JUDGMENT Tudball and Sulaiman, JJ.
1. This is a plaintiff's appeal. The plaintiff is the son of one Narain Das. The defendant respondent, Musammat Bishan Devi, is his own mother and Lala Jagannath Das, the other defendant respondent, is his own brother. According to the allegations in the plaint, the father, Lala Narain Das, and the two sons constituted a joint Hindu family, and their mother, the defendant No. 1, lived jointly with Lala Narain Das, when on the 20th of November, 1891, Narain Das purchased out of joint family funds the property which is now in dispute, at an auction sale in execution of a decree obtained by him against certain judgment-debtors. The purchase was made in the name of Musammat Bishan Devi, the wife of Narain Das. The certificate of sale was issued in her name and mutation of names took place in her favour after the sale. Her name has continued from that time down to the present. In January, 1911, Narain Das died. In 1917 Musammat Bishan Devi applied to the Revenue Court for partition of the share recorded in her name. The plaintiff appellant objected that she was not the owner of it and not in possession. The Revenue Court, under Section 111 of the Land Revenue Act, directed the present plaintiff to bring a suit within three months in the Civil Court for the decision of the question. The order was pissed on the 21st of February, 1918, and the present suit was brought on the 26th of February, 1918. The plaint has been curiously worded in places. In paragraph 9 onwards it is alleged that Narain Das, as head of the joint family, was the owner in possession of the said property purchased and up to the time of his death in January, 1911, he enjoyed it as owner; that he bad purchased the property himself for the benefit of the joint family; that the act of that Narain Das, in that had used the name of his wife to make the purchase, no matter for what reason he did so, was contrary to his right and power and the plaintiff and his brother are not bound by it; that after the death of Narain Das the plaintiff and his brother have enjoyed the property as owners by right of survivorship; that the defendant No. 1, Musammat Bishan Devi, had not received at any time any personal benefit either in the life-time of Narain Das or after his death; that the has not at any time acquired any right in the said property nor had she any right left in it.
2. The defendants did not admit the facts stated in the plaint. It was alleged that the property had been really and truly acquired by Musammat Bishan Devi; that it was hers, she was-in possession of it and had all along been in possession of it.
3. In his reliefs the plaintiff asked for a declaration that "he-and his brother were the owners in possession of the property after the death of Narain Das, the real and actual purchaser, and that defendant No. 1 had no ownership or possession therein." It will be noticed that the plaintiff did not put forward any alternative case, namely, that even if Musammat Bishan Devi be deemed to have acquired the property, still he, the plaintiff, and his brother had held the same adversely as against her for more than twelve years and had therefore acquired title by prescription. Also there was no issue framed on the basis of any such claim. The court below has held that the suit as brought by the plaintiff is not maintainable in view of the terms of Section 66 of the Code of Civil Procedure. The plaintiff comes here on appeal and on his behalf three points are urged:
(1) That Musammat Bishan Devi was a member of the joint Hindu family. That the purchase in her name was therefore not a benami transaction such as is contemplated by Section 66, but is really an acquisition of property by a joint family in the name of one member of that family; and that the plaintiff is therefore entitled to bring this suit despite Section 66.
(2) That in any event the plaintiff is entitled to come in under Clause (2) of Section 66, which says that nothing in the sections shall bar a suit to obtain a declaration that the name of any purchaser certified as aforesaid was inserted in the certificate without the consent of the real purchaser. The contention is that, the plaintiff did not consent to the entry of the name of Musammat Bishan Devi in the certificate and therefore he could come in and ask for a declaration that the entry of her name was made without his consent.
(3) That the suit ought not to have been dismissed on the decision of this preliminary issue, because the plaintiff is entitled to claim on the basis of adverse possession as against the defendant No. 1 and the court ought to have gone into the question of adverse possession and decided it.
4. We will take the third question first of all. It may be briefly discussed. We have pointed out above that the plaintiff nowhere raised the alternative case that he had acquired title by adverse possession as against Musammat Bishan Devi. No issue was framed upon it and therefore no evidence, directed to it. There is, therefore, no force whatsoever in this plea.
5. We take next the second contention, namely, that assuming that section for does apply, still the plaintiff's case comes within the second clause of the section, in that the name of Musammat Bishan Devi was inserted in the certificate without his consent. Now it is the plaintiff's case that the purchase was made by Narain Das and that the real purchaser was Narain Das. The suit contemplated by Clause (2) of Section 66 is a suit to obtain a declaration that the name of the purchaser was inserted in the certificate without the consent of the real purchaser. Now, the plaintiff has all along admitted that Narain Das deliberately for some unknown reason had the name of Musammat Bishan Devi entered in the certificate. The real purchaser, therefore, actually did consent. He was the head of the family and he made the purchase, according to the plaint, out of joint family funds. We would point out that though he died in 1911, the wife's name has continued from the date of the purchase up to the date of the present suit, which is 1918. In our opinion, on the facts stated in the plaint the plaintiff's suit does not fall within Clause (2) of Section 66. There is no allegation of fraud whatsoever in the plaint.
6. We then come to the main question in the case. Is or is not the present case a pure benami case, or is it one of those in which property is acquired by one member of a family out of joint family funds for the benefit of the plaintiff and the defendant together? The argument placed before us is that a Hindu wife is a member of a joint Hindu family; that she is, as such, interested in the estate because she is entitled to be maintained out of it; if she is not properly maintained she is entitled to sue and to have her maintenance made a charge upon the estate. Therefore the case, it is urged, is clearly one of those not contemplated by Section 66, but one of those in which the plaintiff claims that the purchase made by the defendant was made for and on behalf of both defendant and himself and in the proceeds of which he, the plaintiff, is entitled to share. As against this view it is painted out with considerable force that in all these suits which have been held not to fall within Section 66 the plaintiff has pleaded that though the purchase was made in the name of the defendant it was made for and on behalf of the plaintiff and the defendant together and that both parties are entitled to share therein. It is pointed out that Musammat Bishan Devi according to the plaint itself has not and never had any interest whatsoever in this property. We find it very difficult indeed to hold that, though Musammat Bishan Devi had a right of maintenance as against the joint family and its estate, she had such an interest as would take her case out of the operation of Section 66 of the Code of Civil Procedure. A joint Hindu family that owns property consists of the male members of the family, and so long as the family is joint, the female members have no proprietary interest in the estate. They cannot secure or bring about partition. Their rights are restricted under the Mitakshara law merely to their right of maintenance, without a charge against any special property. It is only where a decree is obtained and a charge is created by the decree that any property, can be specially charged with the right of maintenance. Our attention has been called to the decision in Chunder Nath Moitro v. Kristo Komul Singh (1871) 15 W.R. C.R. 357. We do not think that that helps us in the present case. All that is laid down therein is that there is a presumption, where property is acquired in the name of a female member of a joint Hindu family, that the property has been acquired out of the joint family funds. It nowhere lays down that the female member of a joint Hindu family has any proprietary interest of any sort in, the joint family property. That case, moreover, has not been uniformly followed by the Calcutta High Court. However, we need not discuss it here as it does not assist us in the case-The true test of whether a case falls within the purview of Section 66 of the Code of Civil Procedure has been laid down more than once, e.g. in the case of Bodh Sing Doodhooria v. Gunesh Chunder Sen (1873) 12 B.L.R. 317. Their Lordships of the Privy Council in discussing the terms of Section 260 of the old Code of Civil Procedure, Act VIII of 1859, remarked as follows: "The provisions of the section were designed to check the practice of making what are known as benami purchases at execution sales, that is, transactions in which A secretly purchases on his own account in the name of B. Their Lordships think that they cannot be taken to affect the rights of members of a joint Hindu family who, by the operation of law and not by virtue of any private agreement or understanding, are entitled to treat as part of their common property an acquisition howsoever made by a member of the family in his sole name, if made by the use of the family funds.
7. In the case of Achhaibar Dube v. Tapasi Dubs (1907) I.L.R. 29 Al. 557 it was remarked as follows in respect to the terms of Section 317: "It seems to be the unanimous view of all the Courts that Section 317 and the corresponding section of the previous Act were enacted against what are known as benami purchases, that is, purchases made secretly by one person for another, the ostensible purchaser having no interest in the purchase and the real purchaser wishing for some reason that his name should not appear."
8. In the present case it is the plaintiff's own case that Musammat Bishan Devi, the ostensible purchaser, had no interest in the purchase; that the real purchaser was the joint family represented by Narain Das, its managing member. It is now urged before us that the ostensible purchaser Musammat Bishan Devi had an interest in the purchase inasmuch as she had a right of maintenance against the joint family. We do not think that this interest is the interest which is contemplated in the above remarks. That interest is a proprietary interest. Musammat Bishan Devi, if the facts stated in the plaint are correct, acquired no title or proprietary interest whatsoever in the property, and the present suit is not a suit brought by the plaintiff claiming to share in the property with the defendant. On the face of the plaint the defendant Musammat Bishan Devi is a pure benamidar. In our opinion the decision on the point of law by the court below is correct and the appeal must fail. The suit was rightly dismissed on the preliminary issue. We, therefore, dismiss the appeal with costs.