S. M. Karim vs Mst. Bibi Sakina

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 647 of 1962

Decision Date: 14 February 1964

Coram: M. Hidayatullah, Raghubar Dayal

S. M. Karim versus Mst. Bibi Sakina was decided on 14 February 1964 by the Supreme Court of India. The judgment was authored by Justice M. Hidayatullah, who sat with Justices Raghubar Dayal and M. Hidayatullah on the bench. The parties were identified as petitioner S. M. Karim and respondent Mst. Bibi Sakina. The citation for this decision is 1964 AIR 1254 and 1964 SCR (6) 780. The case involved the application of the Benami Transaction‑Protection provisions of section 66 of the Code of Civil Procedure, 1908, particularly the sub‑section dealing with the rights of creditors, and addressed the question of whether a suit for adverse possession could lie under that section.

The headnote records that the appellant, identified as K, claimed ownership of certain property on the basis that he had purchased it from a person A, who had originally acquired the property benami in the name of a person H, and that H subsequently sold the property to the respondent S. The Court held, first, that the protection afforded by section 66 of the Code of Civil Procedure extends not only to the certified purchaser but also to anyone asserting a claim through that purchaser, and that the provision bars such a claim. The Court further observed that the second sub‑section of section 66 pertains to the claims of creditors and does not apply to the rights of transferees, a matter that is addressed by the first sub‑section. Second, the Court explained that if the possession of the true owner matures into title under the Limitation Act and that owner is subsequently dispossessed, the owner may sue to regain possession without relying on the benami character of the original transaction, provided that an alternative claim is clearly articulated and proven. The Court emphasized that an adverse possession claim must be continuous, public, and of sufficient extent, and that a pleading must at least indicate when the possession became adverse so that the limitation period against the affected party can be determined. The Court referred to the authorities 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.

The judgment was issued under the civil appellate jurisdiction in Civil Appeal No. 647 of 1962, which was an appeal by special leave from the judgment and decree dated 3 December 1959 of the Patna High Court in Appeal from Appellate Decree No. 642 of 1957. Counsel for the appellant was identified as the advocate for the appellant, while counsel for the respondent comprised the advocates for the respondent. The judgment was delivered on 14 February 1964 by Justice Hidayatullah. The Court described the appeal as challenging the High Court’s reversal of the concurrent judgments of the two lower courts, which had ordered the dismissal of the appellant’s suit. The appellant, Syed M. Karim, son of Syed Aulad Ali, claimed to be a transferee of the disputed properties from his father. The respondent, Mst. Bibi Sakina, identified as defendant No. 11, was a transferee of the same properties from Hakir Alam, who was defendant No. 2 and the son‑in‑law of Syed Aulad Ali. The appellant’s suit sought a declaration of title and confirmation of possession, or alternatively, delivery of the properties, against several defendants in respect of these and other properties. The Court noted that it was not required to consider the other defendants or the other properties in this appeal.

In this part of the suit the appellant relied on the allegation that his father, Syed Aulad Ali, had bought the disputed properties at a court sale on 28 May 1914, but that the purchase had been made benami in the name of his son‑in‑law, Hakir Alam. The reason for using a benami title was that, under the regulations of the Darbhanga Raj where Syed Aulad Ali was employed, persons holding certain positions were forbidden from purchasing property at court sales. Accordingly, the sale certificate was issued in Hakir Alam’s name, and at that time Hakir Alam was residing with Syed Aulad Ali. Later, on 6 January 1950, Syed Aulad Ali transferred the property to his son, who is the present appellant, and Hakir Alam subsequently conveyed the same property to Bibi Sakina. The appellant filed the present suit seeking a declaration of title, confirmation of possession, or alternatively, delivery of the property. In the present appeal the appellant emphasized that the trial court’s findings had clearly shown that the 1914 transaction was benami. While that observation may be correct, the appellant could not rely on it to sustain his claim because section 66 of the Code of Civil Procedure expressly bars such a suit. Section 66 provides that no suit may be maintained against any person who claims 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 a person through whom the plaintiff claims. Earlier the provision began with the words “no suit shall be maintained against a certified purchaser”; the amendment was introduced to extend protection not only to the certified purchaser but also to anyone claiming title under a court‑certified purchase. Thus the protection covers both the actual purchaser and any subsequent claimant. In the present case the appellant, as plaintiff, fell within the prohibition of the section, and the defendants were shielded by it. The appellant argued that the suit was permissible under the second sub‑section of section 66, which allows a third‑person suit where the property is liable to satisfy a claim of a third party against the real owner. He relied on the transfer from Syed Aulad Ali to the appellant, characterising it as a claim by the transferee against the real owner. However, the language of the second sub‑section refers expressly to the claims of creditors, not to the claims of transferees, which are governed by the first sub‑section. Accepting the appellant’s interpretation would defeat the entire policy of the provision, rendering the first sub‑section ineffective whenever the real purchaser transferred the property to another person. Consequently, the Court could not accept that construction and held that the appellant’s suit was barred by section 66 of the Code of Civil Procedure.

In this appeal the parties advanced an alternative argument that the title of Hakir Alam had been extinguished by long and uninterrupted adverse possession first by Syed Aulad Ali and thereafter by the plaintiff. The High Court rejected that argument. The Court observed that a plaintiff may rely on a claim of adverse possession only when his possession is disturbed; if the real owner’s possession matures into title under the Limitation Act and the owner is later dispossessed, the owner may sue for possession without invoking the benami character of the original transaction. However, the Court stressed that any alternative claim of adverse possession must be expressly pleaded and proved. The High Court had held that the pleading of adverse possession was absent in the suit and consequently set aside the findings of the two lower courts. The present Court noted that the plea of adverse possession had indeed been raised, and that the appellant relied on Sukan v. Krishanand(1) and Sri Bhagwan Singh and others v. Ram Basi and others(1) to argue that such a plea was unnecessary, or alternatively, to inquire what would constitute a proper plea. The Court found that those authorities did not assist the appellant.

The Court examined the plaint and found that it recorded the fact that after the purchase by Syed Aulad Ali, a benami transfer in the name of his son‑in‑law Hakir Alam Ali continued to occupy the property. Nevertheless, the plaint did not allege that this possession was ever adverse to the certified purchaser. Hakir Alam, being the son‑in‑law of Syed Aulad Ali, lived with him, and there was no suggestion that Syed Aulad Ali ever claimed a hostile title against him or that any dispute concerning ownership or possession ever arose. The Court explained that for a claim of adverse possession to succeed, the possession must be continuous, open, and exclusive, and the plaintiff must at least demonstrate the point at which possession became adverse so that the limitation period against the affected party can be identified. No evidence was presented showing when, if ever, possession became adverse, and a mere assertion in the relief clause that there was uninterrupted possession for “several 12 years” or that the plaintiff had acquired an “absolute title” was insufficient to sustain such a plea. The Court emphasized that long possession does not automatically amount to adverse possession and that a prayer clause cannot substitute for a pleading of adverse possession.

The Court further observed that the cited cases were of limited relevance because each case must be decided on the specific allegations contained in its plaint. The Court referenced Bishun Dayal v. Kesho Prasad and another [A.T.R. 1940 P.C. 202], where the Judicial Committee declined to accept an alternative claim based merely on possession after purchase without a proper plea. Accordingly, after reading the entire plaint, the Court agreed with the High Court that the suit did not contain a claim based on possession after purchase and that the High Court’s decision was proper under the circumstances.

In this case, the Court examined the appeal and determined that it could not be sustained. After reviewing the material presented, the Court concluded that the appellant had not established any ground upon which the appeal could proceed. Accordingly, the Court ordered that the appeal be dismissed in its entirety. In addition, the Court directed that the costs of the proceedings be awarded against the appellant, requiring the appellant to bear the expenses incurred by the opposing party. The dismissal of the appeal therefore terminated the appellate process, and the cost order imposed the financial liability on the appellant for the litigation undertaken.