JUDGMENT
1. This is a plaintiff's appeal. The plaintiff is the son of Lala Narain Das. The defendant-respondent, Musammat Bishen 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 Bishen Devi, the wife of Narain Das, The ertificate 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 Bishen 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 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 passed on the 21st of February 1916 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 no to the time of his death in January 1911 he enjoyed it as an owner; that he had purchased the property himself for the benefit of the joint family; that the net of Lala Narain Dag, in that he 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 Retrain Das the plaintiff and his brother have enjoyed the property as owners by right of survivorship; that the defendant No. 1, Musammat Bishen Devi, had not received at any time any personal benefit either in the life time of Narain Das, or after his death; that she has not at any time acquired any tight in the said property nor had she any right left in it.
2. The defendants did not admit the fasts stated in the plaint, It was alleged that the property had been really and truly acquired by Musammat Bishen 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 Bishen 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 bad, 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 Civil Procedure Code. The plaintiff comes here on appeal and on his behalf three points are urged:
(1) That Musammat Bishen 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 Requisition 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 some in under Clause 2 of Section 66, which says that nothing in the section 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 Bishen 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 dismissed. We have pointed out above that the plaintiff nowhere raised the alternative case that he had acquired title by adverse possession as against Musammat Bishen 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 nest the second contention, namely, that assuming that Section 66 does apply, still the plaintiff's case comes within the second clause of the section, in that the name of Musammat Bishen Devi was inserted in the certificate without his son-sent. 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 Bishen 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 no 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 alarm 2 of Section 66, There is no allegation of fraud whatsoever in the plaint.
6. We then some 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 whish 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 pointed out with considerable force that in all those 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 Bishen 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 Bishen 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 Civil Procedure Code. 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 Eomul Singh 15 W.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 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 mote than once, e.g., in the case of Bodh Singh Doodhooria v. Ganesh Chunder Sen 12 B.L.R. 317, Their Lordships of the Privy Coucsil in discussing the terms of Section 260 of the old Civil Procedure Code, Act VIII of 1859, remarked as follows: "The provisions of the section were designed to cheek 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 effect 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 Dube 29 A. 557 : A.W.N. (1907) 166 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 for responding 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 Bishen 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 Bishen 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 Bishen 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 Bishen 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, including fees on the higher scale.