N. Chatterjea, J.
1. The plaintiff-appellant sued to recover possession of her share in certain properties inherited by her from her father and mother and which had been sold away for arrears of revenue or rent. She alleged that the defendant No. 1 who is her brother managed the whole estate on behalf of all the co-sharers, and that she was in possession jointly with him by receiving her share of the rents and profits; that after she had fallen out with defendant No. 1, the latter did not pay her share of the rents and profits nor give up her share of the properties and that in order to deprive her of her share caused the properties to be sold for arrears of revenue and himself purchased the same with his own money in the names of the defendants Nos. 10-13, but that all the properties were in his possession.
2. The defendant No. 1 pleaded inter alia that the plaintiff was never in possession, that the suit was barred by limitation, that he had purchased two of the properties, and that some of the other properties were purchased by some of the other defendants. The latter set up their respective purchases and pleaded that they were not benamdars of the defendant No. 1.
3. The Court of first instance gave the plaintiff a decree for possession in respect of some of the properties, holding that the others did not belong to her father.
4. Some of the defendants appealed in respect of some of the properties.
5. The learned Subordinate Judge on appeal dismissed the plaintiff's suit with respect to the subject-matter of the appeals before him.
6. The plaintiff has appealed to this Court and it has been contended on her behalf firs} that the defendant No. 1 was under an obligation to pay the Government Revenue and that the purchase made at the sale after committing default in payment of revenue or rent could not affect plaintiff's rights and that the plaintiff was entitled to recover her share of the properties, and secondly that the learned Subordinate Judge is wrong in holding that the plaintiff could not contend that the properties purchased by the defendants Nos. 10 to 12 were really purchased by the defendant No. 1 merely because the latter denied having any right to them.
7. With regard to the first contention, it appears to me that the learned Subordinate Judge has not properly tried the question and has not found all the facts necessary for the decision of the question. He states in his judgment: 'So it appears from her statement that she was a grown-up woman fit to manage her property when her father died. Defendant No. 1 appears to be either younger or older than her by a few years only. Hence there can be no reason to hold that she would leave the management of her property with her brother after the death of her mother if she were at all in possession of it or claimed it.
But she says that she had been all along in possession of the property by receipt of its usufruct. If this be true, it was her duty to pay the share of the revenue or the entire revenue payable for the property, to save it from sale. But there is nothing to show that she ever paid any revenue or made any payment for it to defendant No. 1.
Under any circumstances, it does not appear that defendant No. 1 was under any obligation to her to pay her share of the revenue. There were many co-sharers. There is nothing to show that the defendant No. 1 had any obligation to pay their share of the revenue. It was quite optional with the defendant No. 1 to pay the revenue or not. Further, it appears that all the sales except one took place after the brother and the sister had fallen out with each other. Such quarrel must have led plaintiff to know that defendant No. 1 would do nothing for her benefit, if such an act was ever before done by him, as a self imposed task and without any obligation to her.
Therefore, if the property had been sold for arrears of revenue, defendant No. 1 could not be held liable for sale and he could not be held guilty of any act of fraud.
8. He has not, however, decided whether the plaintiff was in possession nor has he found for whose default the sales took place.
9. If the plaintiff was in possession of her share of the properties and used to get the rents and profits in her share and did not pay her share of the revenue or rent, she has no ground whatever for claiming her share of the properties if they were sold for arrears of revenue or rents and purchased by the defendant No. 1 in his own name or in the benami of others. If, on the other hand, she was not in possession of her share since her mother's death which it appears took place only 10 years before the suit and the defendant No. 1 kept her out of possession, enjoyed the rents and profits of the properties' of her share and in order to deprive the plaintiff of her share of the properties he committed default in paying revenue or rent' and purchased the properties in his own name or in the names of other persons, such purchases cannot, I think, affect the plaintiff's title and she is entitled to recover her share of the properties. A similar view was taken in the case of Chunder Nath v. Tirtha Nund Thakoor 3 C. 504 at pp. 506. 507 where the learned Judges observed as follows: Now it seems clear that if the plaintiff succeeded in proving that the principal defendant's father had committed default in the payment of the Government Revenue with the view of bringing the property to be purchased in the name of Shib Prosad for his own benefit, that would be such a fraud as would entitle plaintiff to the assistance of the Court, and the property ought to be reconveyed to the plaintiff' and the fraud in question is merely a part of the machinery by which, if the plaintiff's case is true, the defendants have kept the plaintiff out of possession of a property to which he became entitled at the death of the widow Annopoorna' In that case the arrears fell due at a time when the plaintiff had become the rightful owner of the property but had been kept out of possession of the property by the defendant's father.
10. The learned pleader for the respondent relied upon the case of Doorga Singh v. Sheo Pershad Singh 16 C. 194 where it was held that the right of a co-sharer to buy up an estate at a revenue-sale was not based upon any right or interest common to himself and his co-sharers and that in the absence of misrepresentation or concealment the fact that he had intentionally defaulted did not constitute fraud and the learned Judges observed as follows: 'Every co-sharer in a zemindari may, if he chooses, bring it to sale by not paying the revenue, but every other co-sharer can save it from sale by paying the arrear and can recover the amount from the defaulter. The fact of the defendants being co-sharers in the property did not clothe them with any fiduciary character which disqualified them from buying this property unless it was for the benefit of all the co-sharers.'
11. The view taken in the above case, viz., that the fact of the defendants being co-sharers in the property did not clothe them with any fiduciary character, has been questioned in two unreported cases. In appeal from Original Decree No. 545 of 1904 decided by Brett and Mookerjee, JJ., on the 28th August 1907 Chowdhury Ram Pershad Singh v. Chowdhury Paman Singh the learned Judges observed as follows: 'We agree with the learned Advocate-General that it is not possible to hold that a co-sharer is under, a legal obligation to his co-sharers to pay in his share of the Government revenue but we think that in that case (cited above) Mr. Justice Banerji went too far when later in his judgment he says that the fact that the defendants having been co-sharers with the plaintiffs did not clothe them with any fiduciary character at all. We think that if the term fiduciary character' be used in its broadest sense this goes too far, for we consider that it is not possible to hold that between co-sharers in a joint estate all being liable to pay their quota of the Government revenue according to their respective shares no relation of mutual confidence exists, otherwise the position of co-sharers in a revenue paying estate if they were always open to be over-reached and deceived by their co-sharers would be intolerable.' A similar view was also taken by Holmwood and Digambar Chatterji, JJ., in Janki Singh v. Debi Nandan Pershad 7 Ind. Cas. 772.
12. The actual decision in the above three cases turned upon facts which are different from those of the present. It is not necessary, however, to decide in the present case which of the above two views is correct. In all those cases all the co-sharers were in possession and the question arose whether one co-sharer who commits default in paying his quota of the revenue and purchases the property himself commits any fraud on his other co-sharers.
13. In the present case if the defendant No. 1 kept the plaintiff out of possession of the properties, appropriated the rents and profits and wilfully defaulted to pay the Government revenue in order to deprive her of her share and purchased them himself, I think the sale would not affect her rights and the defendant No. 1 would be bound to re-convey her share of the properties to her. But the re-conveyance will be conditional on plaintiff's paying her proportionate share of the purchase-money, the defendant No. 1 accounting for the profits of the properties for the period the plaintiff was kept out of possession. If, however, any of the sales took place owing to the default committed by the co-sharers other than the defendant No. 1 in respect of any property and if the latter was not in charge of their shares, I think that plaintiff's suit would fail in respect of such properties.
14. With regard to the second contention I think that the lower Appellate Court is wrong in holding that the plaintiff cannot contend that the properties were purchased by the defendant No. 1 merely because the latter denied having any right in them. The plaintiff can certainly show that the alleged purchasers were merely benamdars for the defendant No. 1 who purchased in their names, in order to deprive the plaintiff of her share of the properties. The learned Subordinate Judge ought to have come to a finding upon the said point on the evidence. If it is found that the defendant No. 1 purchased the properties in the benami of the other defendants the consequences will be the same as in the case of purchase made by the defendant No. 1 in his own name.
15. The case is accordingly remanded to the lower Appellate Court for a re-hearing of the appeal in accordance with the observations made in this judgment. Costs to abide the result.