P.N. Mookerjee, J.
1. This appeal is by defendants Nos. 3 and 4 and it arises out of ft reversioner's suit for recovery of possession of properties, said to have been alienated by the limited owner
2. The suit has been decreed by the learned Trial Judge and two of the defendants, Nos. 3 and 4. have now come up on appeal to this Court.
3. In the suit, there were 28 defendants and 7 properties, comprised in 5 items of the schedule to the plaint, item No. 1 and item No. 5 having two sub-items each. In the course of the proceedings in the trial court, defendants Nos 5-7 and 18-26 were struck out front the suit and defendants Nos. 9-16 and 28 compromised their disputes with the plaintiff with the result that the suit was ultimately decreed on contest against the present appellants (defendants Nos. 3 and 4) and ex parte against defendants Nos 1, 2, 8 17 and 27 and on compromise against the aforesaid defendants Nos. 9-16 and 28, Defendants Nos. 3 and 4, the present appellants, were interested only in two of the items of the plaint schedule, namely items Nos. 3 and 5 and. in the present appeal, which is at the instance of the said defendants, we are concerned only with the said two properties,
4. Shortly stated, the relevant facts lie within a very short compass and may be stated as follows:
All the suit properties originally belonged to one Hiralal Banerjee, son of Bajiblochan Banerjee, the common ancestor of the reversioner plaintiff and Chintamoni. the deceased husband of the limited owner Garabini Hiralal died on Chaitra 3 1303 B.S. (corresponding to March 15, 1897) in the morning and this was followed in the evening by the death of his only son Chintamoni abovenamed who left his widow Garabini as the owner of Hiralal's properties by inheritance under the above circumstances. It is the plaintiff's case that this limited owner Garabini appointed Pratap, som of her uncle-in-law Gurudas, as her Ammoktar for looking after the properties, inherited by her as aforesaid The Ammoktarnama was executed on Jaistha 28 1304 B.S and this was followed by an agreement by Pratap in favour of Garabini on Bhadra 24 following
It is the plaintiff's further case that this Pratap. in collusion with Puma, the present defendant No 3 (appellant) had certain sud bandak documents executed and registered by Garabini in favour of defendant No 1, Sambhu, and defendant No. 2. Balaram. on April 6, 1918 and October 13, 1923. The plaintiff alleges that these were collusive and fraudulent transactions and were created by Purna and Pratap in collusion with Garabini for the purpose of defrauding the ultimate reversioner, who eventually came to be the plaintiff himself. The plaintiff's further case is that Puma, in collusion with Garabini and with the same intention of defrauding the ultimate reversioner, obtained from her a pattah in respect of item No. 3 of the schedule to the present plaint, comprising 11 decimals of land, for a paltry selami of Rs 49 and an insignificant rental of annas four per annum with a recital of alleged legal necessity for the said grant on the allegation that the said amount was necessary for setting aside the sale of another property of Garabini, namely, the Bhimsena property
The plaintiff further alleged that item No. 5 of the schedule to the plaint, comprising fee property of kheyat No 6, which was a Joint kheyat with two other kheyats 6/1 and 6/3, coming out of the original single kheyat No 16, was allowed to be sold at a rent sale by making deliberate default in the payment of rent, on May 30, 1934 and this was done by Garabani in conspiracy with Purna and Pratap and also, as the plaint stands, with the superior landlord or the Malik This sale was followed eventually by another rent sale of the same property on April 28 1950, at which it was ostensibly purchased by defendant No. 4 who was a son of defendant No. 3 The plaintiff alleges that both these rent sales wereprocured by defendant No. 3 in collusion with Garabini for the purpose of defrauding the ultimate reversioner and getting hold of the said property (item No. 5 of the plaint schedule) and he alleges further that, in the said sales, the said defendant No. 3 was the real purchaser the ostensible purchaser in the first sale being his Mukhtar Nibaran Majumdar and, thereafter, his brother-in-law Jagat to whom it was released by Nibaran, and, at the second sale, defendant No. 3's son Sankar (defendant No. 4) was really the auction-purchaser for defendant No. 3. The plaintiff, accordingly, contends that the lease of item No. 3 of the plaint schedule is not binding upon him as reversioner, there having been no legal necessity for the said transaction, and he further contends that the disputed property of item No. 5 was fraudulently allowed to be sold with a view to defrauding the plaintiff as the ultimate reversioner and, accordingly, the said sale also would not be binding upon him and, on these allegations he seeks to recover possession of these two properties from the present appellants.
5. It will be convenient at this stage to set out the geneologies of the two families, to
which the interested parties before us belong. Those geneologies may be given as follows:
I. RAJIB LOCHAN BANERJEE
| | |
Manik Hiralal D. 15-3-1897 Gurudas
------------------------------------------------------------------- Pratap Chandra
| | | |
Sampurna Chintamani = Ga abini Binda Debi |
D. 15-3-1897 D. 5-7-51 | Sambhu Nath
Gouri Pada Mukherjee Defdt. 1
Plff. (married a daughter
of Garabini's sister).
II. NADYAR CHAND BANERJEE
| | | |
Natabar Balaram Abhoy Charan Purna Chandra Deft. 3
Defdt. 2 (married a daughter |
of Garabini's sister) Sankar or Tara Shankar
6. The learned Subordinate Judge has, upon the evidence before him, accepted the plaintiff's case that Garabini was in affluent circumstances at all the above relevant periods, namely 1934 when the first rent sale took place in 1942, when the disputed pattah was given to defendant No. 3 and in 1950, when the second rent sale purported to pass title to item No. 5 of the plaint schedule to defendant No. 4. His further finding is that there was collusion between Garabini and Purna and that, at some stages, with Pratap too with regard to the sud bandak transactions referred to hereinbefore, and also with regard to the above lease and rent sales. There is however no finding by him,--and. indeed, there is no evidence to that effect,--that the Malik or the superior landlord ever participated in any collusion or fraud in respect of the above rent sales, nor is the said Malik or superior landlord a party to the present suit. In these circumstances, the learned Subordinate Judge's decree, declaring that the rent sales in question were void as having been brought about by fraud would not be strictly supportable and his decree for recovery of possession, given to tile plaintiff in respect of item No. 5 of the plaint schedule on that footing, would also not be wholly correct.
7. In support of this appeal. Mr. Mitter raised a number of contentions before us but his principal submission was that the instant suit being based on fraud and collusion, the plaintiff would not be entitled to succeed in the absence of sufficient particulars of such fraud and collusion in the plaint, or, at least, in the evidence, and his main grievance is that such details are not to be found either within the four corners of the plaint or in the evidence adduced in the case.
8. Mr. Mitter further contends that, as there was no prayer for setting aside the rent sides in question,--and, indeed, no such prayer could be entertained in the absence of the superior landlord--the plaintiff's present suit for recovery of possession would not be maintainable.
9. He has further submitted that the findings of the learned Subordinate Judge that the ostensible purchaser at the first rent sale, namely Nibaran and the real purchaser, according to this ostensible purchaser, namely. Jagat, were benamdars of defendant No. 3, are not based on any evidence but on mere surmises and speculations and similar, according to him. is the position with regard to the second rent sale purchaser Sankar, defendant No. 4, as apart from his (Sankar's) relationship to defendant No. 3, he being the son of the said defendant No. 3, there is, according to Mr. Mitter, nothing in the instant case to justify a finding of benami as aforesaid, against defendants Nos. 3 and 4 in the matter.
10. In our view, broadly speaking, the learned Subordinate Judge, who has discussed the evidence in the case in great details, has come to the right conclusion on that evidence that the same sufficiently discloses fraud and collusion between Garabini and Purna to affect the first rent sale in question and, as to benami also, the circumstances are clear and these circumstances have been discussed in all the relevant details by the learned Subordinate Judge to indicate that the purchases at the two rent sales were made for the real purchaser defendant No. 3 Purna.
11. Giving our best consideration to the materials before us we are also unable to up-bold Mr. Mitter's contention that sufficient particulars of fraud and collusion are not to be found, either in the plaint or in the evidence. It is true that in the plaint, there was an allegation of fraud against the Malik too but no particulars of any such fraud are to be found there,--and, indeed, there is no evidence also on the point in the instant case,--but, as we have said above, the Malik is not a party to the instant suit and that being so, no relief can be given against the Malik and, necessarily the rent sale in question cannot be held to be void and invalid. To that extent, the learned Subordinate Judge's ultimate conclusion must be held to be wrong and his decree, given on that footing, so far as item No. 5 of the plaint schedule is concerned, cannot be strictly supported. That, however, would not put the plaintiff out of Court. In the circumstances of the instant case, upon the finding, made by the learned Subordinate Judge and affirmed by us, that the first rent sale was brought about by collusion between Purna and Garabini and that he (Purna) was the real purchaser in the said sale and also at the second rent sale, the position in law would clearly be that he would be holding the property in question (item No. 5 of the plaint schedule) to trust for the plaintiff, who happens to be theultimate reversioner.
12. Mr. Mitter, no doubt, contended that there was no express case of trust, made in the pleading, but that, in our opinion, is not of any material consequence. The plaintiff claimed relief on a wider footing and, even if the said wider footing fails, he is certainly entitled to such relief as law would allow him on the narrower footing of a trust, which necessarily follows from the above findings of fraud and collusion. In his view, the case resembles.--though it is not directly covered by,--the decision of the Judicial Committee and the underlying principles of that decision, namely, in the case of Deonandan Prashad v. Janki Singh 44 Ind App 30: (AIR 1916 PC 227), but it more directly comes under the later decision of this Court, reported in Akshay Kumar Nath v. Ahmad Ali : AIR1932Cal434 , and, in the instant case with regard to the above disputed item No 5, we would follow the same pattern in granting relief to the plaintiff, as was laid down by Sir George Rankin in the above-cited authority In other words, the plaintiff will get a reconveyance from defendants Nos. 3 and 4 of the disputed item No. 5 of the plaint schedule, on payment to them--more correctly, to defendant No. 3, the real claimant--of the sale price in the above two rent sales, namely. Rs. 120 + Rs 30, or in all Rs 150, and production of proper stamps for the purpose of the said reconveyance, within a time or limes to be fixed, for the above purpose or purposes by the learned trial Judge This disposes of the present appeal, so far as the disputed item No. 5 of the plaint schedule is concerned
13. With regard to item No. 3, the finding of the learned Subordinate Judge that there was no legal necessity on the part of the limited owner Garabini for granting the impugned settlement, is a clear and sound finding on the evidence before the Court. That evidence, as discussed by the learned Subordinate Judge.--and we agree with him to his said discussion,--amply demonstrates that Garabini was in affluent circumstances at the time and did not require any financial assistance by the leasing out of any of her properties for any purpose whatsoever. Moreover, it further appears that the sale of her Bhimsena land, which was alleged to be the reason for the so-called necessity was really a myth, as, in the said sale Garabini was not a judgment-debtor and accordingly her interest in the said Bhimsena land could not have passed thereunder.
14. Clearly, on the above materials, the learned Subordinate Judge arrived at the right conclusion that the disputed pattah (Ext. A) with regard to item No. 3 of the plaint schedule was not for legal necessity and could not, accordingly enure beyond the lifetime of the limited owner Garabini or be binding on the plaintiff reversioner He was therefore, perfectly justified to pass a decree for recoveryof possession in favour of the plaintiff respondent in respect of the said item.
15. In the above view, it is not necessary for us to discuss the series of cases, cited by Mr. Mitter in support of his contention that sufficient particulars of fraud had not been given in the plaint or disclosed in the evidence, or the other cases, cited by the parties during argument. These decisions namely. Dalip Singh v Chaudhrain Nawal Kunwar. (1908) 35 Ind App 104 (PC). Bharat Dharma Syndicate Ltd. v. Harish Chandra. 0049/1937 . Anath Nath v. Dwarka Nath. . K.V. Dakshinamurthi Somayulu v. K. Krishnamurthi. AIR 1957 Andh Pra 337. Balabhadra Misra v. Sm. Nirmala Sundari Devi, : AIR1954Ori23 . Khurshed Ali v. Dina Nath. 29 Cal LJ 492: (AIR 1919 Cal 431). Bishundeo Narain v. Seogeni Rai, : 2SCR548 , Union of India v. Pandurang Kashinath. : (1961)IILLJ427SC , Ladli Parshad v. Karnal Distillery Co. Ltd.. : 1SCR270 . Maniklal Mansukhbhai v. Bijoy Singh, 26 Cal WN 409: (AIR 1921 PC 69). Satish Chandra v. Satish Kantha. 28 Cal WN 327: (AIR 1923 PC 73), and Bhubanmohini Dasi v. Kumudbals Dasi : AIR1924Cal467 , would not therefore, require any comment or discussion in the instant case. We may, however, just add that none of them would militate against the view, taken by us in the present case, but most of them would support the same. We may also add further that the instant case falls, even in respect of Mr. Matter's specific argument, noted above, within the well-known observations of the Judicial Committee in 28 Cal WN 327: (AIR 1923 PC 73) supra, where their Lordships indicated and laid down clearly that evidence in the case of Fraud for proving the same need not be so specific or definite as in other cases (vide p. 332 of the Report).
16. In the premises, this appeal will fail except for the modification, which we have already indicated, in the decree of the learned Subordinate Judge, namely, that, so far as item No. 5 of the plaint schedule is concerned his straight decree for recovery of possession on a declaration that the rent sales in question were void and invalid would be substituted by a decree for reconveyance by defendants Nos. 3 and 4 in favour of the plaintiff on the terms indicated hereinbefore, to be followed by a decree for recovery of possession on such reconveyance. The time within which the matter is to be completed in all its details will be left to the learned Subordinate Judge, to whom the case will now be remitted for necessary and further action. It is necessary to mention also that, if within the time, granted by the learned Subordinate Judge, the plaintiff does not do his part, as required under our present judgment his suit, so far as item No. 5 of the plaint schedule is concerned, will stand dismissed.
17. Subject to the above modification, this appeal fails and it is dismissed.
18. Let the case be now remitted to the teamed Subordinate Judge for appropriate action in terms of this judgment.
19. There will be no order for costs in this Court.
A.C. Sen, J.
20. I agree.