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Madras High Court
Tirumalayappa Pillai And Ors. vs Swami Naikar on 13 November, 1894
Equivalent citations: (1895) ILR 18 Mad 469
Author: M Ayyar
Bench: M Ayyar, Shephard


Muttusami Ayyar, J.

1. In these connected appeals, appellants are the ostensible purchasers at revenue sales or their nominal vendees, and respondents are tenants in possession of the lands put up to sale. The lands in question are Karisal punja in the village of Theevasilapuram, which is one of the ten villages forming the endowment of a chattram founded at Seenalparai by an ancestor of the Dalavoy Mudaliars. They are separately assessed and registered in the Collector’s accounts in the names of the managers or hakdars of the chattram, who are descendants of its founder. The plaintiffs’ case was that, as purchasers at revenue sales or as persons claiming under them, they were entitled to eject the tenants in possession. On the other hand, the tenants contended, inter alia, that the plaintiffs purchased benami for the hakdars; that as mere benamidars, they were not entitled to maintain the suits in their own names; that the tenants had a right of permanent occupancy and that the revenue sales were the result of a fraudulent conspiracy between the hakdars and the purchasers designed to procure the eviction of the tenants. The District Munsif upheld the tenants’ contention and dismissed the suits with costs On appeal, the Subordinate Judge confirmed his decision, but rested it on the sole ground that the plaintiffs were mere benamidars and that as such, they could not maintain the suits. To this decision five objections are taken. The first of them is that there is no evidence on record to show that the purchases were made benami. I attach no weight to it, as there is ample evidence on the point, and as the Subordinate Judge discusses it at some length in his judgment. Another objection is that the onus of proof was erroneously thrown on the plaintiffs. This is also not tenable as the Subordinate Judge distinctly states in paragraph 8 of his judgment that the onus of proof is on the defendants.

2. The next objection is that, assuming that the purchases were made benami, still it is competent to plaintiffs to sue in their own names, but, as observed by the Subordinate Judge, a benamidar could not maintain the suit, there being no intention that the property–the subject-matter of the suit–should vest in him. It must also be noted that these suits were instituted on their own account. Nor is there any foundation for the contention that Exhibit XXIV has been misconstrued. The substantial question is, whether respondents are entitled to plead that the purchase, at a revenue sale, is made benami. It is provided by Act III of 1884 that a certificate issued to the purchaser under the Revenue Recovery Act shall be conclusive evidence of the fact of the purchase in all Courts and tribunals. But a greater effect cannot be given to this provision than is given to a similar provision in the case of benami purchases at execution sales. With reference to them it has been held that though the true owner cannot maintain a suit against a certified purchaser under Sections 316 and 317 of the Code of Civil Procedure, yet third parties are not thereby precluded from urging their claims against the true owner in respect of the property purchased as benami. The Subordinate Judge is therefore right in holding that the benamidars and their nominal vendees are not entitled to maintain these suits which are in the nature of ejectments on their own account.

3. These second appeals fail and I would dismiss them with costs.

Shephard, J.

4. I concur.

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