# • RAGHO PRASAD GUPTA v. SRIKRISHNA PODDAR A11gust 23, 1968

- **Citation:** [1969] 1 S.C.R. 834
- **Court:** Supreme Court of India
- **Decided:** 1969
- **Case number:** Civil Appeal No. 1117 of 1965
- **Bench:** S. M. StKRl, R. 5. Bachawat, K. 5. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ragho-prasad-gupta-v-srikrishna-poddar-a11gust-23-1968-4528
- **Pages:** 6

## Headnote

B
Hena111icl"r-:-l'any 10 agrce111cnI of refc1 cncc of dispute
to
arbitrano11-and in proceedings under s. 14. Arbitration Act, 1940--All contentions open to re(I/ 01~·11er prc•sw·d hy
ll<•na111irl~r·· -fl rrnl n11·ncr hound
b.'· dcci'sion in thr proceedings.
L obt~1incd a plot of lan<l in a scttlcn1c1H as the bcnan1i1.lir of the
oppcllant ond the rcspond.:nt claimed the same land 011 the basi< of another
scttlcn1ent.
The respondent and L agreed 10 refer a dispulc
about the
O\\'ncrship of the land. to arhitration.
After an a\11ard n1adc by the arbitrator \\'as filed in court under s. 14 of the lndi;111
Arbitration
Act, I.
filed an application in the form of a \vrittcn statcn1cnt, \vhich \\'as verified
and signed by the appellant, pr;1yinf! that the a\l.:ard be set J!)idc and
the
'>U!t
dismissed.
L died on .July I, 1955
:-ind his hei:-'>
\\'ere sL1hstituted
in his
place
in the proceedings.
They filed a further \Vrittcn stat(ment
adopting L'' c;1rlier
\\'rittcn
statement
and
staling that the
appellant
,..,,as the rco.li ov..·ncr and a necessary party.
The appellant then made an
application to be joined M a defendant. but this was dismis-;cd by the
:Munsif v.·ith an observation to the effect that only L and the respondent
v.1erc p~1rties to the arbitration and the :1ppcllant had no /oc14s .Handi to
be added a-;
<.1 party; and furthermore, that any a\vard or dec'rcc in the
matter \Vould not bind the appellant.
Thercaflcr ohjcctions to !he ~l\vard
were pressed by the heirs of L and the Mw1<if dismissed the suit and declined to pass a decree in terms of the J\\'ar<l.
However. a first appeal by
the rc~pondcnt was allowed and the Addition:tl Sub-Judr,c passed a decree
in terms of the. award.
In execution proceedings con1mcaccd by the respondent, an order v.'as
1nadz for delivery of possession but as the appellant obstructed the cour\
peon in giving possession of the prope'rly. the respondent filed an appli·
cation ag-Jinst the appcllont under Order 21 Ruic 97 C.P.C.
This applii::Jtion was dismissed by the 'tvfunsif on the vie\v that the appellant's prayer
for being added J party in the earlier suit ha\'ing been rejected, he \Vas
not bound hy the
dccr~c passed
a~ainst the hcnam;dar.
However, the
ltigh Court allo,ved the respondent's
~evision
petition
under
s. t 15
(~.P.C. and dircclcd the executing court to deliver p0sc:cssion of the land
to the respondent.
On appeal to this Court by spcck1l leave.
l-IELD : ~fhe appcJlant v.·as bound by the decree p~1ssc<l in the earher
,uir and t!Y.: decree could he executed against h'm under 0. 21
r.
35
C.PJ'.: he \\.'a<: therefore hound to vacate_ the- p'ropcrty.
ll is \\·ell settled that in any lit.igation \viih a third p~irty, the bcnamidar
c"n sufficicntlv represent the real owner. The decision in anv proce:odini;
hrought hy or against the hcnamidar will bind the real owner though re I•
Ol)l joined as a partv unless it is sho\VO that the. henamidar co.uh! t}Ot
or
did not in fact
rcprci'.cnt the intL·rc<..t of
the
real
O\\'ncr
1n
t~al
prCICL•eding. fS~7 (:]
c
D
E
F
G
H
-
' .
•
A
B
c
D
·F
G
H
R. P. GUPTA v. S. l'ODDAR (Bachawat, !.)
835
The question whether the respondent would be. bound by. the deeree
was not in issue before the Munsif and the expressron of op1n1on on that
question coulll operate as res judicata.
o~ the facts, it :vas clear t~at _the
non-joinder of the appellant as a party did not caus~ him any p~e1ud1ce.
All the contentions which could be advanced on his behalf agamst the
validity of the award \Vere put forward. by
L'·s
heirs
and
vigorously
pressed. [837 HJ
G11r Narayan v. Sheo Lal Singh, L.R.46 I.A. I; Prakash
Chandra
Ghosh v. Mahinw Ranjan Clwkrabarti, !.L.R. [1947] (2)
Cal. 185; and
Mata Prasad v. Ran1 Cltarafl St1/Ju; I.L.R. 36 All. 446: referred to.

## Text

•
RAGHO PRASAD GUPTA
v.
SRIKRISHNA PODDAR
A11gust 23, 1968
A
[S. M. StKRl, R. 5. BACHAWAT AND K. 5. HEGDE, JJ.J
B
Hena111icl"r-:-l'any 10 agrce111cnI of refc1 cncc of dispute
to
arbitrano11-and in proceedings under s. 14. Arbitration Act, 1940--All contentions open to re(I/ 01~·11er prc•sw·d hy
ll<•na111irl~r·· -fl rrnl n11·ncr hound
b.'· dcci'sion in thr proceedings.
L obt~1incd a plot of lan<l in a scttlcn1c1H as the bcnan1i1.lir of the
oppcllant ond the rcspond.:nt claimed the same land 011 the basi< of another
scttlcn1ent.
The respondent and L agreed 10 refer a dispulc
about the
O\\'ncrship of the land. to arhitration.
After an a\11ard n1adc by the arbitrator \\'as filed in court under s. 14 of the lndi;111
Arbitration
Act, I.
filed an application in the form of a \vrittcn statcn1cnt, \vhich \\'as verified
and signed by the appellant, pr;1yinf! that the a\l.:ard be set J!)idc and
the
'>U!t
dismissed.
L died on .July I, 1955
:-ind his hei:-'>
\\'ere sL1hstituted
in his
place
in the proceedings.
They filed a further \Vrittcn stat(ment
adopting L'' c;1rlier
\\'rittcn
statement
and
staling that the
appellant
,..,,as the rco.li ov..·ncr and a necessary party.
The appellant then made an
application to be joined M a defendant. but this was dismis-;cd by the
:Munsif v.·ith an observation to the effect that only L and the respondent
v.1erc p~1rties to the arbitration and the :1ppcllant had no /oc14s .Handi to
be added a-;
<.1 party; and furthermore, that any a\vard or dec'rcc in the
matter \Vould not bind the appellant.
Thercaflcr ohjcctions to !he ~l\vard
were pressed by the heirs of L and the Mw1<if dismissed the suit and declined to pass a decree in terms of the J\\'ar<l.
However. a first appeal by
the rc~pondcnt was allowed and the Addition:tl Sub-Judr,c passed a decree
in terms of the. award.
In execution proceedings con1mcaccd by the respondent, an order v.'as
1nadz for delivery of possession but as the appellant obstructed the cour\
peon in giving possession of the prope'rly. the respondent filed an appli·
cation ag-Jinst the appcllont under Order 21 Ruic 97 C.P.C.
This applii::Jtion was dismissed by the 'tvfunsif on the vie\v that the appellant's prayer
for being added J party in the earlier suit ha\'ing been rejected, he \Vas
not bound hy the
dccr~c passed
a~ainst the hcnam;dar.
However, the
ltigh Court allo,ved the respondent's
~evision
petition
under
s. t 15
(~.P.C. and dircclcd the executing court to deliver p0sc:cssion of the land
to the respondent.
On appeal to this Court by spcck1l leave.
l-IELD : ~fhe appcJlant v.·as bound by the decree p~1ssc<l in the earher
,uir and t!Y.: decree could he executed against h'm under 0. 21
r.
35
C.PJ'.: he \\.'a<: therefore hound to vacate_ the- p'ropcrty.
ll is \\·ell settled that in any lit.igation \viih a third p~irty, the bcnamidar
c"n sufficicntlv represent the real owner. The decision in anv proce:odini;
hrought hy or against the hcnamidar will bind the real owner though re I•
Ol)l joined as a partv unless it is sho\VO that the. henamidar co.uh! t}Ot
or
did not in fact
rcprci'.cnt the intL·rc<..t of
the
real
O\\'ncr
1n
t~al
prCICL•eding. fS~7 (:]
c
D
E
F
G
H
-
' .
•
A
B
c
D
·F
G
H
R. P. GUPTA v. S. l'ODDAR (Bachawat, !.)
835
The question whether the respondent would be. bound by. the deeree
was not in issue before the Munsif and the expressron of op1n1on on that
question coulll operate as res judicata.
o~ the facts, it :vas clear t~at _the
non-joinder of the appellant as a party did not caus~ him any p~e1ud1ce.
All the contentions which could be advanced on his behalf agamst the
validity of the award \Vere put forward. by
L'·s
heirs
and
vigorously
pressed. [837 HJ
G11r Narayan v. Sheo Lal Singh, L.R.46 I.A. I; Prakash
Chandra
Ghosh v. Mahinw Ranjan Clwkrabarti, !.L.R. [1947] (2)
Cal. 185; and
Mata Prasad v. Ran1 Cltarafl St1/Ju; I.L.R. 36 All. 446: referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1117 of
1965.
Appeal by special leave from the judgment and order dated
December 17, 1963, of the Patna High Court in Civil Revision
No. 287 of 1963.
C. B. Agarn,ala and K. K. Sinha, for the appellant.
M. C. Chag!a and Naunit Lal, for the respondent.
The Judgment of the Court was delivered by
Bachawat, J.
One Lakhan Lal obtained from the Ramgarh
Raj a settlement in respect of .08 acre of land in Plot No. 439,
Khata No. 125 in village Ramgarh.
It is now common case that
in obtaining this settlement he acted as the benamidar of the
appellant.
The respondent claimed the land on the basis of another settlement from the Ramgarh Raj.
There were proceedings under sec. 144 of the Code of Criminal Procedure at the instance of the respondent against the appellant and Lakhan Lal.
Eventually the respondent and Lakhan Lal agreed to refer the
dispute to the arbitration of one Bateshwar Prasad Singh.
On
May 16, 1951 the arbitrator made his award.
The award was
filed in the court of the Additional Munsif Hazaribagh and the
proceeding under sec. 14 of the Indian Arbitration Act, 1940 was
marked as T.S. No. 160 of 1951.
On November 9, 1953 an
application in the form of a written statement on behalf of Lakhan
Lal was filed setting forth the objections to the award and praying that the award be set aside and the suit be dismissed.
The
appellant who held a special power of attorney from Lakhan Lal
verified and signed the written statement.
On July 1, 1955,
Lakhan Lal died 'and his heirs were substituted in his place in the
proceedings.
On April 30, 1956 the heirs. of Lakhan Lal filed
a written statement adopting the earlier written statement and
stating that the appellant was the real owner and a necessary party.
On May 16, 1956 the appellant filed an application praying that
he f>e joined as a defendant.
By an order dated June 13, 1956
the Munsif dismissed the application.
He observed that only
•
•
836
SUPREME COURf REPORT!i
[!%9]1SCIC
Lakhan Lal and the respondent were parties to the arbitrauon and
the appellant had no /oms stwu/i to be added as a party.
He
added : "Jf that award is enforced and decree passed on its
basis parties concerning the award am to be bound by that and
no body else.
If out of the suit land under award Mr. Ragho
Prasad Gupta is the owner and in possession of 4 decimals out of
8 decimal land and if he was not a party to that award the decree
if allowe<l on the basis of that award in question shall not bind
him."
Thereafter the objections to the award were vigorously
pressed by the heirs of Lakhan Lal.
On December 22, I 956 the
Munsif dismissed the suit and declined to pass a decree in terms
of the award mainly on the ground that Bateshwar Prasad was
disqualified from acting as an arbitrator.
The respondent tiled
an appeal from this decree.
On July 18, 1958 the 1st Additional
Subordinate Judge, Hazaribagh, a)lowed the appeal, dismissed
all the objections ~ind passed a decree in terms of the award.
On
April 9, 1960 the respondent started Execution Case No. 58 of
1960 in the court of the Munsif, Hazaribagh, asking for delivery
of possession of the land in accordance with the award decree.
The Munsif made an order for delivery of possession.
On May
22, 1961 the appellant obstructed the court peon in giving possession of the property.
On June 6, I 961 the respondent filed an
application against the appellant under 0.21 r. 97 of the Code of
Civil Procedure.
On December 18, 1962 the Munsif dismissed
the application.
He observed that as the appellant's prayer for
hcing added as a party to the proceedings in T.S. No .160 of 1951
had been rejected he was not bound by the decree passed against
his benamidar.
The respondent filed a revision petition under
sec. 115 of the Code of Civil Procedure.
On December 17, 1963
the High Court allowed the revision petition, set aside the order
of the Munsif and directed the executing court to deliver possession of the land to the respondent.
The present appeal has been
tiled by the appellant after obtaining special leave from this
Court.
The crucial question in this appeal is whether the respondent
is bound by the decree passed in the previous suit against the
heirs of his benamidar.
In Gur Narayan v. Shea Lal Singh(')
the Judicial Committee held :
B
c
D
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G
"The benamidar has no beneficial interest in the
property or business that stands in his name; he represents. in fact, the real owner, and so far as their relative legal position is concerned he is a mere trustee [or
him .... The bulk of judicial opinion in India is in
H
favour of the proposition that in a proceeding by ,or•
(I) LR. 46 I.A. I.
•
l
-
•
'
A
B
R. P. GUPTA v. s. PODDAR (Bachawat, /.)
8:17
against the benamidar, the person beneficially ~ntitl~
is fully affected by the rules of res judicata. With this
view their Lordships concur. It is open to the latter
to apply to be joined in the action; but whether he is
made a party or not, a proceeding by or against his
representatives in its ultimate result is fully binding on
him.
In a contest between an alleged benarnidar, and
an alleged real owner, other considerations arise with
which their Lordships are not concerned in the present
case."
In view of this decision, it is now well settled that in any litigation with a third party, the benamidar can sufficiently represent
c
the real owner.
The decision in any proceeding brought by or
against the benarnidar will bind the real owner though he is not
joined as a party unless it is shown that the benamidar could not
or did not in fact represent the interest of the real owner in that
proceeding.
Let us examine the facts of the present case. In the courts
D
below it was not disputed that Lakhan Lal fully represented the
appellant in the agreement of reference to arbitration and in the
arbitration proceedings. It was not disputed before us that the
award given by the arbitrator was as much binding upon the
appellant as if the reference to arbitration was made by the appellant himself.
The award was filed in court and the notice of the
E
filing of ilie award was given to ilie appellant and Lakhan Lal
the two parties to the arbitration agreement.
Upon service of tlie
notice, the proceeding for enforcement of the, award under s. 14
of the Indian Arbitration Act commenced.
The appellant was
not a necessary party in ilie proceeding.
As the attorney of
Lakhan Lal, the appellant filed an application for setting aside
F
tlie award within the time prescribed by Article 158 of the Indian
Limitation Act, 1908 and thereafter actively conducted the proceedings.
There can be no doubt that while Lakhan Lal was
alive, he fully represented the appellant. On his death his heirs
were brought on the record. , They adopted his written statement
and stated that the appellant was the real owner and a necessary
party. At this stage the appellant filed an application for being
G
added as a party.
The Munsif dismissed the application observing that the appellant would not be bound by the decree in .the
proceedings.
Now the question whether the respondent would
be bound by the decree was not in issue before the Munsif and'
the expression Of opinion oi:t that question cannot operate as res
judicata.
The Iion-joinder of the appellant as a party did not
H
cause him any prejudice.
All the contentions which could be
advanced on his behalf against the validity of the award were put
foie.vard by Lakhan Lal's heirs and vigorously pressed.
Like
Lakhan Lal, his heirs continued to represent the appellant in the
1 Sup. CT/69-7
•
•
838
SUPREME COURT IU!PORTS
(1969] i S.C.R.
proceedings.
In somewhat similar' circumstances
the Calcutta
High Court held in Prakash Chandra Ghosh v. Mah1"ma Ranjan
Chakravarti( 1 ) that the decree against the heirs of the benamidar
bound the real owner. There, a mortgagee brought a suit on his
mortgage against the sons of· a benamidar a mortgagor and the
application of the real owners to be added as a party in the mortgage suit was rejected with the remark that "By the petitioner•
not being made parties, they will not be prejudiced in any way
in this suit beyond the fact that, if their case be true, they will be
driven to another litigation to fight out their own case."
After
the rejection of the application the heirs of the benamidar contested the suit on behalf of the real owners. On these facts the
coun held that the real owners in possession of the property were
bound by the decree passe<I in the mortgage suit and the sale in
execution of the decree.
The appellant relied on the decision in Mata Prasad v. Ram
Charan Sahu('). In.that case, a suit for sale on a mortgage was
brought against the ostensible purchaser of the mort~aged property.
The defendant pleaded that she was the benam1dar for his
three sons and that the real owners should be brought on the
record as defendant.
But no steps were taken for adding them
as parties.
In a subsequent suit for. possession or the property
brought by her sons, the Court held that the decree in the earlier
suit did not operate as res judicata.
The reason was that some
defences open to her sons were not open to her and the decree
again.st her was based on the finding that she was not the benamidar for her sons and did not represent them.
Some observations
in this decision lend support to the contention that the benamidar
<:eases to represent the real owner as soon as he discloses
his
benami status and pleads that the real owner should be added as
a party to the suit.
In our opinion the contention is unsound.
and we are unable to agree with those broad observations.
It follows that the appellant is bound by the decree passed in
the ear :ier suit.
The decree can be executed against him under
0. 21 r. 35 C.P.C. and he is bound to vacate the property.
The appellant submitted that the High Court had no power
to set aside the Munsifs order under s. 115 of the Code of Civil
Procedure. This point was not taken in the High Court. If we
allow the appellant to raise thLs contention there will be grave
miscarriage of justice.
The award was made in 1951.
The
decree in accordance with the award wa~ passed in 1958.
For
over 16 years the respondent has been depnved of the property
awarded to him.
Had the High Court dismissed the revision
petition on the ground that it had no jurisdiction to interfere with
the Munsif's order, the respondent would have immediately ffled
{I) l.L.R. [1947J(Z)Cal.185.
12) I.LR. 36 All, 446.
A
,
B
c
D
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F
G
11
R. P. GUPTA v. s. PODDAR (Bachawat, !.)
831
A
a suit under 0.21 r. 23 C.P.C. to establish his right to the property.
To that suit the appellant would have had no defence.
He is bound by the decree in the earlier suit and is liable to be
ejected.
The ends of justice require that the appellant ought not
to be pennitted to raise this new contention now. It is therefore
not necessary to decide whether this contention has any merit.
B
The appeal is dismissed with costs.
The appeal is dismissed with costs.
R.K.P.S.
Appeal dismissed .
•
•