1. One Butto Krishna Sadhu-khan (defendant 2) was the owner of premises No. 182, Upper Chitpur Road, Calcutta, of a garden at Baranagore comprising an area of 1 bigha 18 cottahs being holding No. 83 in division 1, sub-division 6 of khas mahal estate No. 1068 and of other immovable properties. A yearly revenue of Rs. 6-4-6 was payable to the Collector of 24 Perganas for the aforesaid holding No. 83. He borrowed Rs. 18,000 from the plaintiff, Haridas Saha, and for securing the said loan mortgaged to the latter premises No. 182, Upper Chitpore Road and the Baranagore garden. This was on 23rd August 1926. Thereafter he borrowed Rs. 26,000 from Mr. Moore on 8th October 1927 on the security of the aforesaid two properties and some other immovable property. In 1928 Mr. Moore brought a suit in the original side of this Court to enforce his mortgage. He impleaded Butto Krishna and Haridas as defendants. Mr. O. Ahmed (defendant 3), then a practising barrister, was appointed receiver of the mortgaged premises in May 1928. On 7th July 1928 he took possession of the mortgaged premises including the Baranagore garden. The said garden was unproductive, there being no tenants in it and it did not yield anything. The receiver simply put up a notice board at the garden indicating that he had taken possession. He appointed a part time clerk, Anil Kumar Mitter, at a monthly salary of Rs. 5 and through the said clerk collected Rs. 26 monthly from the tenants occupying some of the rooms of No. 182, Upper Chitpore Road. In November 1931 he was appointed an Assistant Registrar of this Court. He was not willing to continue as receiver but was prevailed upon to continue by the parties.
2. The preliminary decree in the said mortgage suit was passed in 1930 and the final decree on 4th May 1933. The Baranagore garden was sold at a revenue sale on 2lst December 1933 and was purchased by Dulal Chandra Sadhukhan (defendant l) for Rs. 1725. The amount of arrears for which it was sold was Rs. 6-3-6. After an unsuccessful appeal by the receiver to the Commissioner of the Presidency Division for reversal of the said sale the present suit was filed by the mortgagee, Haridas, on 25th July 1934. He prayed (a) for the reversal of the said sale on the ground that it was held contrary to the provisions of Act 11 of 1859 and alternatively (b) for a reconveyance from defendant 1 either to defendant 2, Butto Krishna, or to defendant 3, the receiver on the ground that the sale was brought about by the fraud of defendant 2 to which the auction-purchaser, defendant 1, was also a party. The learned subordinate Judge refused both the prayers. Haridas does not press his first prayer before us. He accepts the findings of the learned subordinate Judge relevant to that prayer. He only presses before us his alternative prayer, that is, his case based on fraud. Mr. Sen who appears for him states the case of fraud thus:
3. Defendant 2 lulled the receiver to a sense of false security by falsely representing to him that there was an excess deposit with the Collector, and so the receiver will not have to pay revenue during the period of his receivership, that if in future there was any notice for revenue he would hand over the notice to the receiver; that he got a notice from the Collector before the revenue sale informing him that the holding was in arrears but kept back the said notice from the receiver, with a view to purchase the property at the revenue sale either in the name of a friend or a creature of his thereby destroying the rights of his mortgagees and that defendant 1 who was his nephew and who eventually purchased at the revenue sale was either his benamidar, or if he was the real purchaser, there was a secret understanding between him and Butto Krishna by which the latter was to get back his property at a cheap price freed from the mortgages. We may at once say that the case of fraud as presented to us by Mr. Sen is an improvement on the case as pleaded in the plaint. We will, however, proceed to see how far the case presented by Mr. Sen has been established on the evidence. One thing is quite clear. Butto Krishna was under no duty to pay the revenue after the receiver had taken possession. It was the duty of the receiver to preserve the properties by paying the public demands. It is also clear that even if Butto Krishna is found guilty of the fraud imputed to him, the plaintiff cannot get the alternative relief, unless it can be shown that defendant 1 was a privy to the fraud designed by Butto Krishna or at least had notice of it before his purchase at the revenue sale. We will therefore consider these two points separately, e. g.,: (i) whether Butto Krishna was guilty of fraud and (ii) whether Dulal was a privy thereto or had notice of Butto Krishna's fraud before his purchase.
4. The material evidence bearing upon the first point is the evidence of the receiver Mr. Ahmed and of his clerk, Anil Kumar Mitter. The gist of that evidence is that in 1928 after he had been appointed receiver Mr. Ahmed wrote to Butto Krishna for certain information and made enquiries about the taxes and revenues to be paid. He was given to understand by Butto Krishna that a large sum of money was in excess deposit with the revenue authorities and that he will not have to bother himself about the revenue during the period of his receivership. This assurance was given to him by Butto Krishna in 1928. This is all that Mr. Ahmed says in his examination in chief. In his cross-examination, he made the further statement that Butto Krishna told him that if he got 'notice for revenue' he would hand over the same to him. From what Mr. Ahmed said in his examination in chief fraud cannot be inferred, for what Butto Krishna told him was perfectly true. There was excess deposit which was sufficient to meet four years' revenue. The statements made by Butto Krishna were not gratuitous statements. He made them in answer to the receiver's queries. The normal period of receivership in a mortgage suit of that description would not be very long. It would be for a couple of years or so. The statement was a perfectly true and honest statement. On the further statement made by Mr. Ahmed in his cross-examination no inference of fraud can, in our judgment, be made, unless it be shown that Butto Krishna came to know before the revenue sale that the holding had fallen into arrears and had intentionally kept back that information from the receiver.
5. The notice under Section 6 of Act 11 of 1859 was published, as is required by law, in the office of the Collector of the district and in the Court of the District Judge which are at Alipore. It is not said that Butto Krishna came to know that the holding had fallen into arrears from that notice. It has, however, been urged by the appellant that Butto Krishna came to know of the said fact from the postcard said to have been written to him from the Collector's office informing him that the holding had fallen into arrears. Prafulla Kumar Dutta, a clerk of the Collectorate, proves the practice of issuing unregistered postcards to defaulters before holdings in the Khasmahal are sold. He further proves that he wrote such a postcard addressed to Butto Krishna. In support of his statement he proves an entry in the Collector's register, Ex. 4 (1l/96) which shows that a postage stamp of the value of 9 pies was utilized in addressing a postcard to Butto Krishna. Sadhukhan. There is,, however, no evidence that the postcard was addressed correctly, that is to the address where Butto Krishna was then living or that it was posted; for this no collectorate peon has been examined. There is accordingly no presumption that the postcard had reached Butto Krishna and there is no direct evidence that it reached him. In these circumstances we cannot hold that Butto Krishna had come to know that the excess deposit had been wiped out in 1933. We are moreover of opinion that it would not be safe to rely on the statement made by the receiver in his cross-examination to the effect that Butto Krishna promised in 1928 that he would let him know when he would receive a notice for revenue. No indication for such a case is given in the plaint and its omission is important, for the law requires particulars of fraud to be given in the plaint. No such statement was made by him in his examination in chief, that also is significant. It seems to us that the said statement was made by the receiver in his attempt to meet the charge of negligence which was imputed to him by Dulal's pleader in the questions immediately preceding the said statement. We accordingly hold that the plaintiff has not established fraud on the part of Butto Krishna. This finding of ours puts an end to the plaintiffs' case for a reconveyance. It is therefore not necessary to consider the conduct of defendant 1 but as the point has been argued before us we record our findings thereon.
6. The appellants' case is that Dulal who purchased the holding at the revenue sale was in league with Butto Krishna. He is Butto Krishna's nephew. In his allotment he got No. 183, Upper Chitpore Road and a holding in Baranagore (which he used as a garden) contiguous to the holding in suit. It is said that the entrance to the latter holding was through a gate of his garden. Notice under Section 7 of Act 11 of 1859 was affixed at the gate of his garden in the presence of one Kali Charan Ooriya. It is said that Kalicharan was his (Dulal's) mali and that Kali Charan handed the said notice to Jugal Banerjee, an officer of his aunt, who in consultation with him (Dulal) suppressed the same from the receiver. Dulal and his witness Jugal have denied that Kali Charan was Dulal's mali and that neither he (Dulal) nor Jugal got the said notice from Kali Charan. We hold that it has not been established that Kali Charan was Dulal's mali. The evidence of the plaintiffs' witnesses Ashutosh Roy and Abinash Chandra Ghattak is deliberately false. Abinash did not personally know Kali Charan; still he identified a man sitting among many Ooriyas as Kali Charan for having the subpoena issued on Kali Charan served. From the evidence of Ashutosh it appears that the plaintiff sent him to Palia in the district of Cuttack to bring a man from there who would have to pose in Court as Kali Charan Ooriya and support the plaintiffs' case that he took the notice down and handed it over to Dulal's man. This is indicated by the offer of a huge sum (Rs. 500) as bribe by Ashutosh to a poor and unknown Ooriya whom the former caught hold of at Palia. It would also be not safe to rely upon the statement of the receiver that he met in February 1934 a man in the garden of Dulal who gave his name as Kali mali. His clerk Anil Kumar Mitter, who is said to have brought the man to him, was examined at an earlier stage but the plaintiff did not put any question to him suggesting that he had brought such a man to the receiver who gave his name as Kali mali. The statement of the receiver as to what Kali mali had told him is inadmissible.
7. Even if the plaintiff's ease that Kali mali was Dulal's gardener be true and that he gave the notice to him or to Jugal, we do not see how the complicity of defendant 1 in the alleged fraud of Butto Krishna is established. Dulal was under no duty to inform the receiver. The notice did not concern him or his property and he may have simply ignored it. The fact that he is Butto Khishna's nephew is not of importance. He was completely separate from him. He purchased No. 182, Upper Chitpore Road, at the court sale for Rs. 23,800 and no suggestion is made with regard to that purchase. The holding in question adjoined his garden and had belonged to his ancestors. It would be perfectly natural for him to buy the same for his own benefit. The learned subordinate Judge has given cogent reasons for holding that he did not purchase it as benamidar for Butto Krishna. There is not an iota of evidence which would suggest a secret arrangement between him and Butto Krishna by which the latter was to benefit at the expense of his mortgagee. We hold that Dulal was a bona fide purchaser.
8. Some comment was made by the appellant to the effect that the property was worth much more than Rs. 1725 for which Dulal purchased it. It may be that it would have fetched more at a sale by private treaty. But revenue sales do not fetch anything like the price fetched at sales by private treaty. The valuation made by Mr. D. K. Bose seems to us to be an over-estimate. The data on which he proceeded to make his valuation were faulty, for the sales on which he relied were sales of properties which had no similarity with the holding in question. The bid sheet shows keen competition. The evidence of the two bidders Surendra Nath Dutta and Kartick Chandra Paul examined by the plaintiff to the effect that they would have gone up to Rs. 10,000 had not Dulal dissuaded them is worthless. Surendra Nath Dutt stopped his bid at Rs. 800 leaving in the field three other persons besides Dulal. Those persons raised the bid by Rs. 25 at a time. Surendra Nath Dutt and Kartic Chandra Paul were under no obligations to Dulal and it is unthinkable that at the request of a stranger they would desist from bidding and allow the property to pass to a third party at so much below its real value. For all these reasons we uphold the judgment and decree of the learned subordinate Judge and dismiss the appeal with costs to defendant-respondent 1.