P L D 1959 (W (PLP)

May sue in his own name‑Decision in suit res judicata against true owner. A benamidar may sue in his own name and the decision obtained by him or against him is res judicata against the beneficial owner. Gur Narayan's case I L R 46 Cal. 566 rel. Guddappa v. Balaji A I R 1941 Bom. 274 (F.B.) distinguished. Nathulal for Appellant. M. K. Chandnani for Respondent. Dates of hearing : 4th and 18th May 1959. The plaint is not on record, but its substance has been given both in the decree and in the judgment of the trial Court, namely, that one Allahwarayo, when a standing trial for murder in jail, conveyed to the infant plaintiff the property in suit in consideration of monies advanced to him by the father of the infant plaintiff and that the infant plaintiff by his next friend, his father, sued for a declaration that the property in suit belonged to him. Two issues of law were treated as preliminary issues by the lower Court. They were issue No. 4. "Whether the sale is void on account of the plaintiff being a minor vendee ?" and issue No. 6 "Whether the plaintiff has no right to sue, if so, who has to sue ?" In the lower Court by mistake it was held that an infant being incapable of contracting under section 11 of the Contract Act is also incapable of being the transferee under a sale deed of immovable property. Mr. Nathulal for the appellant now concedes that this view of law taken in the lower Court is not correct and I agree that there is a difference between contracting and being a transferee. As a result, however, of this view taken in the lower Court on Issue No. 4, that Court held that though a benamidar can sue Issue No. 6 did not survive. Before me it was argued by Mr. Nathulal that the minor not having sued as a benamidar could not maintain an action on the footing that he was a benamidar. But the facts as recited above showed how this transaction had come about and the net result of the pleadings as to how the conveyance had been executed showed that the transaction was benami for the law is that the person who provides the consideration is the true owner, unless of course the doctrine of advancement applies. Upon the point whether a benamidar is entitled to sue the decision of the Privy Council in Gur Narayan's case (I L R 46 Cal. 566) is decisive since it is a decision of the Privy Council before Partition and it is not maintained that this decision has been overruled by any decision of the Federal Court or of the Supreme Court. A benamidar may sue in his own name and the decision obtained by him or against him is res judicata against the beneficial owner. It is true that in Guddappa v. Balaji (A I R 1941 Bom. 274 (F B)) we have a sentence of Beaumont, C. J. "It is a fraud for a plaintiff to claim a beneficial title under a deed in respect of which he was a mere benamidar " but that remark must be read subject to the context of the case and in that case the defendant was allowed to show that this benami transaction had been utilized as a device to work a fraud upon the creditors and therefore it was held that the plaintiff benamidar could not take advantage of his own fraud. The Privy Council case to which I have referred above shows that there is nothing inherently wrong in a benami transaction and in the present case there is nothing on record, at least at present, to show that there was any fraud in adopting this benami transaction. 1, therefore, consider that the decision of the learned District Judge setting aside the decision of the trial Court was correct in law. The result is that the appeal is dismissed with costs. It is conceded by Mr. Chandnani that in a suit by a benamidar the defendant is at liberty to take any defence against him which would be open to him to take if the beneficial owner were the plaintiff. A.H.???????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.