Ghose and Gordon, JJ.
1. The facts of this case are shortly these:
The plaintiffs, Aghore Nath Chuckerbutty and Trailakhya Nath Chuckerbutty, were judgment-debtors in a certain decree for rent obtained by the Administrator-General of Bengal. In due course, the decree-holder applied for the execution of his decree, and the property which forms the subject-matter of this suit was advertised for sale. The judgment-debtors, the plaintiffs, appointed the defendant No. 1, Ram Churn Chuckerbutty, as their pleader to look after the execution case on their behalf. On the 21st August 1893, the property in question was put up for sale. Certain bids were then offered on behalf of the decree-holder's pleader. The sale, however, was not concluded on that day. It was resumed on the next day, namely, the 22nd August; and on that day, it would appear upon the bid papers, that the bids were confined to two individuals, the decree-holder's pleader's clerk and the clerk of Earn Churn Chuckerbutty, the defendant No. 1. The decree-holder's clerk's bid went up to Rs. 800 only- an amount just sufficient to cover the amount due to the decree-holders; and the property was knocked down to Ram Churn's clerk for Rs. 990. Subsequently, an application was presented on behalf of the judgment debtors under the provisions of Section 174 of the Bengal Tenancy Act for the purpose of having this sale set aside, but the application was rejected, because the Court (rightly or wrongly) found that the deposit which had been made by the judgment-debtors was insufficient. Thereupon, the present suit was instituted on the 17th February 1894, to have it declared that under the purchase which was made by the defendant No. 1 in the benamioi his clerk, the defendant No. 2, he acquired no title as against the plaintiffs; that in the matter of ,the purchase he was merely a trustee for the plaintiffs; and that, therefore, he should be called upon to reconvey the property in question to the plaintiff's upon payment by them of the purchase-money with such compensation as the Court might think just and proper.
2. The plaintiff's, in support of their case, alleged that about the time of the sale there was a contract between the plaintiff's agent and the defendant No. 1, their pleader, to the effect that he (the pleader) should purchase the property at the sale with his own money, and that upon payment by the plaintiffs of the purchase-money, with some dharati or compensation, the property should be returned to the plaintiffs; that at the time of the sale the defendant No. 1 declared that he was purchasing the property for the benefit of the plaintiff's; and that by reason of this declaration that he made, he managed to purchase a very valuable property for a very inadequate price; that subsequently the amount of the purchase-money that the defendant had paid, with a certain amount as dharati (compensation) was offered to him, but he (the defendant) advised that an application had better be made to the Court under Section 174 of the Bengal Tenancy Act to have the sale cancelled; that acting upon that advice, a petition was presented which was opposed by the defendant, and ultimately disallowed by the Court. And, the plaintiffs asserted in their plaint that 'as defendant No. 1 being plaintiff's pleader, purchased the highly valuable property at a low price by treachery and fraud, no right can accrue to him thereby, and the plaintiff's right cannot be impaired thereby. At law and in equity his purchase is invalid and inoperative as against the plaintiffs, and he should be considered to have purchased as trustee for the plaintiffs.'
3. The answer to this case was a complete denial of the allegations made in the plaint, though the defendant No. 1 in his evidence on oath stated that from the very first he had the intention of returning the property in question to the plaintiffs, if they paid him the purchase-money with adequate compensation. It was further pleaded on behalf of the defendants that the suit was barred by reason of the provisions of Section 317 of the Code of Civil Procedure.
4. The Subordinate Judge has held that the provisions of Section 317 of the Code of Civil Procedure do not operate as a bar to the maintenance of the suit; and in regard to the merits of the case he has come to the conclusion that, 'though there was no distinct contract between the plaintiffs' agent and the defendant No. 1 as to the purchase that was to be made by him at the auction sale, and though the defendant No. 1 could not be charged with any positive fraud, yet there was an understanding come to between the parties to the effect that the property should be returned to the plaintiffs, if they paid him back the purchase-money with some profit. The Subordinate Judge, in view of the conclusion that he arrived at, has made a declaratory decree to the effect that the defendant No. 1 purchased the property for the plaintiffs, and has directed that the defendants do reconvey the property in question to the plaintiffs within a month, upon the receipt of Rs. 990 plus Rs. 150, which he regards as sufficient compensation to the defendant No. 1, and that the plaintiffs do tender this amount to the defendants within fourteen days from the date of the decree; and that in case the defendant No. 1 refuses to accept the said amount, the plaintiffs do deposit the same in Court; and that defendant No. 1 do return the property in suit to the plaintiffs within one month on receipt of the money.
5. Against this decree the defendants have appealed to this Court; and on their behalf it has been contended by the learned Advocate-General, in the first place, that the suit is barred by reason of the provisions of Section 317 of the Code of Civil Procedure; and that the defendant No. 1 having been put into possession of the property under the sale, it was not open to the plaintiffs to ask for a bare declaratory decree: what they should have asked for was consequential relief, that is to say, a decree for the recovery of possession. It has further been contended upon the merits that the contract set up by the plaintiffs in their plaint not having been proved in the opinion of the Court below, the suit should have been dismissed; and it has generally been argued that upon the facts of the case the plaintiffs are not entitled to any relief.
6. Now, with regard to the contention raised before us that this suit cannot be maintained, having regard to the provisions of Section 317 of the Code, it seems to us that there are two answers to it. In the first place, the true remedy that has been asked for in this case is not against the certified purchaser, the defendant No. 2, but against the defendant No. 1; and in the second place, the suit is not upon the ground that the purchase was made by the defendant No. 1 'on behalf 'of the plaintiffs, though, no doubt; his case is that it was for the benefit of the plaintiffs. The policy of the law, as embodied in Section 317, evidently is to check benami purchases, where one person, under a secret understanding with another, allows the name of that person to appear as the ostensible purchaser, the money employed in the purchase being his, and the beneficial title in the property so purchased being in him. Here, the plaintiffs' case is that the purchase was made by the defendant No. 1 with his own money, but for the benefit of the plaintiffs, and that that individual, the defendant No. 1, having managed to purchase the property at an inadequate price by means of treachery and fraud at the time of the sale, he must betaken to have made the purchase as, trustee for the plaintiffs. In this view of the matter it seems to us that Section 317 of the Code of Civil Procedure can have no application to this case.
7. Then as regards the other question of law raised, namely, whether the plaintiffs are entitled to maintain the suit merely for a declaratory decree, without asking for any consequential relief, it appears that on the date the plaint was presented, the defendant No. 1 had not obtained possession of the property purchased by him; and, therefore, the only possible remedy that was open to the plaintiffs to ask for was a declaratory relief. He, however, did ask for a consequential relief, the only consequential relief he was then in a position to pray for, which we pointed out in the course of the argument, namely, that the defendant be directed to reconvey the property in question to -the plaintiffs. That being so, we overrule this point also.
8. Then, as regards the merits of this appeal, we must confess that the case is not altogether free from difficulty, but having given the facts our best consideration, we think that there can be no doubt that about the time of the sale there was an understanding between the plaintiffs' agent and the defendant No. 1, that if the latter should be able to purchase the property at the sale, he would, upon payment by the plaintiff's to him of the purchase-money, with some compensation, return the property to the plaintiffs. We agree in the view that has been expressed by the Subordinate Judge that no precise contract seems to have been entered into, at any rate such a contract has not been proved; but there can be no doubt, having regard to certain facts to which we shall presently refer, that there was an understanding of the character alleged, and which the Subordinate Judge has accepted as true,-an understanding which the defendant No. 1 seems to have acted upon from the very first to the last.
9. Now, it will be found upon the record that the application that was presented on behalf of the plaintiffs for setting aside the sale under Section 174 of the Bengal Tenancy Act, was made on the 18th September 1893. A week before that date, that is to say, on the 11th September, a plaint was presented on behalf of the defendant No. 1 in the Civil Court for the recovery of a certain amount of money said to be due to him, against the plaintiffs. Upon the same date that this plaint was presented, an application was made on behalf of the defendant No. 1 for the attachment of this very property before judgment. This petition is not upon the record, but we have it upon the evidence of the defendant No. 1 himself that it was so; and what appears to us to be a very significant fact is that he caused the property in question to be attached for the satisfaction of his claim as the property of the plaintiffs.
10. Now, the conduct of the defendant No. 1 in this connection can be compatible with one theory only, and that theory is, that at the time when the purchase was made, and when this petition for attachment was presented, it was well understood that the purchase was for the benefit of the plaintiffs. The defendant No. 1, however, attempted to get over the difficulty by suggesting, if not distinctly alleging, an erroneous fact; and that fact is, as appears from his evidence at page 76 of the paper-book, that the petition for attachment was made when the plaintiffs' application for setting aside the sale was pending in the Court; but that is not true. As we have already mentioned, the application under Section 174 was not made until a week after the presentation of the plaint in the-bond suit, and from the date when the petition for attachment before judgment was presented.
11. If there be any doubt as to the precise time at which the said petition for attachment was made, one has only to refer to what the defendant No. 1 himself states. He says as follows: 'I do not remember whether I attached the mehal in dispute in execution of the decree obtained by me in the bond suit against these plaintiffs; 'then says,' I think I caused the said mehal to be attached. The mehal was then standing in my mohurir Ram Gobind's name; and the plaintiff's' application for setting aside the sale was pending. It was on that account that I kept the disputed mehal attached in execution of my decree. I attached previous to judgment along with the filing of the plaint.' We have then another significant fact, as appears upon the evidence of Ramdin Bhuttacharjee, the pleader on behalf of the decree-holders. He says as follows: 'Earn Churn Babu said to me, 'you are bidding to the ruin of my client; i.e., he talked with me in a way so as to dissuade me from bidding. He said: 'If you bid and purchase, my client will be ruined.' He said to me to that effect. He did not tell me for whom he was bidding. But his client' man having been with him, and from his acts and words it appealed tome clear that he was bidding for his client.' Later on, he says: 'The bidding continued even after Earn Churn Babu had told me as above. I bid up to about Rs. 1,000. The Administrator-General's claim was about that amount, and Earn Churn Babu objected to the bidding. I did not therefore give higher bids.' In cross-examination he repeats the same story. He says: 'On arriving at the place of sale, Earn Churn Babu said to me, 'You are bidding for and purchasing the property to the rain of my client and words to this effect he spoke twice or thrice.'
12. Now if this evidence can be accepted, and we might here mention that the Subordinate Judge has accepted it as true, there can be no doubt as to what actually occurred. On the previous day, bids had gone up to Rs. 125. It has just been left in doubt whether on that day the defendant No. 1 was present. It would rather appear that the plaintiffs' agent was then negotiating with the decree-holder's pleader for getting a postponement of the sale. He, the plaintiffs' agent, was evidently in hopes of the concession asked for being granted, and it is quite possible that when the sale was commenced on the 21st August, neither the plaintiffs' pleader nor their agent was actually present.
13. Either on the same evening or on the morning of the next day, the fact that the property would be put up to sale on that day was communicated to the defendant No. 1; and on the 22nd August, when the sale was resumed, both the decree-holder's pleader's clerk, and the clerk of the defendant No. 1, acting on behalf of their respective employers, offered bids; and the biddings, as already mentioned, were confined to these two persons only. At that time, the defendant No. 1 attempted to dissuade Ramdin Bhuttacharjee from bidding at the sale, pleading the cause of his clients. He does not seem to have been much impressed with the persuasion in the beginning; for evidently he was determined to bid up to the amount of the decree; but the moment that amount was reached, he refrained from bidding any further; and he swears that he did so on account of the persuasion of the defendant No. 1. Now, what is the result that followed? The result was that the defendant No. 1, the pleader for the plaintiffs, succeeded in purchasing the property in question for the small sum of Rs. 990-a sum far far below its proper price.
14. The question then arises, whether, in the circumstances under which the defendant No. 1 succeeded in purchasing the property, he can be entitled to maintain his purchase to the prejudice of the plaintiffs.
15. Now, referring to the vakalatnamah, under which the defendant No. 1 was engaged in the matter of this execution case on behalf of the plaintiffs, it would appear that he was appointed 'for the purpose of filing petitions, for adjourning the sale, &c;,' and the document states:
We appoint Babu Madhu Sudan Dutt, Babu Ram Churn Chuckerbutty, Babu Shoshi Bhusan Sarkar and Babu Hari Prasunno Mozumdar, pleaders of this Court, as pleaders on our behalf, and. we promise and declare that any of the pleaders being present in Court will file and sign petitions for time, &c;, make arguments and otherwise manage the case, &c;, and put in and take back money by giving receipts or sign applications for time; and whatever acts are done by him in connection with this execution case shall be admitted and accepted by us,' &c.;
16. So that this pleader was appointed to do everything on behalf of his clients, the plaintiffs, in connection with the execution case, and the defendant No. 1 in his evidence distinctly admits that up to the time of the sale he was acting as the sole pleader on behalf of the two judgment-debtors. That being the case, it seems to us that it would be acting in violation of all rules of equity and good conscience, if we were to hold that the defendant No. 1 is entitled to maintain his purchase to the detriment of the plaintiffs.
17. We think that the view of the facts and of the law that has been accepted in the case by the Court below is correct; and that, in the circumstances as disclosed by the record of the case, the only decree that the Subordinate Judge could have properly made was the decree that he did make, namely, that the plaintiffs should be entitled to obtain a reconveyance of the property from the defendant on certain terms, those terms being that they should repay to the defendant No. 1 the purchase-money paid by him, with 15 per cent, upon that amount, as compensation within a certain time fixed.
18. We accordingly affirm that decree.
19. In regard to the costs of this appeal, we think that having regard to the fact that the plaintiffs have been unable to prove the precise contract set by them, each party should bear his own costs in this appeal; and we may mention that that was the course adopted by the Subordinate Judge in the matter of the costs in his Court.
20. The result is that this appeal is dismissed, but without costs.