred under Section 66 of the Code of Civil Procedure; secondly, he (second defendant) being a bona fide purchaser for value without notice is entitled to a protection under law, and the plaintiffs are estopped from making any claim to the suit property; and thirdly the suit is also barred under O. 2, R. 2, C.P.C. But the real and the principal contention, which had been strenuously urged by the learned Counsel for the appellant is one under Section 66 of the Code of Civil procedure.
He contends that the allegation of the plaintiff as disclosed in the plaint is that plaintiffs 1 and 2 have filed the suit for partition on the ground that Defendant No. 1 purchased the suit property in execution of a decree for and on behalf of plaintiffs 1 and 2 also and since they have based their suit on this ground the suit must be held to be barred under Section 66 of the Code of Civil procedure. Section 66, sub-section (1) reads 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 plaintiffs, or on behalf of some one through whom the plaintiff claims.”
The learned Counsel for the appellant says that there is an absolute bar for the maintainability of a suit against a person who claims title under a purchase certified by the Court on the ground that the purchase was made on behalf of plaintiff. No doubt, the provision of Section 66 are mandatory and there is a bar for the maintainability of a suit of the nature contemplated by this section.
But there are other facts which are material and cannot be dissociated from the other allegations in the plaintiff in appreciating the contentions raised by the learned Counsel; and those facts are–Defendant No. 1 sought to execute the mortgage decree not only on his own behalf but also the benefit of them all. Sub-rule (2) of Rule 15 of Order XXI, Civil Procedure Code, reads as follows :
“Where the Court sees sufficient cause for allowing the decree to be executed on an application made under this rule, it shall make such order as it deems necessary for protecting the interest of the persons who have not joined in the application.”
Therefore, when such an application was made, it must be deemed that the Court must have passed an order as contemplated under sub-rule (2) of Rule 15 of Order XXI C.P.C. Though no such order had been produced in this case, yet it seems to me that the Court must be deemed to be alive to the provisions of law and it must have fulfilled the obligations laid upon it by the statute and this would be clear from the sale certificate which is issued in favour of Defendant No. 1 and which is marked Ex. III in this case. It is stated in the sale certificate as follows:
“The first L. R. Seeks to execute this decree for the benefit of all the L. Rs. of the deceased decree-holder. As the others have not joined this L. R. He is taking out execution for the benefit of all under Order XXI, rule 15.”
Therefore, when the property has been purchased by Defendant No. 1, under the circumstances stated above, it must be deemed that Defendant No. 1 did purchase the property not only for his benefit but also for the benefit of all the other decree-holders. That means, plaintiffs 2 and 2, along with defendant No. 1 have become the joint owners of the suit property purchased that requires considerations is, whether under such circumstances if a suit has been filed by plaintiffs for partition and possession of their share, then the bar contemplated under Section 66 C.P.C., would come into operation.
(6) The learned Counsel for the appellant has relied in support of his contention on the following cases. The first is reported in Bishun Dayal v. Kesho Praqsad, AIR 1940 PC 202. In that case plaintiff filed a suit for joint possession of one-half share in certain properties which were sold at auction and purchased in the name of Kesho Prasad, Defendant No. 1. Plaintiff is the son of a daughter of Ram Dayal, who was Kesho Prasad’s uncle. It is admitted by both the parties that Ram Dayal and Kesho Prasad were separate and did not form members of a joint Hindu family.
The plaintiff’s case, as put forward in the plaint, was that the property which was purchased on 20-7-1907 was purchased by kesho Prasad, Defendant No. 1 not only on his own behalf but also on behalf of Ram Dayal. The possession of property was obtained and the same property was jointly held by Ram Dayal and Defendant No. 1 as a family property. After the death of Ram Dayal, his widow Mt. Ram Piari Kuer, being in possession was receiving her share of the net profit from Kesho Prasad. The widow of Ram Dayal died somewhere in the year 1922. The plaintiff succeeded to the properly as reversionary heir.
During the lifetime of Ram Dayal and his widow, Defendant No. 1 has paid their share out of the net profits, but after the death of the widow, defendants stopped paying any part of the profits and denied the right of the plaintiff. Plaintiff therefore asked for a decree for joint possession of the suit property. This suit was on the footing that Ram Dayal had one-half share and the other half, belonged to Kesho Prasad either alone or jointly with his brother Kedar Nath. The defendant denied that Ram Dayal was the joint owner of the suit property and asserted that he and his brother were the sole owners.
He also denied possession either of Ram Dayal or of his widow. He denied that he ever paid any profits either to Ram Dayal or to his widow and contended that in any event the plaintiff’s claim was barred under Section 66 C.P.C. The learned Subordinate Judge dismissed the plaintiff’s suit deciding the main issues against the plaintiff. The matter was taken up in appeal to the High Court of Allahabad and the learned Judges of the Allahabad High Court confirmed the decree of the trial Court holding that the suit was barred under Section 66 C.P.C. It is against this decree that an appeal was taken up to the Privy Council.
Their Lordships of the Privy Council held on the facts as alleged in the plaint that the claim of the plaintiff must be held to have been barred under Section 66 Civil procedure Code. The facts of this case disclose that the plaintiff filed a suit for joint possession solely on the ground that the purchase was made not only on behalf of Defendant No. 1 Kesho Prasad on such an allegation clearly comes within the mischief of Section 66, sub-section (1) of Civil Procedure Code.
There the question of the purchase made in auction by one of the joint decree-holders did not come for consideration and there was no occasion for their Lordships of the Privy Council to express themselves as to whether Section 66, sub-section (1) would also operate as a bar to a suit of the present nature. The case into service to support the contention of the defendant.
(7) The next case on which reliance is placed by the learned Counsel for the appellant is reported in Mahomed Husain Khan v. Mustafa Husain Khan, AIR 1946 All 85. In that case, the plaintiff claimed one-ninth share in the property belonging to his deceased brother Sajjad Husain Khan, who died in the year 1934. One of the properties in which plaintiff claimed a share was the property purchased by Mt. Sughra Bibi, the wife of Sajjad Husain Khan in execution of a mortgage decree. Therefore, one of the questions that required consideration in that case was whether plaintiff, who claimed one-ninth share in the property of his deceased brother could claim a share in the property purchased by the wife of his deceased brother in her own name.
It was found in that case that the sale certificate was issued in the name of Mt. Sughra Bibi and she was in possession of the property. In such circumstances, plaintiff alleged that the property purchased by Mt. Sughra Bibi was purchased on behalf of his deceased brother, as the mortgage money belonged to his deceased brother. In view of the allegations made by the plaintiff in his plaint of the allegations made by the plaintiff in his plaint the Court held that the plaintiff’s claim in respect of the property purchased in auction by Mt. Sughra Bibi was barred under Section 66, Clause (1) of the Code of Civil procedure. It would thus be seen that the facts alleged by the plaintiff clearly fall within the mischief of Section 66(1) of the Code of Civil Procedure. Therefore, the decision in this case would not help the plaintiff in his case.
(8) The third case cited by the learned Counsel for the appellant in support of his contention is reported in Dolgovind Mahapatra v. Anathbandhu Naik, . In that case, plaintiffs and Defendant No. 1 were related, Defendant No. 1 being the maternal uncle of the Plaintiffs. Defendant No. 1 was managing the plaintiff’s property, and Defendant No. 1 purchased the suit property in execution of a decree for rent on 25-11-1932. The sale certificates stood in the name of Defendant No. 1.
Plaintiff alleged that the purchase money was paid from out of the funds belonging to the Plaintiff and that since the date of the purchase the plaintiff was all along in possession of the properties till 21-2-1944 when he was dispossessed by defendants 2 and 3. He alleged further that the property was purchased by Defendant No. 1 benami in the name of his material uncle and therefore he alleged that he is the real owner and claimed for declaration of his title to the suit property and for recovery of possession. The defendants among other things contended that the suit was barred under the provisions of Section 66 C.P.C., and their Lordships of the Orissa High Court upheld the contentions of the defendants. This is what they have stated at para 11 of the judgment :
“But there is a real difficulty in the way of the Plaintiff to get a decree in the present suit on account of his statements in the pleading itself. More than once in the plaint he has mentioned that this property was purchased by him benami in the name of Defendant No. 1, who was his agent on 25-11-1932. It is significant to note that there is no averment of any fraud nor even is there any averment that Defendant No. 1 purchased the property in his name without the consent of the plaintiff.
The lower appellate Court has rightly construed the plaint read as a whole to mean that Defendant No. 1 purchased these properties in his name with full knowledge of the plaintiff and the other. This being the position, the case cannot really come within the exception as provided for in Clause (2) of Section 66 of Civil Procedure Code, but is directly met by the mischief of Clause (1) unlike the other case.”
Thus, it is clear that this case also is distinguishable on facts and does not apply to the facts of the present case.
(9) So, it could be seen that all the three cases cited by the learned Counsel for the appellant are distinguishable on facts and they really do not touch the point involved in this case.
(10) The point under consideration is covered by a direct ruling of the Privy Council, in a case reported in Ganga Sahai, v. Kesri, AIR 1915 PC 81. The facts which are relevant and necessary to appreciate the decision in the case may be stated thus: There were 3 suits. We are not concerned with the third suit. The plaintiff’s in the two suits, claiming adversely to each other to be the heirs of one Bahadur Singh, the deceased, sought to recover from the appellant Ganga Sahai a one-third share of the properties specified in their respective plaints, which he had purchased at a sale held in execution of a decree upon a mortgage.
The mortgage was executed in the year 1869 by one Jai Chand Chaudri, in favour of Bahadur Singh and Debi Din, the ancestor of Ganga Sahai, whereby two villages were hypothecated. One third of the mortgage money was advanced by Bahadur Singh and the other two-thirds by Debi Din. A suit was brought on the mortgage in 1891 by Bahadur Singh in conjunction with Bhima Singh and Ganga Sahai, the heirs and representatives of Debi Din (who it appears died in the meantime). Bahadur Singh died during the pendency of the mortgage suit, and his widow, Lachman Kunwar, was brought on the record in his place. Ultimately, the suit was decreed and a final decree was also made. Lachman Kunwar died somewhere in 1894.
On 20-12-1897, Ganga Sahai applied for execution of the mortgage decree against the heir and representative of the mortgagor. In his application he expressly reserved the rights of Lachman Kuwar’s heirs. The mortgage properties were brought to sale and purchased by Ganga Sahai on 20-2-1899. Two sale certificates were issued in his name and that is how he was in possession of the properties. The two sets of plaintiffs claim to be the heirs of Bahadur Singh adversely to each other; but as against the appellant Ganga Sahai, they sought identical relief.
They alleged that the purchase by Ganga Sahai of the property in question was not exclusively for himself but for the benefit of the heirs and representatives of both mortgages. The defendant resisted plaintiff’s claim under Section 317 Civil Procedure Code, 1882, which corresponds now to Section 66 Civil procedure Code. This contention was negatived by both the Courts below. Their Lordships examined the provisions of Section 317 Civil procedure Code of 1882 and this is what their Lordships have observed :
“In their Lordships’ opinion the provisions of that section have no application to the facts of the 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 person otherwise beneficially interested in the purchase.”
Therefore, their Lordships came to the conclusion that :
“The Courts in India were perfectly right in refusing to allow Ganga Sahai to perpetrate a fraud against his co-decree-holders under cover of this section. His application for execution was under Section 231 of the Code, (which corresponds to Order, XXI, rule 15, C.P.C.) and it was made subject to their rights. Had he not even embodied this reservation in his petition, the Court executing the decree would have of its own motion protected the interest of the other decree-holders. Then Lordships agreed with the Courts in india that the heirs and representatives of Bahadur Singh are entitled to recover from Ganga Sahal a one-third of the properties purchased by him in execution of the joint mortgage decree.”
The decision in this case is a complete answer to the contentions of the appellant. The facts of the present appeal are somewhat similar to the facts of the case reported in AIR 1915 PC 81. I respectfully agree with the views expressed by their Lordships of the Privy Council and applying the principle enunciated therein to the facts of this case. I hold that the claim of the plaintiff’s for a declaration that they are entitled to three-fourth share in the suit property and the same should be petitioned and possession should be awarded to them is not barred under Section 66, sub-section (1) of the Code of Civil Procedure.
(11) The next contention raised by the learned Counsel for the appellant is that his client being a bona fide purchaser for value without notice is entitled to be protected under law. This contention was not urged in the Courts below. But, the learned Counsel contends that this Court should exercise its power under law. This contention was not urged in the Courts below. But, the learned Counsel contends that this Court should exercise its power under O. 41, R. 25, Civil procedure Code and call for a finding after raising the necessary issue. I do not think I should call for a finding after raising the necessary issue as contended by the learned Counsel.
Since this point was not urged to either of the Courts below, it must be held that he gave up this part of his case. But, the learned Counsel contends that he raised the defence in his written statement and it was the duty of the Courts below to raise the necessary issue and if the Courts fall to raise the necessary issue, then his client should not be debarred from pressing this point in this Court.
Though it is true that under O. XIV of the C.P.C. i is the duty of the Courts to raise the necessary issues which arise out of the pleadings of the parties, yet it is also the duty of the advocates appearing for the parties to assist the Court in raising the necessary issues, and if the defendant raised the contention that he being a bona fide purchaser for value without notice should be protected under law, then it was up to him to suggest that such an issue should be raised. In my view, since this, point was not urged in either of the Courts below, the only inference that can possibly be drawn is that he gave up his defence on this part of the case.
(12) The next contention urged by the learned Counsel for the appellant is that the present suit is barred under the provisions of O. 2, R. 2, C.P.C. This is how he seeks to urge this point: Defendant No. 1 filed a suit, being O. S. No. 225 of 42-43 for partition and possession of his one-fourth share in the properties of Lakshminaranappa and contends that in this suit the item purchased under the mortgage decree would have been included and since the property has not been included the present suit is barred under R. 2 of O. 2, Civil Procedure Code.
He contends that by not including this property in that suit, his client is prejudiced; he says if it was included he could have legitimately asked in that partition suit that this property should be allotted to the share of his vendor Defendant No. 1 and in that event, his client’s interest would have been safeguard. There is no force in this contention, because the property in suit was purchased in the year 1948 and possession was obtained in 1950. It is obvious, therefore, that this property could not be included in the suit of 1943-44. Thus, there is no substance in this contention.
(13) As a result of the conclusions to which I have arrived, I confirm the decree passed by the Courts below and dismiss this appeal with costs..
GD/K.S.B.
(14) Appeal dismissed.
