Prohibition against benami purchases in execution sales.

The plaintiff is the appellant. His suit was for partition of two items of immovable properties in which his claim was for an 1/6th share. He obtained a money decree in O.S.No.160 of 1933 on the file of the District Munsiff’s Court, Periyakulam, against one Palanisami Chetti. The firm of which the 2nd and 3rd defendants were partners also obtained a money decree in another suit O.S.No.44 of 1933 on the file of the same Court against the said Palanisami Chetti. The suit properties were attached in execution of both the decrees by the respective decree-holders and proceedings for bringing the properties to sale were taken. The properties were put up for sale on 9th November, 1933 and 7th December, 1933, in execution of the decree in O.S.Nos.160 of 1933 and 44 of 1933 respectively. On the date of the first sale, that is, on 9th November, 1933, an agreement (Exhibit A-5) was entered into between the plaintiff’s agent representing the plaintiff and the agent of defendants 2 and 3 on their behalf. The substance of the agreement is whomsoever of the two decree-holders may take in auction the properties, the plaintiff would be entitled to an 1/6th share and defendants 2 and 3 to a 5/6th share, (the 1/6th and 5/6th shares being arrived at in proportion to the respective amounts of their decrees) and that the expenses of the sale should be met in the same proportion. In pursuance of the said agreement, item 2, which is of an extent of 69 cents, was purchased by the plaintiff in his name for a sum of Rs.71 and item 1 measuring 2 acres 67½ cents was purchased by defendants 2 and 3 in their names for Rs. 1001. Possession of the properties were delivered to the respective parties, item 2 on 20th March, 1924 and item 1 on 30th July, 1934. The accounts in respect of the sales appear to have been looked into by the parties and each has been claiming and receiving from the other his share of the expenses in the proportion of 1/6th and 5/6th as originally agreed upon. Exhibit A-21, dated 15th February, 1934, is an endorsement of payment of Rs.166-13-410 defendants 2 and 3 as and for the 1/6th share out of the sale price of Rs.1001 for item 1. Exhibit A-12, dated 23rd July, 1944, is the copy of the account sent by the plaintiff to defendants 2 and 3 in respect of the sale price and expenses as regards item 2 and defendants 2 and 3 pay the 5/6th share payable by them. Exhibit A-7 is a similar extract of account of defendants 2 and 3 furnishing the details of the expenses relating to the sale of item 1 and evidencing the receipt of 1/6th share payable by the plaintiff of those expenses. Exhibit A-8, dated 13th April, 1935, is a further list of expenses in respect of which the plaintiff pays his 1/6th share. Exhibits A-9, A-10 and A-11 are similar further extracts of accounts relating to the expenses. There is also the evidence of the plaintiff’s witnesses that the produce of both the items of land were divided in 1936 in the proportion agreed upon. There is, therefore, no doubt that the parties had acted on the agreement excepting that the properties were not partitioned as per the shares agreed upon. On 5th March, 1937, the 2nd defendant on behalf of his firm assigned the entire item 1 under Exhibit B-1 to one Kodumudi Alagappa Chetti claiming that the firm was solely entitled to the property and without reference to the agreement entered into with the plaintiff. Alagappa Chetti in his turn sold item 1 along with his other properties to the 1st defendant under Exhibit B-2, dated 6th February, 1939. The purchases made by Alagappa Chetti and by the 1st defendant, who was a minor on the date of the sale in his favour, have been found to have been made with the knowledge of the agreement, Exhibit A-5. The truth and the binding nature of the agreement was denied by the defendants. But both the Courts have found that the agreement was true and was executed by the agent of the plaintiff and the agent of defendants 2 and 3 and that it was acted up