Authored By : William Teunon, Thomas William Richardson

William Teunon, J.

1. In execution of a mortgage decree three taluks belongingto the defendant-respondent in this appeal were brought to sale. The sale tookplace on the 4th May 1901, and was confirmed on the 1st of March 1902.

2. On the 8th of March the auction-purchaser transferred theproperties by a conveyance executed ostensibly in favour of the presentplaintiff-appellant.

3. His case is that the purchase was one made by him on hisown account, while the defendant-respondent alleges that the purchase was forhis benefit and that the plaintiff was his benamidar.

4. The question thus arising is the only question of fact wehave to determine in this appeal.

5. It is not disputed that the purchase-money was in factprovided by the plaintiff, but this, the defendant says, was in pursuance ofnegotiations initiated before the execution sale and was in part payment to thedefendant of a sum of Rs. 6,000 for which the defendant had agreed to sell tothe plaintiff two smaller Bhils (Rongia Bhil and Rongia Howar) and an 8-annashare in a larger Bhil, the Souleswar Bhil. These Bhils, are part of theproperties included in the mortgage and sold under the mortgage-decree firstreferred to. The remaining 8-anna share in the Souleswar Bhil had beenpreviously sold by the defendant to one Abdul Hamid and others, this saletaking place after the mortgage but before the institution of the suit thereon.The Bhils, it may be observed, are excluded from the plaintiffs claim.

6. That there was what may be called a secret arrangementbetween the parties is admitted by the plaintiff, who says however that thearrangement was not with regard to the 3 Bhils but with regard to thedefendants homestead, 5 rials of land adjoining the homestead and also aparcel of land outside the 3 mortgaged taluks known as Kobadigha Kotta.

7. The learned Subordinate Judge has accepted the case madefor the defendant, and having been taken over the whole of the evidence I agreein his conclusions.

8. The auction-purchasers who executed the conveyance now inquestion were 4 in number, of whom two are dead. Of these two the son of oneand the two brothers of the 2nd, and of the two survivors (both Mohammadans)one Mohammad Jaifar have been examined (by the defendant. They aredisinterested witnesses and I cannot but attach importance to their evidence.That evidence is in itself reasonable and clearly explains how it was that fora small profit of Rs. 400 plus small portions of the lands in -suit (includinga 2 anna share in each of 3 Bhils), they consented to give up to the defendantthe valuable properties they had purchased and the defendant "thereupondiscontinued his application for setting aside the sale. The defendantsevidence is further corroborated by that of Abdul Hamid, one of the purchasersof the second half of the Souleswari Bhil. As the result of the negotiationswith the defendant, out of the 8 annas they gave up 3 1/2 annas. Thedefendants case is further supported by the value of the 3 Bhils, and by thepossession given by the defendant to the plaintiff immediately after the dateof the conveyance of the remaining 9 1/2-annas share of Souleswari Bhil. Theoriginal arrangement with the plaintiff no doubt was that he was to take 8annas in Souleswari and the extra If annas represents the 2 annas in the RongiaBhil surrendered to the auction-purchaser.

9. The case for the plaintiff is supported only by theevidence of interested witnesses. For the reasons I have given I agree with theSubordinate Judge in holding that under the conveyance in question the realpurchaser was the defendant and that plaintiff was merely his benamdar.

10. In this view of the case it is not very necessary todiscuss the contention advanced by the learned Pleader for the appellant,namely, that title being in the plaintiff by virtue of the conveyance, thedefendant cannot resist his claim for possession on the basis of a mereagreement to re-convey. In support of this view he has placed before us Section54 of the Transfer of Property Act and the oases of Immudipattam ThirugnanaKondama Naik v. Periya Dorasami 28 I.A. 46 : 24 M. 377 : 5 C.W.N. 217 : 7 Sar.P.C.J. 811 (P.C.), Timangowda v. Benepgowda 28 Ind. Cas. 946 : 39 B. 472 : 17Bom. L.R. 335, Kurri Veerareddi v. Kurri Bapireddi 29 M. 336 : 1 M.L.T. 153 :16 M.L.J. 395 and Maung Shwe Goh v. Maung Inn 37 Ind. Cas. 938 : 44 C. 542 : 25C.L.J. 108 : 21 M.L.T. 18 : 15 A.L.J. 82 : (1917) M.W.N. 117 : 32 M.L.J. 6 : 19Bom. L.R. 179 : 21 C.W.N. 500 : 5 L.W. 532 : 10 Bur. L.T. 69. Even if I were toaccept the appellants contention that title is in him, haying regard moreparticularly to the immediate delivery of possession of Souleswari Bhil by thedefendant, I should be inclined to hold that the present case falls within theprinciple enunciated in Puchha Lal v. Kunj Behary Lal 20 Ind. Cas. 803 [LQ/CalHC/1913/397] : 18C.W.N. 445 : 19 C.L.J. 213.

11. In the result in which my learned brother agrees, wedismiss this appeal with costs.

Thomas William Richardson, J.

12. The appellant is the plaintiff in a suit for thedeclaration of his title to certain land, for possession and for mesne profits.The dispute relates to three taluks known by their numbers as No. 60, No. 32and No. 21. These taluks originally belonged to the principal defendant, thedefendant No. 1, Krishna Gobinda Dut. He mortgaged them to the Sylhet. LoanCo., and then sold a portion to the defendants Nos. 3 to 10, or partly to someof those defendants and partly to the predecessors of others The mortgageeobtained a decree on the mortgage and in execution, on the 4th May 1901, talukNo. 60 was bought by defendants Nos. 14 and 15, taluk No. 32 by defendant No.13 and taluk No. 21 by the father of defendants Nos. 11 and 12, the total pricepaid being Rs. 3,065. On the 8th March 1902, in pursuance of an agreementarrived at on 18th February 1902, when the plaintiff paid Rs. 400 as earnestmoney, the purchasers sold to the plaintiff for Rs. 4,000 all the lands sobought with certain exceptions. Formal possession was delivered -to theplaintiff by the Court on the 26th April 1903 and confirmed on the 16th May1903.

13. The plaintiff founds on the title created in his favourby the conveyance of 8th March 1902, but the suit does not extend to all thelands covered by that document. The three taluks comprise lands both on thenorth and on the south of the Kushi River. The lands on the south are known asSouleswari Bhil, Rangia Howar and Rangia Bhil. The case for the defendant No. 1is that the plaintiffs purchase was made on his behalf under an oral agreementwhereby the lands on the north of the river were to be his property and theplaintiff was to have the greater part of the lands on the south of the riverat a valuation of Rs. 6,000, so that defendant No. 1 would receive from theplaintiff a sum of Rs. 1,600 in addition to the Rs. 4,000 which he had paid tothe auction-purchasers and in addition to two sums aggregating Rs. 400 advancedby him during the course of the litigation.

14. As to the lands on the south of the river it is notdisputed that the plaintiff is in actual possession of a 9 1/2-annas share ofSouleswari Bhil. There were certain subsidiary agreements between the plaintiffand the other parties interested, namely, the prior purchasers from thedefendant No. 1 and the auction-purchasers. In the case of the Souleswari Bhila 4 1/2 annas share was taken by some of the prior purchasers, Hamid Ali andothers, in lieu of the 8 annas (subject to the mortgage) which they had boughtfrom the defendant No. 1. A further one-anna share was retained by certain ofthe auction-purchasers. I need not further refer to this and the othersubsidiary-agreements, except to say that it is in controversy whether theplaintiff or the defendant No. 1 was instrumental in bringing them about. Onthe evidence I agree with the Subordinate Judge that the agreement was procuredby the exertions of the defendant No. 1.

15. As to the remainder of the lands as well on the south ason the north of the river, the further case made for the defendant No. 1 isthat he has never been deprived of actual possession, though the lands werenominally sold to the plaintiff and possession was formally given to him. Boththe plaintiff and the defendant No. 1 claim actual possession of Rongia Howarand Bhil (so far as they were nominally sold to the plaintiff). As the suitdoes not embrance these lands, the issue is not one which a final opinion needbe expressed.

16. The suit is confined to the lands oh the north of theriver, as to which the plaintiff asserts that he lost possession by reason ofan order made by the Magistrate under Section 145 of the Criminal ProcedureCode on the 15th March 1912. On the evidence I accept the finding of the Courtbelow that the defendant No. 1 was in possession throughout.

17. This statement of the facts leads to the crucial issuesin the case, whether there was such an agreement between the plaintiff and thedefendant No. 1 as the latter alleges, and if so, what was its legal effect.There is no doubt that these persons were at the time excellent friends andthat the plaintiff intervened in the affairs of the defendant No. 1 at hisrequest and in order to assist him. The evidence is that there were twoagreements, one prior to the sales in execution and the other subsequent tothose sales, in view of the altered position which then arose. It is commonground that the conveyance in the plaintiffs favour was preceded by someagreement between him and the defendant No. 1, but the parties differ as to itsterms. The question is not entirely free from difficulty, but I agree with thelearned Subordinate Judge and my learned brother that the evidence establishesthe case made for the defendant No. 1. As in the case of the subsidiaryagreements, it was he who induced the auction-purchasers to part with theirrights for the small sum of Rs. 4,000 and as part of the whole arrangement hewithdrew from the proceedings which he had instituted to have the auction-salesset aside.

18. It having been found that the agreement set up by thedefendant No. 1 is established, the next question is whether it is in law agood defence to this action.

19. It is urged for the plaintiff that he has the legaltitle and that the legal title cannot be defeated unless the defendant No. 1 isin a position to prove a countervailing title under an instrument formallyexecuted and registered, in compliance with the requirements of Section 51 ofthe Transfer of Property Act. The learned Pleader referred among otherauthorities to the decision of a Full Bench of the Madras High Court in KurriVeerareddi v. Kurri Bapireddi 29 M. 336 : 1 M.L.T. 153 16 M.L.J. 395followed inChidambara Chettiar v. Vaidilinga Padayachi 30 Ind. Cas. 408 [LQ/MadHC/1913/187] : 38 M. 519 and inRamanathan v. Ranganathan 43 Ind. Cas. 138 [LQ/MadHC/1917/148] : 40 M. 1134 : 6 L.W. 300 : 22M.L.T. 173 : 33 M.L.T. 262 : (1917) M.W.N. 757 and to the observations of thePrivy Council in Maung Shwe Goh v. Maung Inn 38 Ind. Cas. 938 : 44 C. 542 : 25C.L.J. 108 : 21 M.L.T. 18 : 15 A.L.J. 82 : (1917) M.W.N. 117 : 32 M.L.J. 6 : 19Bom. L.R. 179 : 21 C.W.N. 500 : 5 L.W. 532 : 10 Bur. L.T. 69. No reference wasmade by him to the decisions of this Court based on Walsh v. Lonsdale (1882) 21Ch. D. 9 : 52 L.J. Ch. 2 : 46 L.T. 858 : 31 W.R. 109 such as Puccha Lal v. KunjBehary Lal 20 Ind. Cas. 803 [LQ/CalHC/1913/397] : 18 C.W.N. 445 : 19 C.L.J. 213 and Rhagendra v.Sonatan 31 Ind. Cas. 987 [LQ/CalHC/1915/325] : : 20 C.W.N. 149, but it wascontended that if there was ever an agreement capable of being specificallyenforced the appropriate remedy, had not been sought within the time prescribed,by the law of limitation and the defendant. No. 1 was now too late to availhimself of any such rights.

20. Before dealing with these agreements let me turn for amoment to the nature of the transaction. It was suggested for the defendant No.1 in the first place that the plaintiff was a mere benamidar and that theposition was as if the defendant No. 1 had borrowed the Rs. 4,000 and thenmade, the purchase in the plaintiffs name. That, however, was not the formwhich the transaction took and it appears to me that the plaintiff wassomething more than a mere "name-lender." He paid the money out ofhis own pocket and he took in effect a substantial interest in at least a partof the property purchased It seems nevertheless to home to this that as regardsthe land on the north of the river the plaintiff is a bare trustee. Theplaintiff became the purchaser subject to the trust and confidence reposed inhim by the defendant No. 1. In other words, he purchased the whole on behalf ofthe defendant No. 1 subject to the agreement between them. It is true that inthe result the defendant No. 1 secures a part of the land without payinganything for it, but that was in accordance with the intention of all partiesincluding the auction purchasers and it cannot be said that there was noconsideration moving from the defendant No. 1 to the plaintiff. Theconsideration consisted of the influence which-the defendant No. 1 brought tobear on the prior purchasers and the auction-purchasers in regard both to theprincipal agreement and the subsidiary agreements, of his withdrawal from theproceedings taken to annual the execution sales and of his promise that theplaintiff should retain a part of the land at a valuation. On the merits, theplaintiffs present claim is open to be stigmatized as fraudulent. He isseeking for an advantage which no one ever intended that he should obtain.

21. It is clear that the agreement has been in partperformed. It was under the agreement that the conveyance was taken in theplaintiffs name, and this must be coupled with the fact that the plaintiff wasallowed to remain in actual possession of the lands on the north of the river.

22. Again, there seems no reason why the agreement shouldnot have been specifically enforced if the defendant No. 1 had institutedproceedings for the purpose within the time prescribed.

23. What then is the legal effect As to Section 54 of theTransfer of, Property Act, the question is not as simple as might at firstsight appear. Recent cases suggest that the Act does not contain the whole lawon the subject of the transfer of property, because there are other Acts whichcontain provisions relating to the same subject : Bapu v. Kashinath 39 Ind.Cas. 103 : 41 B. 438 : 19 Bom. L.R. 100 and Loke Yew v. Port Fwettenham RubberCo. (1913) A.C. 491 : 82 L.J.P.C. 89 : 108 L.T. 467. The Transfer of PropertyAct must be read for instance with the Specific Relief Act, by Section 3 ofwhich (subject no doubt to Section 4) "trust" is defined as including"every species of express, implied or constructive fiduciaryownership," and "trustee" as including every person holding,expressly, by implication or constructively, a fiduciary character,"Illustrations (g) and (h) apply, in no narrow spirit, the principle underlyingthese definitions to concrete cases. Moreover by Section 4 of the Transfer ofProperty Act, paragraphs 2 and 3 of Section 54 are to be read as"supplemental to the Indian Registration Act, 1877." There may be adoubt as to the precise effect of those words but it is perhaps permissible toadvert to Section 48 of the Registration Act, which lays down that allnon-testamentary documents duly registered under this Act and relating to anyproperty shall take effect against an oral agreement or declaration relating tosuch property, unless where the agreement or declaration has been accompaniedor followed by delivery of possession." Apart, however, from thatprovision, which might raise a difficulty as to "delivery" ofpossession, Section 54 of the Transfer of Property Act is not of itselfsufficient to carry the plaintiff home.

24. As to the argument that the defendant No. 1 cannot relyon the agreement because it is too late for him to sue for specificperformance, it may be that he cannot now actively enforce his rights under theagreement by legal proceedings, but the answer to the argument seems to be thatpossession is itself a title (at any rate to remain in possession") whicha plaintiff must displace before he can succeed. Here the plaintiff fails becauseequities founded on the agreement block his way. The possession which thedefendant No. 1 was allowed to retain lulled him into security or partialsecurity and there is no reason for denying him any advantage which thatpossession gives him. The observation of Lord Moulton in Loke Yews case (1913)A.C. 491 at p. 505 : 82 L.J.P.C. 89 : 108 L.T. 467 is apposite: "Thepresent action from this point of view is an action by a bare trustee of landto eject the beneficial owner who is and has for years been in possession ofthe land and is cultivating it."

25. The defendant No. 1 states that he is still willing toperform his part of the agreement as regards the land on the south of theriver.

26. I concur in thinking that the appeal should bedismissed.

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Mahammad Shafikul Huq Chowdhury vs. Krishna Gobinda Dutta and Ors. (30.04.1918 - CALHC)