1. This is a Letters Patent appeal against the decision of Mr. Justice Shingne, sitting singly, in a suit brought by the plaintiff, to recover by partition a moiety of the plaint property with mesne profits and costs. The Subordinate Judge of Vengurla awarded the plaintiff's claim, and on appeal, this decision was confirmed by the First Class Subordinate Judge of Ratnagiri with appellate powers. There was a second appeal against that decision, which was confirmed by Mr. Justice Shingne, and there is now a Letters Patent appeal against his decision.
2. The facts are simple. There were certain sheri lands in the Malvan taluka which were let out by Government on lease for thirty years. The lands in suit were in the possession of the father of defendants Nos. 1 and 2. The present defendant No. 1 is the appellant. Although the lease was in the name of Anant, a member of another branch of the family, it is now quite clear that the actual lessee was the father of defendants Nos. 1 and 2. On his death, defendants Nos. 1 and 2 became entitled to equal shares in these lands. Defendant No. 2 let his half share of the lands to his brother defendant No. 1. Now defendant No. 2 had mortgaged his share to the present plaintiff, and in execution of a decree against him the present plaintiff had purchased half of defendant No. 2's interest in the equity of redemption. There was a kabulayat in the year 1897 and the plaintiff was obliged to bring various rent suits against defendant No. 1 to recover the income of the half share which defendant No. 2 had mortgaged to him. The kabulayat expired in 1907, but defendant No. 1 did not give possession to defendant No. 2 or to his mortgagee the plaintiff, and there was a suit brought on that account which went up to the High Court. Meanwhile in 1913, the thirty years' lease granted by Government expired, and under the orders of Government the, revenue authorities held inquries to see to whom a new lease under the ordinary occupancy tenure could be granted. At the revenue inquiry defendant No. 1 appeared, as did one or two other claimants including the plaintiff, and ultimately the revenue authorities decided to grant the occupancy tenancy to defendant No. 1. That was in 1914 and the present suit was brought by the plaintiff as representing the interest of Atmaram, defendant No. 2, who is the brother of defendant No. 1, to recover possession of his half share in the property.
3. This suit has been contested on every possible ground, but all the Courts up to the High Court have found against the appellant defendant No. 1. In this Letters Patent appeal one or two issues have been introduced, which, so far as I can see, were not argued before in spite of the lengthy litigation which has already proceeded with regard to this property. Before Mr. Justice Shingne (I quote from paragraph 7 of his judgment) the points raised were (1) that the patta of 1883 was in the name of Dadaji, the father of defendant No. 3, and that Raghunath, the father of defendants Nos. 1 and 2, and after him defendant No. 1 were trespassers on suit lands, and therefore, Section 90 of the Indian Trusts Act will not apply ; (2) that failing on this point, it was contended that defendant No. 1 was holding the moiety in suit lands as a tenant-on-sufferance and was, therefore, in adverse possession, and so Section 90 will not apply ; (3) that failing on these points, it was contended that defendant No. 1 will at the most be a tenant-in-common of suit lands and cannot be said to be a trustee for his co-sharer, and therefore Section 90 will not apply.
4. Now the first of these points has been expressly given up by the learned Counsel for the appellant. But he has slightly shifted his ground and has taken a point that after the expiration of the patta from Government defendant No. 1 is a tenant-on-sufferance holding the lands for himself as a lessee from Government. The reason why the point as originally framed is given up is probably that it has been found by all the Courts as a fact that in the lease the real lessee was Raghunath, the father of defendants Nos. 1 and 2, and that defendant No. 1, the appellant, has throughout been treated as a lessee from Government. It was never his case anywhere that he was a trespasser as against Government. That point, therefore, as put in the argument before Mr. Justice Shingne, has not been taken now.
5. But it was contended that in the interval between the expiry of the patta of 1883 and the grant of the new lease, the possession of defendant No. 1 was not that of a lessee from Government. That argument is entirely untenable. There was, as a matter of fact, no such interval. The exact date when the patta of 1883 expired is not on the record, but the order of Government for renewing the lease was in 1912. The revenue inquiry began in 1913 and the order giving out the lands on occupancy tenure to the actual occupant was issued in 1914. There was no question of defendant No. 1 having been in possession during the period in any other capacity than that of a lessee from Government. On the contrary, in the proceedings before the Revenue Officer (Exh. 52, p. 26) in the column headed 'The right claimed, viz.: whether as lessee, alienee or sub-sharer of tenant' Defendant No. 1 Dharma Raghunath is shown as the 'heir of the lessee'. No question, therefore, of defendant No. 1 deriving any title other than as lessee from Government arises. This disposes of the first point even as it is put now.
6. The second point argued by the learned Counsel for the appellant is this. After the expiry of the Kabulayat of 1897 the possession of defendant No. 1 was adverse to defendant No. 2. That kabulayat was passed by defendant No. 1 to defendant No. 2 for ten years expiring in 1907. It is contended that when the kabulayat expired, inasmuch as under it defendant No. 1 was bound to give possession to defendant No. 2 his brother, or the plaintiff his alienee, as he failed to do so, his possession from 1907 was adverse to Atmaram defendant No. 2 and the plaintiff who claims under defendant No. 2. Now till 1897, defendant No. 2 was in actual occupation along with defendant No. 1. In 1897 defendant No. 1 was put into possession of defendant No. 2's share on payment of Rs. 90 a year by a kabulayat, Exh.73 at p. 34. The parties were brothers and co-sharers each holding a half-share in the property. By that rent-note defendant No. 1 contracted to hold the property for ten years and thereafter to make over possession of the joint share of defendant No. 2 to him. This is not an ordinary case between a landlord and a tenant, but between two co-sharers one of whom hands over his share of the property to his brother. Although the relation of landlord and tenant between defendant No. 1 and defendant No. 2 ceased from 1907, their relation as co-owners of the property in question continued, and it has not been shown that there was any adverse assertion of title by defendant No. 1, by which defendant No. 2 was ousted. The Article applicable in such a case would be Article 144 as laid down in Ichalal v. Nago. (1920) 23 Bom. L.R. 60 But in any case twelve years' period of limitation did not expire before the plaintiff, who represents the interest of defendant No. 2, filed a suit in 1912. Now before that suit was filed the original lease or patta of 1883 from Government expired and a fresh grant had been made by Government in favour of defendant No. 1, and the High Court pointed out in its judgment that it was not possible in that case to determine the rights of the parties which arose under the new lease. No question, therefore, of adverse possession arises. The twelve years' adverse possession did not become perfect until 1919, The plaintiff filed a suit in 1912 and in the following years the possession of the parties as regards the lands is altogether changed by the lease originally granted by Government having expired and a new grant being made, and the new lease by Government is expressly made subject to the decision of the civil Court Therefore, I agree with the view of Mr. Justice Shingne in paragraph 9 of his judgment that this is not a case of an ordinary landlord and tenant but a case between co-owners and that there is no question of the title of Atmaram being extinguished by adverse possession.
7. Then as regards the third contention, which is the main contention taken in this case, it is contended that Section 90 of the Indian Trusts Act does, not apply because defendant No. 1 is not a trustee for his co-sharer and that, he is, at the most, a tenant-in-common of the suit lands. I have already dealt with the contention, which I do not think is very seriously raised, that defendant No. 1 was not a tenant-in-common with defendant No. 2 at the date of the new grant in 1914. Until the expiry of the lease granted by Government undoubtedly he was a tenant-in-common or a joint tenant according as the parties were joint or separate of the lands which had been leased to the family by Government. It is quite clear from the Government Resolution, Exh. 136, that the intention of Government was to give preference in granting occupancy rights to the lessees who were already in possession. We find in that Resolution that the Collector was authorised to give out the sheri lands on the restricted tenure or on the full survey tenure to such lessees, alienees, or their sub-sharers, as actually cultivate the lands, and I have already pointed out that in the revenue proceedings at p. 26 that defendant No. 1, the present appellant, claims as ' heir of the lessee ' and is so described in the papers.
8. Now on this point it is necessary to give a little history which will be found in extenso in the judgment of Mr. Justice Shingne. It appears that there was partition between defendant No. 1 and defendant No. 2. There was also a suit pending, by the plaintiff against the defendants, in 1902 in which a compromise was arrived at and the compromise was that a partition should be effected of the family property at Varad and Kalse and one of the terms was that the property in suit now which is at Kalse should be given to defendant No. 1 and defendant No. 2's share of the Kalse property should be placed in the plaintiff's possession as the auction purchaser, on the expiry of the lease. That compromise application is Exh. 79 at p. 36. In that it is distinctly mentioned:
The property mentioned in the rent-note is to be continued with defendant No. 1 for the period mentioned therein on payment of fixed rent as given in the same. After the expiry of the fixed period the possession of Atmaram's share is to be given to the plaintiff as Atmaram's auction-purchaser.
9. In addition to this there were two partition deeds executed. One is Exh. 65 and the other Exh. 102. Exhibit 65 refers to the property at Varad which went to defendant No. 2 and Exh. 102 refers to the property in dispute. Now we are not directly concerned with Exh. 65. But Exh. 102, executed by Atmaram defendant No. 2, says at p. 45
Thikan Juva (that is the land in dispute) and his house (half share) is continuing with, Keshav Gunaji Kondkar (present -plaintiff) and then he goes on to say that there are houses and a shed (with which we are not concerned) and they have been given to defendant No. 1.
11. I read this as a clear indication that defendant No. 2 did not give up his half share in the lands but that they continued to be with his mortgagee, the present plaintiff.
12. Now at the inquiry which was held before the revenue authorities in 1914 when the question of giving out the lands on ordinary occupancy tenure arose, the claimants who appeared were, the present defendant No. 1, the present plaintiff and two other persons. Another person who was an alienee from another member of the family claimed the lands. Defendant No. 2 did not appear because he had mortgaged his whole interest in the land to the plaintiff. Now in the course of the inquiry the present defendant No. 1 produced the deed Exh. 65 which refers to Varad property but did not produce Exh. 102 which refers to this property. Exhibit 102 shows that defendant No. 2 has still an interest in it. He also made a statement Exh. 77 before the District Deputy Collector in which he says as follows:
In this partition deed the sheri property on thirty years' lease situated at Kalse, Thikan Juve by name, standing in my name as vahiwatdar is not partitioned and according to this partition deed the parties have taken possession. Now Atmaram Raghunath has no right over the property standing in the name of Dharma Raghunath. Similarly Dharma Raghunath has no interest in the property of Atmaram. The land at Kalse being Sheri land, Atmaram did not want it and therefore it was not partitioned.
13. Defendant No. 1 suppressed the fact that the right of defendant No. 2 in this property was still existing, and the statement that defendant No. 2 did not want the property is, so far as I can see from the record, a falsehood. Acting on this information the revenue authorities brushed aside the claim of the plaintiff, alienee of Atmaram, and gave the lands to defendant No. 1.
14. Under Section 90 of the Indian Trusts Act-
Where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained....
15. Now it has been contended by the learned Counsel for the appellant that we should be guided in the case by the English cases which were quoted before Mr. Justice Shingne : Kennedy v. De Trafford  A.C. 180 and Biss, In re : Biss v. Biss  2 Ch. 40 But it has been held on several occasions by the Calcutta High Court that in this country we are to be guided by the Indian Trusts Act and not by the English cases on the subject and the same cases have been quoted here that were quoted before Mr. Justice Shingne, viz., Faizur Rahman v. Maimuna Khatum (1913) 17 C.W.N. 1233 in which Doorga Singh v. Sheo Pershad Singh I.L.R. (1889) Cal. 194 is referred to. At that time it was not dissented from although it was questioned. Later on the same Judge, Sir Lawrence Jenkins, who was then a member of the Privy Council, in the case of Deonandan Prashad v. Janki Singh has disapproved the ruling in Doorga Singh v. Sheo Pershad Singh, and has approved the ruling in Faizur Rahman v. Maimuna Khatum, and there are certain remarks at p. 34 which are very apposite to the present case. While referring to Doorga Singh v. Sheo Pershad Singh, the judgment says (p. 34 ):
It failed to pay due regard to the relative position of co-owners in respect of the payment of revenue and to the need of demanding from each such measure of candid dealing and good faith as would ensure that a sharer would not be tempted to make a deliberate default with a view to ousting his co-sharers and appropriating to himself their common property.
16. The same remarks, I think, will apply to the case of a co-owner of the occupancy tenancy, who was examined in the revenue inquiry and who has concealed the fact of the existence of a certain document showing defendant No. 2's ownership of the lands in suit as still subsisting and was prepared to make a false statement that the other co-owner had abandoned his claim to this land. Now it has been argued by the learned Counsel for the appellant in his reply that the plaintiff was a party to the revenue inquiry and that he was aware of these facts and it was open to him to put his case before the revenue authorities by producing Exh. 102 or by producing Atmaram and so establishing his case. But it is no answer, in my opinion, to say that because one party does not put forward his case as well as he should have done before the Court, therefore the other party is justified in making a false statement and suppressing a document. It was practically conceded by the learned Counsel for the appellant that if there was a case of a fraud the ruling in Doorga Singh v. Sheo Pershad Singh operates, and it seems that there has been a fraud in this case and that view has been upheld by Mr. Justice Shingne in paragraph 19 of his judgment where he holds;
All these facts and circumstances are, in my opinion, sufficient to prove that defendant No. 1 by availing himself of his position as a co-owner in actual possession gained the occupancy right relating to the suit lands in his own name to the derogation of the rights of the plaintiff and defendant No. 2 and must be held to hold the same for the benefit of himself and the plaintiff and defendant No. 2.
17. It has been argued that Government had a perfect right to give the lands to whom they liked and therefore it must be taken that Government decided to give them to defendant No. 1 and defendant No. 2 or rather his representative the alienee. Plaintiff has no ground for objecting to the choice which Government had made. But it will be seen from the Government Resolution to which I have already referred and from the orders of the revenue officers in the revenue inquiry that the lands were given to defendant No. 1 because he was in exclusive occupation. The reason why he was in occupation was. that his brother defendant No. 2 had executed a kabulayat in his favour and under that kabulayat he had undertaken to restore possession to defendant No. 2 or his representative the plaintiff on the expiry of the lease in 1907, but he refused to do so in spite of the compromise referred to above. And owing to the circumstances alluded to above and the approaching expiry of the Government lease, the question between him and Atmaram had not been settled, and therefore he was not entitled to exclusive possession at the time when the lands were granted to him as considered by the revenue authorities. In these circumstances there is no doubt that defendants Nos. 1 and 2 at the date of the grant by Government to defendant No. 1 in 1914 were co-owners of these lands and that defendant No. 1 made use of his possession to put forward his own claim and by suppressing evidence to cause the claim of the plaintiff as the representative of defendant No, 2 to be overlooked in the revenue proceedings. It is stated by the Mamlatdar (at p. 27 of the paper book) that the kabulayat, etc., leading to the establishment of Atmaram's share were all purposely framed documents and that they were not true. That is a finding presumably arrived at on an incorrect representation of the facts made by defendant No. 1 to the revenue authorities and is incorrect. In these circumstances, I have not the least doubt that the view taken by Mr. Justice Shingne is right that Section 90 of the Indian Trusts Act operates inasmuch as the present appellant has not got the beneficial interest therein and must be held to hold the same for the benefit of the plaintiff having such interest.
18. One more point has been taken, and that is, that the lower Court had given a direction enabling defendant No. 1 to move Government not to recognise the plaintiff or defendant No. 2. That order was deleted by Mr. Justice Shingne, and in view of the fact that the orders of the revenue authorities were expressly made subject to the decision of the civil Court on the rights of the other claimants, including the present plaintiff, and those rights have now been decided, I fail to see why the Court should give assistance to defendant No. 1 in further re-agitating the matter before the revenue authorities. I agree, therefore, that that clause should be deleted.
The result is that I agree with the view taken by Mr. Justice Shingne and am of opinion that the appeal should be dismissed with costs.
N.J. Wadia, J.
19. I agree. It is, in my opinion, clear, looking to the terms of the Government Resolution of 1912, under which a fresh grant to the appellant was made in 1914, that the lands were granted to him as the heir of the original lessee and because he was in possession. The contention now raised that in 1913 the possession of appellant No. 1 was that of a trespasser and not that of a lessee from Government is one, which, in my opinion, is untenable and in entire contradiction to defendant No, 1's previous statements. The proceedings before the revenue authorities in 1913 show that defendant No. 1 claimed the lands then on the ground that he was the heir of the original lessee. Reading the order of the Deputy Collector it seems to me that if defendant No. 1 had then contended that he claimed the land not because he was the representative of the family of the original lessee but because he was in possession adversely to the members of the family as a trespasser, he would never have got the grant. The Resolution of Government authorised the Collector to give out the sheri lands to such lessees, alienees or their sub-sharers as actually cultivated the land, and to tenants who were found to have permanent rights of tenancy. That they did not contemplate that the fact of actual possession should be the sole consideration to be taken into account in making the grant, is clear from the second paragraph of the Resolution which provided that:
Where the land is not in the actual cultivation and occupation of any of the persons-lessees, alienees or their sub-sharers-the survey occupancy should be given to the person whether lessee, alienee, co-sharer, sub-sharer or permanent tenant from whom the tenant-at-will holds the lands and to whom he pays the rent.
20. There is, therefore, no doubt in my mind that defendant No. 1 got the lands because he claimed to be the heir of the original lessee and to be solely in possession. From the papers it appears that up to 1897 the defendant Atmaram, through whom the plaintiff claims, was actually in possession of a half share in the lands. In 1897 he leased this half share to defendant No. 2. Subsequent to this lease he mortgaged his share to the plaintiff in 1899, and in 1901 the plaintiff acquired a half of this mortgaged portion by purchase. Till the termination of the lease in 1907 the plaintiff had been recovering the rent for his half share from defendant No. 1 under the terms of the compromise application Exh. 79 to which defendant No. 1 was a party, and which was put in in suit No. 66 of 1902, which had been filed by the plaintiff against defendant No. 1 for arrears of rent. Defendant No. 1 had agreed to hand over possession of Atmaram's half share to the plaintiff as Atmaram's auction-purchaser. In the partition deed Exh. 102 which was passed a fortnight after the compromise application, and in accordance with its terms, it was stated that Atmaram's share in the suit lands was with the plaintiff. On the expiry of the period of the lease in 1907 defendant No. 1 refused to hand over possession. But the position of the plaintiff as against defendant No. 1 was not merely that of a landlord but also that of a co-owner; and though from 1907 to 1913 defendant No. 1 was no longer a tenant of the plaintiff, and was in adverse possession, he continued to be a co-owner with the plaintiff. There is no evidence to show that his possession as a co-owner during this period was adverse. In any case, even if the possession was adverse, it had not ripened into a full title. In 1913, therefore, the plaintiff and defendant No. 1 appeared before the revenue authorities as co-owners. The Deputy Collector's order shows that the grant of the lands to defendant No. 1 in 1914 was not based solely on the ground that he happened to be in actual possession. An inquiry was made as to the rights of the claimants including the plaintiff, and the plaintiff's claim appears to have been rejected on the ground that he had not established his title, and was not in actual possession. But the appellant's possession at that time of the share of the plaintiff was a wrongful one and it does not appear that he anywhere claimed that in respect of the lease under which he had held the land from the plaintiff for ten years, his possession as against the plaintiff was a rightful one. Judging by the recommendations of the Mamlatdar and the order finally passed by the Deputy Collector, it would appear that defendant No. 1 repudiated the lease and suggested that it was a bogus document created only to support the plaintiff's claim. Having thus remained in wrongful possession of the land and having himself agreed that suit No. 228 of 1912 which the plaintiff had filed to get possession should be kept pending the decision of the revenue authorities, he then contended before the revenue authorities' that the plaintiff had no title to the lands at all, and in support of this contention he clearly put forward a fraudulent claim. His statement before the revenue authorities that the suit lands were not included in the partition between him and his brother Atmaram in 1903 because Atmaram did not want any share in these lands, was clearly false. Exhibit 102, which was passed on the same day as the partition deed, Exh. 65, which defendant No.1 produced before the revenue authorities, shows that the property at Kalse, that is the suit property, was included in the partition between the two brothers. In that partition deed the house standing on the suit lands was given to defendant No. 1, while the half share of Atmaram in the suit lands was mentioned as 'continuing with Keshav Gunaji Kondkar'. The order of the Deputy Collector shows clearly that one of the principal grounds which led to the decision in favour of defendant No. 1 was the fact that in the partition deed no mention was made of this sheri land. Defendant No. 1, to whom Exh. 102 had been passed, and in whose possession it was, had not produced it also before the revenue authorities. It is clear that the order of the Deputy Collector in defendant No. 1's favour was due to defendant No. 1's deliberate suppression of the partition deed Exh. 102, and to his false statement that Atmaram had refused his share in the suit lands. The fact that the plaintiff was also present before the revenue authorities to put forward his own case does not justify the defendant's action in deliberately suppressing the documentary evidence which was in his possession, and deliberately making a false statement. It was a deliberate fraud practised by him on the revenue authorities. His possession at the time as against the plaintiff was that of a co-owner and it is clear on the facts that as a co-owner he gained an advantage in derogation of the rights of the other co-owner, the plaintiff, and he must, therefore, be considered to hold the grant which he obtained from the revenue authorities for the benefit of the plaintiff. The case is clearly governed by Sections 90 and 94 of the Indian Trusts Act. The order of the Deputy Collector, dated March 21, 1914, made it clear that the grant by the revenue authorities to defendant No. 1 was without prejudice to any rights which the plaintiff might establish in the civil Court. The revenue authorities did not think it necessary that they should be given a further opportunity of reconsidering the position after the civil litigation had been decided. In the circumstances I consider that the deletion of Clause 3A from the decree of the trial Court is justified.
21. I agree that the appeal should be dismissed with costs.