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Judgment
The plaintiff is the assignee of the rights of a purchaser in a Court-sale held in 1885, under a decree obtained in 1884 upon the hypothecation
(Exhibit C, dated 23rd February 1882). The sixth defendant (respondent) purchased the right, title and interest of apparently one of the
mortgagors (in Exhibit C) in execution of a Small Cause Court decree in 1883, but was not made a party to the suit on Exhibit C. The question is
whether the plaintiff is entitled to show that the sixth defendant purchased benami for the mortgagors in C. Both the lower Courts have held that he
is not so entitled. Under the purchase in the suit or Exhibit C, the plaintiff has acquired the rights not only of the mortgagors, whatever they were in
1885, but also the rights of the mortgagee under Exhibit C, as they stood on its date, viz., 23rd February 1882. It is contended for the respondent
that u/s 317, Civil Procedure Code, as interpreted in Bama Kvnvp v. Sridevi ILR 16 Mad. 290 no person, under any circumstances, may prove
that the certified auction purchaser was not the real purchaser; but this is opposed to the conclusions arrived at in Natesa v. Venkataramayyan ILR
6 Mad. 135 and Bamakrishnappa v. Adinarayana ILR 8 Mad. 511. In the former it was held that Section 317 does not bar the son of a Hindu
father from proving in a suit for partition that the certified purchaser was acting benami for the father. In the latter it was held that a person who did
not claim under the benami purchaser was not precluded by Section 317 from showing the real character of the purchase. There can be no doubt
but that the mortgagee under Exhibit C, as a person not claiming under either of the parties to the benami purchase, was entitled in the suit instituted
by him on the mortgage to show, if necessary, the true nature of the purchase.
Consequently, the present plaintiff, as occupying his place, is equally so entitled.
We must, therefore, ask the District Judge to find whether the purchase by the sixth defendant was benami for the mortgagors as alleged on
behalf of plain�tiff. If the finding on the above issue is hi favour of the sixth defendant, we will ask the District Judge to find further whether the
sixth defendant acquir�ed by his purchase the right of both the mortgagors (Nambiars) or only of one of them against whom the decree was
passed.
Fresh evidence may be taken on these issues on both sides. Finding is to be returned within two months of receipt of this order, and seven days
will be allowed for filing objections after notice of the receipt of the finding has been posted up in this Court