1. 'Touzi' No. 2717/3 of Cuttack Collectorate, bearing a 'Sadarzama' of Rs. 2, 701/3/-, originally belonged to Gajarajpur Choudhuries represented by defendants 3 to 8 in this litigation. In that 'touzi' were included two villages known as Korkar and Erada bearing a 'Sadarzama' of Rs. 846/-. The said two villages had been previously mortgaged by the Choudhuries with Sri M.S. Rao, an Advocate of Cuttack. On 2-3-40 the Choudhuries registred a 'Kabala' (Ext. 6-a) purporting to convey their-entire interest in the said two villages in favour of the plaintiff for a consideration of Rs. 1,205/--On the same day the said vendors registered another sale deed (Ext. 6) transferring to the plaintiff for a sum of Rs. 975/- their right to recover arrear rental in the said two 'mouzas' In the second sale-deed (Ext. 6) it was stated that the vendors had transferred their proprietary interest in the two villages to the plaintiff & that they were, therefore, transferring their right to recover arrear rental from the tenants of the villages in favour of the new proprietor.
On 5-3-40 the entire consideration of the second 'Kabala' (Rs. 975/-) was received by defendant 3 on behalf of the Choudhuries and the original 'Kabala' (Ext. 6) was handed over to the plaintiff along with a receipt Ext. 1. The original of the main 'Kabala' (Ext. 6-a) relating to the transfer of the proprietary interest in the two villages, however, remained with the vendors as some differences arose between the parties regarding the procedure to be adopted for payment of the money to the mortgagee, namely, Sri M.S. Rao, before obtaining delivery of the document. On 15-6-1940 a notice was issued by the Advocate of the Choudhuries calling upon the plaintiff to pay the entire consideration money of the 'Kabala' within seven days. The plaintiff also sent a reply notice through her Advocate (Ext, 5) on 31-8-40 expressing her readiness and willingness to pay, the consideration to the mortgagee and obtain custody of the document.
There was exchange of telegram and letters between the parties on 3-8-40, and 5-8-40. On5-8-40 the Choudhuries executed a 'Nadavi' deed (Ext. B) cancelling the previous sale-deed executed by them in favour of the plaintiff and on the same day executed another sale-deed (Ext. A) conveying their proprietary interest in the two villages to defendant 1. This led to a dispute between the plaintiff and defendant 1 as to whose title to the villages should prevail. As is to be expected, the dispute was first fought in the mutation proceedings before the Collector under the Bengal Land Registration Act.
Defendant 1, however, succeeded in getting his name mutated on 29-10-41. He paid his quota of the Government revenue; but his co-sharers in the 'touzi' namely, the Choudhuries (defendants 3 to 8) defaulted in payment of their quota and on 13-3-42 'touzi' No. 2717/3 was put up for revenue sale for arrears of revenue and purchased ,by defendant 2, Dewan Bahadur Lakshmidhar Mohanty, who is a senior Advocate of Cuttack Bar. On 13-10-42 he conveyed the proprietary interest in the two villages in favour of defendant 1, Subsequently, in December 1942 and January 1943 he conveyed other portions of the said 'touzi' in favour of defendants 3 to 8 and also in favour of de-fendants 10 and 11 retaining a small portion of the 'touzi' for himself.
2. The plaintiff's case was that the title to the two 'mouzas', namely, Korkar and Erada had been completely transferred to her by the Choudhuries as soon as the first 'Kabala' (Ext.6-a) was registered on 2-3-40. The Choudhuries had, therefore, no right to cancel the 'Kabala' and re-transfer the said two villages in favour of defendant 1 by their second 'Kabala' (Ext. A) and that no title passed by that 'Kabala'. The plaintiff further urged that defendant 2 entered into a fraudulent conspiracy with defendant 1 and the Choudhuries for the purpose of extinguishing the rights of the plaintiff and that in pursuance of this fraud there was a deliberate default in payment of Government revenue by defendants 3 to 8 and that the purchase by defendant 2 in the revenue sale was 'benami' on behalf of defendant 1 himself. She, therefore, claimed that she was entitled to a reconveyance of the disputed property by defendant 1.
Though Section 90, Trusts Act, was not expressly mentioned in the plaint it appears from a fair reading of paras 13 and 16 of the plaint that the plaintiff's case all along was that defendant 1 was in the position of a trustee of the plaintiff and inasmuch as he gained an advantage by availing himself of his position as that trustee he should reconvey the property to the plaintiff by way of equitable relief. The suit was not brought for the purpose of annulling the revenue sale under Section 33, Bengal Land Revenue Sales Act (Act 11 of 1859) and there was not even an allegation that there was any fraud in publishing and conducting the sale or else that the processes were fraudulently suppressed.
It appears from the judgment of the trial Court that this position was not disputed by the learned Advocate for the plaintiff who clearly stated before the trial Court that hedid not want the revenue sale to be set aside but only prayed for a decree for reconveyance of the suit property in favour of the plaintiff by defendant 1, No relief was asked for either against defendant 2 or against the other defendants in whose favour portions of the 'touzi' had been transferred by defendant 2 after his purchase in the revenue sale. Consequently, the only contesting defendant was defendant 1.
3. The trial Court (2nd Munsif of Cuttack) and the lower appellate Court (Addl. Subordi-nate Judge, Cuttack) both held that the title to the suit property passed to the plaintiff by virtue of the first 'Kabala' (Ext. 6-a) dated 2-3-40 and that it was not the intention of the parties that the title should pass only after payment of the consideration of the 'Kabala'. But they concurrently held that the revenue sale and purchase of the 'touzi' by defendant 2 were brought about in pursuance of a fraudulent conspiracy on the part of defendants 1 and 2 and the Choudhuries (defendants 3 to 8) with a view to extinguish the plaintiff's right in the suit property and that the equitable principles of Section 90, Trusts Act, would apply to the present case.
The main motive for such a fraudulent con-spiracy was said to be the bitter enmity between the plaintiff's husband on the one hand and defendant 2 on the other in an adoption suit which was then pending. Defendant 1 had deposed on behalf of defendant 2 in that adoption suit and the Courts accepted the-plaintiff's evidence to the effect that defendant 1 was an intimate friend and practically a tool in the hands of defendant 2, one of the senior Advocates of Cuttack Bar. Defendant 1 has preferred this second appeal against the concurrent decisions of the two Courts.
4. Two important questions arise for con-sideration in this second appeal.
(i) Did the plaintiff acquire title to the suit property by virtue of her 'Kabala' (Ext, 6-a) dated 2-3-40?
(ii) Is the plaintiff entitled to any relief under the equitable principles of Section 90, Trusts Act, on the ground that the revenue sale was brought about by fraud practised by a co-sharer proprietor?
5. As regards the first question, I think both the lower Courts have taken the correct view. Doubtless, the 'Kabala' was registered on 2-3-40; but the original document remained in the custody of the vendors and admittedly due/to some dispute regarding mode of payment of the mortgage dues of Sri M. S. Rao the consideration of the 'Kabala' was not paid? at all. The main question for decision was whether the intention of the parties was that title to the disputed property should not pass until payment of the consideration or else whether the intention was that title should pass on the registration of the document irrespective of the date of payment of the consideration.
As pointed out in -- 'Pritam Singh v. Jagannath', AIR 1947 Pat 1 (A), reviewing the previous decisions on the subject, the intention of the parties should primarily be gathered from the sale-deed itself. But where the terms of the sale-deed are not clear and decisive the surrounding circumstances and the conduct of the parties may be looked into. On a scrutiny of the sale-deed it would appear that there isnothing in it from which it can be inferred either expressly or by implication that the intention of the parties was that title should remain with the vendors until the passing of the consideration. The relevant portion may be translated as follows :
'But being in need of money to make part payment of the mortgage dues of Sri Babu M. Subba Rao we of our own accord and free will sell the 'zamindari' consisting of the undermentioned villages to the above-mentioned vendee for Rs, 1,205/- as the consideration for the said 'zamindari' and we have counted the said money and received it from the vendee out of her 'Stridhan' (which she got from her mother) through her, father in one instalment and acknowledge that 'from this day' the vendee will be entitled to possess all rights including land, water, trees, stones, property underground, idols and temples, 'dhanda', 'sirepa' well and 'bamphi' tank, river, 'nala', 'machha-dia', 'banakar', 'phalakar', gardens, etc., all rights and after her sons and grand-sons for all time to come and they will deposit the 'Sadarzama' of the property sold in the Government Treasury and get recorded in the Land Registration Department her own name in B and D Registers and deposit the revenue and procure challans according to rules and will do anything she likes regarding the said 'zamindari' and we or our successors will have no claim or interest whatsoever and if we make any such claim that will be rejected.'
It expressly says that from the date of the execution of the document the vendee shall be entitled to all the rights in the suit property. Doubtless it was stated in the document that the entire consideration money also passed on that day. It is admitted by both parties that this portion of the recital in the document is incorrect. But from this circumstance alone it cannot be inferred that the intention of the parties was that passing of the consideration was a condition precedent to the transfer of the title. On the very same day another document (Ext. 6) was registered by the vendors transferring their right to realise arrear rental in favour of the plaintiff. In that document it was expressly mentioned that the proprietary interest in the villages had been transferred to the plaintiff.
The original of that sale-deed was delivered to the plaintiff on 5-3-40. If the intention of the parties was that the proprietary interest would not pass to the vendee until the date of payment of the consideration it is inexplicable how they would transfer their right to recover arrear rental in favour of the plaintiff on the same day and also deliver custody of that sale-deed on 5-3-40. Doubtless the position would have been slightly different if the transfer of the right to recover arrear rental by Ext. 6 was made in favour of a third party like the transfer of an ordinary money claim. But in Ext. 6 as well as in the receipt (Ext. 1) it was clearly stated that the right to recover arrear rental was being transferred to the plaintiff as proprietor of the villages.
Moreover, even in the notice (Ext. 3) dated 15-6-40 sent by the lawyer of the Choudhuries to the plaintiff it was not stated that the title to the property remained with the vendors dueto the failure of the plaintiff to pay the con-sideration. I would, therefore, affirm the view taken by the two lower Courts that payment of the consideration was not a condition precedent to the transfer of the title and that the plaintiff obtained good title to the disputed property by virtue of her first 'Kabala' (Ext. 6-a) dated 2-3-40. The 'Kafaala' in favour of defendant 1 (Ext. A) being of a subsequent date cannot prevail against the earlier 'Kabala',
6. The second question, however, presents-considerable difficulty. Certain broad facts admit of no doubt. At all relevant times, the plaintiff's husband Sri Bhagabat Charan. Mohanty was on terms of bitter enmity with, defendant 2 Dewan Bahadur Lakshmidhar Mohanty. Bhagabat Charan Mohanty's own brother Narsingh was the son-in-law of Dewan Bahadur Lakshmidhar Mohanty. After Narsingh's death a son of the Dewan Bahadur claimed to be his adopted son. This adoption was challenged by Bhagabat Charan Mohanty and during the years 1940-42 the adoption suit was being bitterly fought out. Defendant 1 admits that he deposed on behalf of defenddant 2 in that adoption suit.
It is proved by Sri M. S. Rao himself (D.. W. 2) that Lakshmidhar Babu (defendant .2) approached him sometime after the execution of the first 'Kabala' by the Choudhuries in favour of the plaintiff suggesting that a sale-deed may be executed in respect of the same property in favour of defendant 1. On behalf of the plaintiff it was urged that this conduct of defendant 2 indicated unusual interest on his part in favour of defendant 1 with the object of harassing the plaintiff's husband. This circumstance, however, is capable of an innocent explanation. Defendant 2 is an Advocate-and if approached by defendant 1 'bona fide' for the purchase of the two villages he might consult the previous mortgagee on the subject
Doubtless his conduct in selling the same property to defendant 1 within seven months of the revenue sale lends some support to the view that the purchase in the revenue sale by defendant 2 was perhaps pre-arranged between him and defendant 1. He did not get his name mutated in the land registration records after his purchase in the revenue sale. Defendant 1 is the 'Mukaddam' of the two villages and if the plaintiff became the proprietor of the villages, it may be reasonably anticipated that her husband would exert pressure on defendant 1 either to give up supporting defendant 2 in the adoption suit, or to harass him for having taken the side of defendant 2 in the adoption suit. There is thus a strong motive for the 'benami' purchase so as to extinguish the plaintiff's right.
7. Both the lower Courts relied to a great extent on a letter Ext. 7 written by defend-dant 2 to one Pranadhan Babu on 16-11-42 in which he disclosed his intention as to what he proposed to do with the property purchased in the revenue sale. That letter was written eight months after the revenue sale (13-3-42) and more than a month after the sale-deed (Ext. A-1) was executed by him in favour of defendant 1 transferring the disputed property to the latter. The letter deals mainly with his proposal to transfer the remaining villages in the said 'touzi' to the Choudhuries (defendants 3 to 8) and one Tripathy. The letter opens with a quotation from a telegram sent by defendant 1 to defendant 2 containing his suggestions for the transfer of the remaining portions of the 'touzi' which defend-ant 2 accepted by telegram.
Then he informs Pranadhan Babu that he has no intention to cause any harm to the Choudhuries, that he was anxious for their welfare and that he (defendant 2) was bound by the word given by Misra (meaning defendant 1). He further admits that for the sakeof Misra he (defendant 2) got entangled with the property and that Bhagabat (meaning the husband of the plaintiff) was trying to keep defendant 1 under his control. There is also an admission that the revenue sale was brought about by fraud 'sadajantra' though it is not clearly stated as to who were the perpetrators of that fraud. The suggestion, however, in the letter seems to be that defendants 3 to 8 were mainly responsible for the fraudulent sale.
8. The admissibility of this document againstdefendant 1 was strenuously contested both in the lower Courts and before us. The writer of the document was examined as a witness (P.W. 6) by the plaintiff. In his examination-in-chief he admitted that he wrote that letterbut he was not specifically asked as to whether he admitted the contents of that letter to be true. When cross-examined by defendant 1, however, he made some statements in his favour denying the suggestion that his purchase of the property in the revenue sale was 'benami' for defendant 1. He was cross-examined by the plaintiff under Section 154, Evidence Act, but both parties scrupulously refrained from putting any question to him regarding the truth of the contents of that letter.
Mr. Misra on behalf of the appellant urged that the answers given by this witness during his cross-examination by defendant 1 amounted, in substance, to a contradiction of the contents of the letter and that consequently his attention should have been specifically drawn to those contradictions as required by Section 145, Evidence Act, before the contents of the letter could be used against him. In my opinion Section 145, Evidence Act, has no application to the present case. There is no question of contra-dicting defendant 2 (P.W. 6) by any previous statement made by him in writing. The letter was proved by him in his examination-in-chief and at that time there was no question of any contradiction because he had not stated anything in evidence contradictory to the contents of the letter. Similarly, during his cross-examination by defendant 1 though he made certain admissions in his favour he did not make any statement which would amount to a contradiction of the contents of the letter.
9. As the writer of the letter (Ext. 7) has appeared as a witness in Court, the, contents of that letter would amount to a previous statement of a witness and can also be used for the purpose of corroborating his testimony in Court under Section 157, Evidence Act. But it cannot be used as substantive evidence and for that purpose one must scrutinise the nature of the evidence given in Court by the writer himself. Doubtless if he had said in a general way in his examination-in-chief that the contents of the letter were true there may be substantive evidence regarding its contents andit would then be open to the other side to discredit his evidence during cross-examination. I But, for reasons best known to the parties the plaintiff's lawyer would not venture to specifically ask this witness (P.W. 6) either in his examination-in-chief or during his cross-exami-nation under Section 154, Evidence Act, as to whether the contents of the letter were true or not.
Consequently, the contents of Ext. 7 have not been proved as substantive evidence in Court except the first part which is a quotation from a telegram received by P.W. S from defendant 1 himself. The contents of that telegram have been practically admitted not only by P.W. 6 but also by the sender of the telegram, namely, defendant 1 (D. W. 3) and they may, therefore, be used as evid-ence against the defendants. But the latter portion of the letter in which defendant 2 admitted that he entangled himself with this property 'for the sake of defendant 1 and that the auction sale was brought about by 'sadajantra' (fraud) has not been admitted by him in Court and cannot be used as substantive evidence unless it can be brought within the scope of some other section of the Evidence Act.
10. It was then urged that the aforesaid portion of Ext. 7 would amount to an admission against interest and would thus be admissible under Section 21, Evidence Act. Doubtless it is admissible against defendant 2 himself; but as he is a mere 'pro forma' defendant in this case, evidence as against him does not materially affect the case. Its admissibility against defendant 1 (who is the only contesting defendant) depends on whether at the time of making the aforesaid admission defendant 2 had any interest in the disputed property or else whether he was acting as an agent of defendant 1. The letter was written on 16-11-42 more than a month after defendant 2 had sold the disputed property to defendant 1. He had, therefore, no subsisting interest in it at the time of making the admission.
It cannot also be seriously urged that defen-dant 2 was acting as an agent on behalf of defendant 1 when he wrote the letter Ext. 7. Doubtless the telegram quoted in the first part of the letter shows that there was some under-standing between the two to the effect that the property purchased in the revenue sale should be resold to various persons; but so far as the disputed property was concerned it had already been sold to defendant 1 and the contents of the telegram do not justify the inference that defendant 1 either expressly or by implication authorised defendant 2 to make any admission against his interest in respect of the disputed property.
11. It was then urged that the contents of Ext. 7 would, in any case, be admissible under Section 10, Evidence Act, inasmuch as the conspiracy as alleged by the plaintiff was entered into by defendant 2 with defendant 1 and defendants 3 to 8 for the purpose of bringing about the revenue sale so as to extinguish the plaintiff's rights without in any way jeopardising the rights of defendant 1 and defendants 3 to 8. It was urged that the common intention of the conspirators was not completely achieved until reconveyance of thedisputed property to defendant 1 by defendant 2 and the further reconveyance of most of the remaining property to defendants 3 to 8. This reconveyance took place on 5-1-43 and 6-1-43 (vide para 12 of the plaint) and it was, therefore, urged that the conspiracy continued to be operative till then and that any statement in writing made by one of the fellow conspirators with reference to the common intention of all of them was admissible under Section 10, Evidence Act.
Against this argument Mr. Misra on behalf of the appellant-defendant 1 urged that the object of the conspiracy as alleged by the plaintiff was to extinguish the title of the plaintiff in respect of the disputed property and confer full title to defendant 1. This object was achieved when defendant 2 reconvey-ed the disputed property to defendant 1 on 13-10-42 and any subsequent statement made by defendant 2 would not come within the scope of Section 10, Evidence Act. In support of this argument reliance was placed on -- 'Emperor v. G.V. Vaishampayan', AIR 1932 Bom 56 (B). and -- 'Mirza Akbar v. Emperor', AIR 1940 PC 176 (C).
12. It is well settled that after the common intention of the conspirators had been achieved any statement made by any of the conspirators would not be admissible under Section 10. This point has been clearly laid down fay the Privy Council in -- 'AIR 1940 PC 176 (C); where their Lordships observed :
'Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is admissible against the other party.'
In considering how far this principle applies to the present case two questions arise :
(i) what was the common intention of the conspirators as alleged by the plaintiff and when did the conspiracy cease to operate?
(ii) apart from Ext. 7 were there reasonable grounds in the evidence to believe that there was such a conspiracy?
13. The answer to the first of the aforesaid two questions depends on a careful reading of the plaint. In para 7 it was alleged that on account of the dispute over the adoption suit between the plaintiff's husband and defendant 2 the latter conspired with his friend defendant 1 to deprive the plaintiff of the suit property and in pursuance of this conspiracy induced defendants 3 to 8 to reconvey the disputed property in favour of defendant 1 on 5-9-40. As soon as the said deed of reconveyance was executed this conspiracy ceased to be operative. In para 12, however, it was further alleged that the conspirators apprehended that the plaintiff would bring a title suit against defendant 1 and defendants 3 to 8 relying on her prior sale and that then the conspirators devised a plan for completely extinguishing her title and preventing her from challenging the title of defendant 1.
It was in pursuance of this second conspi-racy that defendants 3 to 8 were induced todefault in payment of the Government revenue so that the entire property may be brought to revenue sale and purchased by defendant 2. In para 12 of the plaint it was further stated that the subsequent reconveyance of the suit property to defendant 1 and other villages of the 'touzi' to the remaining defendants were all made in pursuance of this conspiracy. This second conspiracy is the main conspiracy in the case and on a fair reading of paras 12 and 13 it may be held that the common intention of the conspirators was to extinguish the plaintiff's title to the disputed property and to perfect the title of defendant 1 in such a manner as not to jeopardise the rights of defendants 3 to 8. In this view it may be said with some justification that the conspiracy would not cease to be operative until reconveyance by the auction-purchaser (defendant 2) in favour of defendants 3 to B also, i.e. till January 1943 and that the letter (Ext. 7) was written while the conspiracy was still operative.
14. But whatever may be the nature of the allegations in the plaint the plaintiff did not lead any evidence worth the name to show that defendants 3 to 8 shared in the aforesaid intention of defendants 1 and 2. (After considering the evidence his Lordship proceeded :)
15. My conclusion, therefore, is that there is no 'prima facie' evidence on the side of the plaintiff to prove the conspiracy as alleged in paras 12 and 13 of the plaint implicating defendants 3 to 8. The only conspiracy of which evidence may be said to exist is the conspiracy between defendants 1 and 2. That conspiracy ceased to be operative when defendant 2 resold the disputed property to defendant 1 on 13-10-42 and letter written subsequently by defendant 2 would not be admissible under Section 10, Evidence Act.
16. The next question for consideration is whether the plaintiff is entitled to a reconveyance of the disputed property from defendant 1 on equitable considerations. I am inclined to accept the findings of both the lower Courts that the disputed 'touzi' was purchased by defendant 2 in the revenue sale 'benami' on behalf of defendant 1. The testimony of P.Ws. 2 and 8 on this question gains corroboration from other circumstances already discussed. But it is an admitted fact that defendant 1 paid his share of the revenue on the 'touzi' and it was the failure of the Choudhuries (defendants 3 to 8) to pay their quota of the revenue that brought about the revenue sale. The attempt of the plaintiff to prove by hearsay evidence that defendants 3 to 8 were ready and willing to pay their quota but that defendant 1 induced their agent Bitchitrananda Mohanty not to deposit their quota of Government revenue has failed for reasons already given.
There is not even an allegation that there was fraudulent suppression of processes at the instance of defendant 1 or that the plaintiff was lulled into a sense of false security either by defendant 1 or by defendant 12. The plaintiff could have easily deposited the arrear revenue and thereby saved the property from sale. It is true that she failed to get her name mutated in the land registration records on 29-10-41; but the 'touzi' was put up for saleonly on 13-3-42 and during this period of six months there was ample opportunity for the plaintiff to safeguard her interest in the property by depositing the arrear revenue as permitted by Section 9, Bengal Land Revenue Sales Act, 1859. Instead of being vigilant to look after her own interests it appears that after her failure in the mutation case she became completely indifferent to the property. Her agent (P.W. 7) admitted that he made no enquiries in the 'Touzi' office as to whether all the co-sharers of the 'touzi' had paid their arrear revenue and whether any balance was due. Thus the facts leading to the revenue sale are as follows :
Defendant 1 as a recorded co-sharer deposited his quota of the Government revenue. The remaining co-sharers, namely, defendants 3 to 8 defaulted in payment of their quota due to their straitened financial circumstances. Their default was not brought about through the machinations of defendant 1. The plaintiff, who also claimed to be one of the co-sharers of the 'touzi', could have paid the arrear re-venue and averted the sale; but she remained indifferent. There was no understanding, either express or implied, either between defendant 1 and the plaintiff or between defendants 3 to 8 and the plaintiff in consequence of which she was lulled into a sense of false security. Defendant 1 was aware that the 'touzi' was being put to sale due to the default of defendants 3 to 8 but would not avert the sale by depositing their quota ot arrear revenue. When the property was brought to the revenue sale defendant 2 purchased it, presumably 'benami' on behalf of defendant 1 and subsequently reconveyed it to him.
17. Both the lower Courts have relied on the leading decision of the Privy Council reported in -- 'Deo Nandan Prasad v. Janki Singh', AIR 1916 PC 227 (D), and granted the relief asked for by the plaintiff. That case is, however, clearly distinguishable. There the co-sharer-mortgagee who purchased the estate in the revenue sale was himself the defaulter in payment of his quota of the Government revenue notwithstanding the existence of a previous agreement between him, and the other co-sharers to the effect that he would pay his quota of the Government revenue. The default was brought about deliberately with a view to a subsequent sale and purchase on his behalf. The other co-sharers were not aware of the default or sale. On these facts their Lordships emphasised, while dissenting from a decision reported in -- 'Doorga Singh v. Sheo Pershad Singh', 16 Cal 194 (E),
'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 appro-priating to himself their common property.'
This case was explained in a later Calcutta decision reported in -- 'Kurshed All v. Dinanath Surma', AIR 1919 CaL 431 (F) and it was pointed out that the mere fact that the purchaser of an estate in a revenue sale was one of the co-sharers was not sufficient to attract the equitable principles of Section 90, Trusts Act and that there must be something unfair, something amounting at least to sharp practice, in the conduct of the purchaser. In --'Akshaykumar v. Ahmad All', AIR 1932 Cal 434 (G), the principles laid down in -- 'AIR 1916 PC 227 (D)', were also applied to a case where a co-sharer though not in default in payment of his quota of the arrear revenue had designedly brought about the revenue sale by scheming with the other co-sharers and deliberately procured their default. In that case Rankin C. J., the Chief Justice of Calcutta High Court, observed :
'Of course, if defendant 1 had not intentionally procured the default which resulted in the revenue sale, he would have been entitled to purchase the plaintiff's estate for himself.'
For granting equitable relief a co-sharer who subsequently purchased the property in the: revenue sale must be guilty of some kind of sharp practice which would be inconsistent with any relation of mutual confidence between co-sharers. Both the lower Courts' thought that defendant 1 was guilty of sharp practice inasmuch as he dissuaded defendants 3 to 8 from depositing their quota of the arrear revenue and thereby averting the sale. I have, however, shown that this finding of both the Courts is not based on any evidence worth the name. Hence, following the observations of Rankin C. J. quoted above, it would appear that defendant 1 was entitled to purchase the property 'benami' in the name of defendant 2 in the revenue sale inasmuch as he was not guilty of any sharp practice or anything unfair. There could be no question of mutual confidence between him and the plaintiff who were both then on bitter terms of litigation.
The mere purchase 'benami' in the name of defendant 2 is itself not evidence of fraud. His failure to deposit the arrear revenue due from the other co-sharers (defendants 3 to 8) cannot also lead to an inference that he was guilty of sharp practice inasmuch as there was no understanding between him and the other co-sharers that he should pay their quota of the revenue also. The present case is very similar to a later decision of the Privy Council reported in -- 'Anath Nath, v. Dwarka Nath', AIR 1939 PC 86 (H), (in which the judgment was delivered by Sir G. Rankiri himself) where their Lordships refused to apply the principles of Section 90, Trusts Act, to a case where a co-sharer who subsequently purchased the property in the revenue sale was not guilty of any act of bad faith towards his co-sharers, had not lulled them into a sense of security, had not abused their confidence and had not done anything to prevent his co-sharers from becoming possible bidders.
The only distinguishing feature between that case and the present case is that in the former the co-sharer had done everything that was possible for him to do to prevent the sale whereas in the present case defendant 1 did not pay the arrear revenue due from defendants 3 to 8 'though he could have paid it if he had so desired. But I do not think that this makes any difference inasmuch as the principle emphasised by their Lordships is the necessity for mutual confidence, candid dealing and good faith as between the co-sharers. Where there can be no question of one co-sharer being misled by the other and the latter is not guilty of any sharp practice the equitable principles of Section 90 cannot be invoked.
18. I would, therefore, allow the appeal, set aside the judgment and decree of both the Courts and dismiss the plaintiff's suit with costs throughout.
19. I agree.