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1929 Supreme(SC) 57
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BLANESBURGH, LORD DARLING, LORD TOMLIN, SIR JOHN WALLIS, AND SIR GEORGE LOWNDES.
ABDUL JALIL KHAN - Appellant
Versus
OBAID ULLAH KHAN (DEFENDANTS) - Respondents
On Appeal from the High Court of Allahabad.
Decided On : June 17, 1929.
Solicitor for appellants :H. S. L. Polak. Solicitors for respondents: T. L. Wilson & Co.
A suit for possession based on title acquired through twelve years of adverse possession is not barred by Section 66 of the Code of Civil Procedure, even if the property was originally a court-certified purchase made benami for the plaintiff.
Headnote:(A) Code of Civil Procedure, 1908 - Section 66 - Code of Civil Procedure, 1882 - Section 317 - Indian Limitation Act - Section 28 and Schedule I, Article 144 - Suit against transferee of a certified purchaser - Benami transaction - Adverse possession - Bar of suit - Where the real purchasers have been in adverse possession for more than twelve years before dispossession, they are entitled to sue for possession on the title so acquired under the Limitation Act - Such a suit is not barred by the provision prohibiting suits on the ground that the purchase was made on behalf of the plaintiff, as a suit based on dispossession after twelve years of adverse possession is a distinct cause of action. (Paras 24-27)
(B) Mahomedan Law - Wakf - Validity of dedication - Where a gift to a wakf is duly perfected according to the rules of Mahomedan law, the claim of heirs to such properties is rightly disallowed. (Para 28)
Facts of the case:
Properties purchased at court auctions in execution of decrees were transferred by the certified purchasers to a third party. The plaintiffs claimed that the purchases and subsequent transfers were benami transactions and that they had remained in physical possession of the properties from the date of the auctions until 1915. A deed of wakf had also been executed by one of the original benami purchasers in 1909. The plaintiffs sought a declaration of ownership and possession. The lower courts held that the suit regarding the auction properties was barred by the Code of Civil Procedure.
Findings of Court:
The court found that the plaintiffs and their predecessors had been in physical possession of the properties for more than twelve years before being dispossessed. It further found that the dedication of certain properties to a wakf had been duly perfected according to the rules of Mahomedan law.
Issues: Whether a suit for recovery of possession, based on title acquired through twelve years of adverse possession, is barred by the provision of the Code of Civil Procedure that prohibits suits against persons claiming title under a certified purchaser on the ground that the purchase was made on behalf of the plaintiff.
Ratio Decidendi: The statutory bar against suits on the ground that a court-certified purchase was made on behalf of the plaintiff does not apply when the plaintiff seeks recovery based on a title acquired by adverse possession under the Limitation Act. A suit based on dispossession after twelve years of adverse possession is not a suit "on the ground that the purchase was made on behalf of the plaintiff" within the meaning of the section, and does not become so merely because the plaintiff sets up a benami transaction as an alternative cause of action.
Result: Appeal allowed and the decrees of the lower courts varied.
Legal Category Hierarchy
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practice and procedure
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civil procedure
- certified purchasers
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civil procedure
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property law
- benami transactions
- adverse possession
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family law
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mahomedan law
- wakf
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mahomedan law
Judgement
Appeal (No. 82 of 1924) from a decree of the High Court (January 15, 1920), which affirmed, so far as is material to the subject-matter of this report, a decree of the Additional Subordinate Judge of Aligarh.
The suit related to immovable properties which, having been sold in execution of decrees, were transferred in 1900 by the certified purchasers to the first respondent Obaid Ullah. Both Courts in India found that Abdul Shakur and Abdul Latif, whose heirs were the appellants, were the true purchasers, and that they and the appellants after them had been in physical possession from shortly after the sales until 1915. In 1909 Abdul Ghafur had executed a deed of wakfnama of all his property, including his share of properties bought at the sales.
The suit was brought by the appellants on August 5, 1916. They prayed by their plaint for a declaration that they were owners in possession of the properties ; alternatively, if it were found that the first respondent was in possession, for an order for possession ; they alleged that they were the true purchasers, also that any right or title which the first respondent had was extinguished by adverse possession. They also alleged that the wakfnama, of which Obaid Ullah had been appointed mutawalli, was inoperative.
The material facts appear from the judgment of the Judicial Committee.
The Subordinate Judge held that so far as the suit related to properties transferred by the certified purchasers it was barred by s. 66 of the Code of Civil Procedure, but that the wakfnama had never been brought into operation, and that the plaintiffs were entitled to recover the properties included in it, except those purchased at the auction sale. He decreed accordingly.
On an appeal and cross-objection the High Court dismissed the suit altogether. The learned judges (Mears C.J. and Knox J.) affirmed the view that so far as the suit related to properties transferred by the certified purchaser it was barred by s. 66 of the Code of 1908 ; they rejected a contention that s. 317 of the Code of 1882 and not s. 66 of 1908 applied. With regard to the wakfnama they held that the intention having been to create a genuine dedication, the subsequent conduct of Obaid Ullah did not invalidate it. The judgment is reported at I. L. R. 43 A. 416.
1929. April 16, 18. Dunne K.C. and Wallach for the appellants. The sale and transfer were both before 1909, consequently the Code of Civil Procedure, 1908, s. 66, did not apply, as it is not retrospective in effect Promatha Nath Pal Chowdhuri v. Mohini Pal Chowdhuri . (( 1920) I. L. R. 47 C. 1108.) Sect. 317 of the Act of 1882, which was in operation, did not in terms apply to a suit against a transferee from a certified purchaser. The High Court at Allahabad in Sibta Kunwar v. Bhagoli Joardar (( 1899) I. L. R. 21 A. 196.) rightly held that s. 317 did not so apply by implication ; the High Courts at Calcutta and Madras also have so held, though in Bombay it was held to the contrary. Sect. 66 should not be given a retrospective effect, which takes away a right of action existing when it was passed; that is so even if the section deals with a matter of proce dure Colonial Sugar Refining Co. v. Irving . ([ 1905] A. C. 369.) Further, the plaintiffs pleaded alternatively that they had a title by adverse possession, and it was concurrently found that they were in possession from the date of the sale until 1915. They therefore had a title under the Indian Limitation Act, s. 28, and Sch. I., art. 144, and an alternative cause of action to which s. 66 of the Code did not apply.
De Gruyther K.C. and E. B. Raikes for the first respondent. There is no ground for holding that s. 63 of the Code of 1908 does not apply to every suit brought after that code came into force by a person claiming to have purchased benami. Even if the Code of 1882 applied, the High Court at Bombay rightly held in Hari Govind v. Ramchandra (( 1906) I. L. R. 31 B. 61.) that s. 317 applied to a suit aga
