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Kurshed Ali and ors. Vs. Dinanath Surma and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal431,49Ind.Cas.802
AppellantKurshed Ali and ors.
RespondentDinanath Surma and ors.
Cases ReferredDaonandan Prasad v. Janki Singh
Excerpt:
bengal revenue sale law (act xi of 1859) - revenue sale--purchase by one of defaulting co-sharers--right of other co-sharers to recover their shares on payment of expenses. - .....from him. the subordinate judge in the trial court gave the plaintiffs a decree. on appeal, the learned district judge has reversed the decree of the subordinate judge and dismissed the suit.2. the plaintiffs have appealed to this court.3. on their behalf it is contended that the learned district judge has not correctly applied the principle of law applicable to the purchase of an estate at a sale for arrears of revenue by one of the co-sharers. the principle referred to is now well settled inasmuch as the legal considerations which arise in the case of such a purchase have been authoritatively stated by the privy council in the recent case of daonandan prasad v. janki singh 39 ind cas. 346 : 21 c.w.n. 473 : 1 p.l.w. 294 : 15 a.l.j. 154 : 32 m.l.j. 206 : (1917) m.w.n. 254 : 25 c.l.j......
Judgment:

Richardson, J.

1. In the year 1315 B. S. the defendant No. 1 purchased a share in an estate in the district of Sylhet. The total land revenue payable in respect of this estate amounted between Rs. 2 and Rs. 3 per annum including the local rate. The estate was held by a number of co sharers who had opened separate accounts. In the year 1912, the estate was sold, it is said, for arrears of revenue due in respect of the year 1317 B. S. and the second kist of the year 1318 B. S. The purchaser was the defendant No. 1. The plaintiffs are his former co-sharers in the estate and they brought this suit to obtain a recnveyance of their shares from him. The Subordinate Judge in the trial Court gave the plaintiffs a decree. On appeal, the learned District Judge has reversed the decree of the Subordinate Judge and dismissed the suit.

2. The plaintiffs have appealed to this Court.

3. On their behalf it is contended that the learned District Judge has not correctly applied the principle of law applicable to the purchase of an estate at a sale for arrears of revenue by one of the co-sharers. The principle referred to is now well settled inasmuch as the legal considerations which arise in the case of such a purchase have been authoritatively stated by the Privy Council in the recent case of Daonandan Prasad v. Janki Singh 39 Ind Cas. 346 : 21 c.W.N. 473 : 1 P.L.W. 294 : 15 A.L.J. 154 : 32 M.L.J. 206 : (1917) M.W.N. 254 : 25 C.L.J. 259 : 21 M.L.T. 240 : 5 L.W. 526 : 19 Bom. L.R. 410 : 44 C. 673 (P.C). Difficulties, however, may still occur in the application of the law so laid down to the facts of particular cases.

4. Now it is conceded by the learned Vakil for the plaintiffs that the mere fact that the purchaser of an estate is one of the co sharers is not in itself sufficient to give the other co-sharers an equity to obtain the reconveyance of their sharers from the purchaser on their paying to him their proper proportion of the expenses which he has incurred. To support a claim to this equity, there must be something unfair, something amounting at least to sharp practice, in the conduct of the purchaser. That may be gathered from the passage in their Lordships' judgment in which they advert to the 'need of demanding from each co-sharer 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 appropriating to himself their common property.'

5. In the present case the District Judge has found--in second appeal we cannot quarrel with his findings of fact--that all the co-sharers except plaintiffs Nos. 14, 15 and 16, those plaintiffs having paid their dues regularly throughout, are equally responsible for the default or defaults which brought about the sale. He has further found, in my opinion plainly enough, that no designing motive or deliberate intention to oust his co-sharers can be attributed to the defendant No. 1. The share of the revenue for which the defendant No. 1 was responsible was trivial. 'It seems to me', the District Judge says, 'that his interest was so trivial that as usual he left the more interested proprietors to pay the revenue.' Again, he says: 'It is not urged that apart from the facts that defendant was a co-sharer and did not pay his rent, there is any circumstance which will support this decree.'

6. In my opinion on the facts as found the District Judge is right in his conclusion that the equity on which the plaintiffs rely is not brought into play.

7. The learned Vakil for the defendant No. 1 has, however, in the cause of his argument conceded that the plaintiffs Nos. 14, 15 and 16 may be dealt with on a different footing and that a decree may be made in their favour.

8. The decree of the District Judge will, therefore, be varied in this way The suit will be dismissed as against all the plaintiffs except the plaintiffs Nos. 14, 15 and 16. The decree will further contain a declaration that the plaintiffs Nos. 14, 15 and 16 are entitled to a reconvayance of their shares in the estate on payment by them of their proportionate shares of the expenses duly incurred by the defendant No. 1 in connection with his purchase.

9. The case is remanded to the first Court in order that the Subordinate Judge may fix the amount to be so paid and the time within which the payment is to be made.

10. We make no order as to the costs of this appeal.

Shamsul Huda, J.

11. I agree.


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