KOLLANTAVIDA MANIKOTH ONAKKAN Vs. TIRUVALIL KALANDAN ALIYAMMA

JUDGEMENT

(1.) The plaintiff is the assignee of the rights of a purchaser in a Court-sale held in 1885, under a decree obtained in 1884 upon the hypothecation (Exhibit C, dated 23rd February 1882). The sixth defendant (respondent) purchased the right, title and interest of apparently one of the mortgagors (in Exhibit C) in execution of a Small Cause Court decree in 1883, but was not made a party to the suit on Exhibit C. The question is whether the plaintiff is entitled to show that the sixth defendant purchased benami for the mortgagors in C. Both the lower Courts have held that he is not so entitled. Under the purchase in the suit or Exhibit C, the plaintiff has acquired the rights not only of the mortgagors, whatever they were in 1885, but also the rights of the mortgagee under Exhibit C, as they stood on its date, viz., 23rd February 1882. It is contended for the respondent that under Section 317, Civil Procedure Code, as interpreted in Bama Kvnvp v. Sridevi, I.L.R. 16 Mad. 290 no person, under any circumstances, may prove that the certified auction purchaser was not the real purchaser; but this is opposed to the conclusions arrived at in Natesa v. Venkataramayyan, I.L.R. 6 Mad. 135 and Bamakrishnappa v. Adinarayana, I.L.R. 8 Mad. 511. In the former it was held that Section 317 does not bar the son of a Hindu father from proving in a suit for partition that the certified purchaser was acting benami for the father. In the latter it was held that a person who did not claim under the benami purchaser was not precluded by Section 317 from showing the real character of the purchase. There can be no doubt but that the mortgagee under Exhibit C, as a person not claiming under either of the parties to the benami purchase, was entitled in the suit instituted by him on the mortgage to show, if necessary, the true nature of the purchase.

(2.) Consequently, the present plaintiff, as occupying his place, is equally so entitled.

(3.) We must, therefore, ask the District Judge to find whether the purchase by the sixth defendant was benami for the mortgagors as alleged on behalf of plaintiff. If the finding on the above issue is hi favour of the sixth defendant, we will ask the District Judge to find further whether the sixth defendant acquired by his purchase the right of both the mortgagors (Nambiars) or only of one of them against whom the decree was passed.