S. M. Karim Vs. Mst. Bibi Sakina
 INSC 35 (14 February 1964)
14/02/1964 HIDAYATULLAH, M.
CITATION: 1964 AIR 1254 1964 SCR (6) 780
Benami Transaction-Protection under s. 66-If
available to transfereeSub-s. (2) applies to creditors-Suit for adverts
possession, if lies--Code of Civil Procedure, 1908 (Act 5 of 1908), s. 66.
The appellant K claimed certain property
alleging that he had purchased it from one A, who had purchased it benami in
the name of one H, and H in turn had sold it to S the respondent.
Held: (i) The protection available by s. 66
of the Code of Civil Procedure is not only against the certified purchaser but
also against anyone claiming through him and s. 66 bars the claim.
The second sub-section refer to the claims of
creditors and not of transferees, which is dealt with in the first subsection.
(ii) If the possession of the real owner
ripens into title under the Limitation Act and he is dispossessed, he can sue
to obtain possession, for he does not then rely on the benami nature of the
transaction. But the alternative claim must be clearly made and proved. Adverse
possession must be adequate in continuity, in publicity and extent and a plea
is required at the least to show when possession becomes adverse so that the
starting point of limitation against the party affected can be found.
Sukan v. Krishnand, I.L.R. 32 Pat. 352, Sri
Bhagwan Singh v. Ram Basi Kuer, A.I.R. 1957 Pat 157 and Bishun Dayal v. Kesho
Prastid, A.I.R. 1940 P.C. 202. referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 647 of 1962.
Appeal by special leave from the judgment and
decree dated December 3, 1959 of the Patna High Court in Appeal from Appellate
Decree No. 642 of 1957.
S. P. Varma, for the appellant.
S. P. Sinha, Shahzadi Mahiuddin and Shaukat
Hussain.for the respondent.
February 14, 1964. The Judgment of the Court
was delivered by HIDAYATULLAH, J.-This is an appeal by special leave against
the judgment of the High Court of Patna reversing the concurrent judgments of
the two courts below, and ordering the dismissal of the suit of the appellant.
The appellant is Syed M. Karim, son of one Syed Aulad Ali and the respondent
Mst. Bibi Sakina (defendant No.11) is transferee of the properties in dispute
from Hakir Alam (defendant No.
2), son-in-law of Syed Aulad Ali. The
appellant, in his turn, is a transferee of the same properties from his father
Syed Aulad Ali.
782 The suit was brought for declaration of
Title and confirmation of possession or in the alternative for delivery thereof
against several defendants in respect of this and other properties. We are not
concerned in this appeal with the other defendants or the other properties.
This part of the appellant's suit was based on the allegation that Syed Aulad
Ali had purchased the suit properties on May 28, 1914 at a court sale, benami
in the name of his son-in-law Hakir Alam. The reason for the benami purchase
was that under the rules of the Darbhanga Raj where Syed Aulad Ali was employed,
persons serving in certain capacities were prohibited from purchasing at court
sales. The sale certificate was issued in the name of Hakir Alam who was then
living with Syed Aulad Ali. On January 6, 1950, Syed Aulad Ali sold ;the
property to his son the present appellant and Hakir Alam sold the property in
his turn to Bibi Sakina and the present suit was filed for the above reliefs.
In this appeal, it has been stressed by the
appellant that the findings clearly establish the benami nature of the transaction
of 1914. This is, perhaps, true but the appellant cannot avail himself of it.
The appellant's claim based upon the benami nature of the transaction cannot
stand because s. 66 of the Code of Civil Procedure bars it. That section
provides that no suit shall be maintained against any person claiming title
under a purchase certified by the Court on the ground that the purchase was
made on behalf of the plaintiff or on behalf of someone through whom the
plaintiff claims. Formerly, the opening words were, no suit shall be maintained
against a certified purchaser. and the change was made to protect not only the
certified purchaser but any person claiming title under a purchase certified by
the Court. The protection is thus available not only against the real purchaser
but also against anyone claiming through him. In the present case, the
appellant as plaintiff was hit by the section and the defendants were protected
by it, It is contended that the case falls within the second subsection under
which a suit is possible at the instance of a third person who wishes to
proceed against the property.
though' ostensibly sold to the certified
purchaser, on tie ground that it is liable to satisfy a claim of such third
person 783 against the real owner. Reliance is placed upon the transfer by Syed
Aulad Ali in favour of the appellant which is described as a claim by the
transferee against the real owner. The words of the second sub-section refer to
the claim of creditors and not to the claims of transferees.
The latter are dealt with in first
sub-section, and if the meaning sought to be placed on the second sub-section
by the appellant were to be accepted, the entire policy of the law would be
defeated by the real purchaser making a transfer to another and the first sub-section
would become almost a dead letter. In our opinion, such a construction cannot
be accepted and the plaintiff's suit must be held to be barred under s. 66 of
As an alternative, it was contended before us
that the title of Hakir Alam was extinguished by long and uninterrupted adverse
possession of Syed Aulad Ali and after him of the plaintiff. The High Court did
not accept this case. Such a case is, of course, open to a plaintiff to make if
his possession is disturbed. If the possession of the real owner ripens into
title under the Limitation Act and he is dispossessed, he can sue to obtain
possession,for he does not then rely on the benami nature of the transaction.
But the alternative claim must be clearly made andproved. The High Court held
that the plea of adverse possession was not raised in the suit and reversed the
decision of the two courts below. The plea of adverse possession is raised
here. Reliance is placed before us on Sukan v. Krishanand(1) and Sri Bhagwan
Singh and others v. Ram Basi and others(1) to sumit that such a plea is not
necessary and alternatively, that if a plea is required, what can be considered
a proper plea. But these two cases can hardly help the appellant. No doubt, the
plaint sets out the fact that after the purchase by Syed Aulad Ali, benami in
the name of his son-in-law Hakir Alam Ali continued in possession of the
property but it does not say that this possession was at any time adverse to
that of the certified purchaser. Hakir Alam was the son-in-law of Syed Aulad
Ali and was living with him. There is no (1) I.L.R. 32 Pat. 353.
(2) A.I.R. 1957 Pat. 157.
784 suggestion that Syed Aulad Ali ever
aserted any hostile title against him or that a dispute with regard to
ownership and possession had ever arisen. Adverse possession must be adequate
in continuity, in publicity and extent and a plea is required at the least to
show when possession becomes adverse so that the starting point of limitation
against the party affected can be found. There is no evidence here when
possession became adverse, if it at all did, and a mere suggestion in the
relief clause that there was an uninterrupted possession for "several 12
years" or that the plaintiff had acquired "an absolute title"
was not enough to raise such a plea. Long possession is not necessarily adverse
possession and the prayer clause is not a substitute for a plea. The cited
cases need hardly be considered, because each case must be determined upon the
allegations in the plaint in that case. It is sufficient to point out that in
Bishun Dayal v. Kesho Prasad and another [A.T.R. 1940 P.C. 202], the Judicial
Committee did not accept an alternative case based on possession after purchase
without a proper plea.
Reading the plaint as a whole, we agree with
the High Court that a case based on possession after the purchase was not
stated in the plaint and the decision of the High Court in the circumstances of
this case was therefore proper. The appeal fails and is dismissed with costs.