1. This is an appeal by the first defendant in a suit for confirmation or recovery of possession of land on establishment of title. The disputed property is one-and-a-quarter annas share of taluk Ramprosad which bears touzi No. 1631 of the Bakerganj Collectorate. In respect of seven-and-three-quarters annas state of the entire taluk, a separate account had been opened in the Collectorate, of this share, four annas belonged to the zemindars of Kirtipasa with whom we are not concerned here, and three and-three-quarters annas to the Guhis, who are the sixth and seventh defendants in this litigation Of the residuary share, one-and-a-quarter anna belonged to Ellen Jolly, three-and-a-half annas to the Boses who are the second, third and fourth defendants m this suit, and another three-and a-half annas share to the Guhas, who are the sixth and seventh defendants. The plaintiff purchased the share of Ellon Jolly on the 7th February, 1895, and, at the time of the events which have led up to this litigation, he was the proprietor thereof Before the conveyance in favour of the plaintiff, Ellen Jolly had, on the 24th May 1888, created a tenure in respect of her share in favour of Ambica Charan Guha (now represented by the sixth and seventh defendants) and Manikyamali Bose (the predecessor-in-interest of the second and third defendants) The rent was settled at Rs. 920, and out of this sum, the lessees undertook to pay into the Collectorate, on behalf of the lessor, a sum of Rs. 573, as revenue and cesses leviable in respect of his share of the taluk The position, consequently, was, that the second and third defendants were co-sharers of the plaintiffs and also tenure-holders under him, and were thus bound to pay cesses in respect of Ins share and their own share. The fourth and fifth defendants were co-sharers of the plaintiff and were bound to pay cesses in respect of their own share alone. The sixth and seventh defendants were co-sharers of the plaintiff and also lessees under him, and were thus bound to pay cesses in respect of his share besides their own share. The second and third defendants, however, in breach of their obligation, defaulted to pay the cesses due for the September instalment of the year 1912. The consequence was that, on the 23rd December 1912, the Collector made a certificate under the Public Demands Recovery Act, 1895. Notice was thereupon directed to issue under Section 10. On the nth March 1913 it was reported to the Collector that the notice had been duly served upon the defaulting proprietors. A distress warrant was thereafter issued on the 4th April 1913, and is stated to have, been served on the 20th April 1913. On the 2nd May 1913 the property in arrear was ordered to be sold, and a notice under Section 10 was again directed to issue on the judgment-debtors. On the 18th June 1913 notice was ordered to issue for settlement of sale proclamation under Order XXI, Rule 66(2) of the Civil Procedure Code, 1908; this notice, it is said, was served on the 24th June 1913. On the 24th July 1913 the sale proclamation was ordered to issue. The sale proclamation is alleged to have been served on the 8th August 1913. On the 30th September 1913 the property was put up to sale by the Collector. The first defendant Sen was the sole bidder present, and he bought the property for the sum of Rs. 82-10-3 which was the amount due on the certificate. The sale was confirmed on the 1st December 1913. The sale-certificate was granted on the 7th July 1914. The purchaser got his name registered in the Collectorate on the 21st July 1914. He applied for delivery of possession to the Collector on the 15th January 1915; the order for issue of writ was made on the 8th April 1915 and possession was delivered by beat of drum in the customary manner on the 25th April 1915. The plaintiff thereupon instituted the present suit on the 26th September 1916 for confirmation, or recovery of possession on the allegation that the proceedings were throughout fraudulent and had been controlled by the second and third defendants, who had managed to purchase the property in the name of the first defendant. The Subordinate Judge has decreed the suit. He has held, first, that the second and third defendants deliberately defaulted to pay the Government dues; secondly, that they have purchased the disputed share, which is worth at least Rs. 5,000, for an insignificant sum; thirdly, that the notice under Section 10 of the Public Demands Recovery Act, 1895, was not duly served and that the proceedings were consequently without jurisdiction; fourthly, that the proceedings, specially those subsequent to the sale, were fraudulent and were concealed from the plaintiff. On the present appeal, the first defendant has assailed these conclusions as erroneous in fact and in law.
2. As regards the first point, we feel no doubt that the Boses deliberately defaulted to pay the Government dues. It was their duty, as tenure-holders under the plaintiff, to pay the cesses due on his share; it was also their duty to pay the cesses in respect of their own share. They intentionally withheld payment so that the property might be brought to sale : they must accordingly be deemed to have intended what they must have known would be the normal consequence of their default.
3. As regards the second print, the Subordinate Judge has found that the purchase at the sale held by the Collector was made nominally by the first defendant, but really for the benefit of the Boses. We see no reason to doubt the correctness of this conclusion. We have been pressed with the view that, as observed by lord Shaw in Muhammad Mahbub Ali Khan v. Bharat Indu 53 Ind. Cas. 54 : 23 C.W.N. 321 : (1919) M.W.N. 507 (P.C.), the Court must rest its decision, not upon suspicion but upon legal evidence established by legal testimony. But the Court need not approach the transaction with that scrupuluous rigour which, in other systems of jurisprudence, may demand the existence of the clearest positive evidence that the ex facie owner of a property holds the same for the interest of another. It may further be conceded that, as observed by Mr. Amir Ali in Nrityamoni Dassi v. Lakhan Chunder Sen 33 Ind. Cas. 452 : 43 C. 660 : 20 C.W.N. 522 : 30 M.L.J. 529 : (1916) 1 M.W.N. 332 : 3 L.W. 471 : 18 Bom. L.R. 418 : 24 C.L.J. 1 : 20 M.L.T. 10 (P.C.), the vital test in cases of this class is, what is the source from whence the consideration came see also Bilas Kunwar v. Desraj Ranjit Singh 30 Ind. Cas. 299 : 42 I.A. 202 : 37 A. 557 : 22 C.L.J. 516 : 19 C.W.N. 1207 : 29 M.L.J. 335 : 2 L.W. 830 : 18 M.L.T. 248 : 13 A.L.J. 991 : 17 Bom. L.R. 1006 : (1915) M.W.N. 757 (P.C.) and Parbati Dasi v. Baikuntha Nath Das 22 Ind. Cas. 51 : 19 C.L.J. 129 : 18 C.W.N. 428 : 15 M.L.T. 66 : (1914) M.W.N. 42 : 12 A.L.J. 79 : 16 Bom. L.R. 101 : 26 M.L.J. 248 (P.C.), which recall the earlier pronouncements in Dhurm Das Pandey v. Shama Soondri Dibiah 3 M.I.A. 229 : 6 W.R.P.C. 43 : 1 Suth. P.C.J. 147 : 1 Sar. P.C.J. 271 : 18 E.R. 484 and Gopeekrist Gosain v. Gungapersaud Gosain 6 M.I.A. 53 : 4 W.R.P.C. 46 : I Sar. P.C.J. 493 : 19 E.R. 20. In the present case, however, the sum paid for purchase at the sale was so small that it might, without difficulty, have been provided by either the Boses or Sen, both of whom, it is conceded, are men of considerable means. The endeavour made by Sen to establish that he withdrew from the Bank a sum of Rs. 100 for the purpose has the appearance of an attempt to create evidence, and does not justify the inference that he must have provided the purchase-money. It need not further be questioned that, as pointed out in Upendra Nath Nag v. Bhupendra Nath Nag 32 Ind. Cas. 267 : 21 C.W.N. 280, the Court should take into consideration the question of possession. In the present case, however, the interval between the alleged delivery of possession and the institution of the suit is so short that the production of evidence of posses: ion of a conclusive character is hardly feasible. The entries in the official records, no doubt, stand, as might be expected, in the name of the person declared as the purchaser; that is a feature common to cases of this class and cannot be treated as a decisive factor. We must consequently examine the surrounding circumstances. It is undeniable that the Boses intentionally committed default. They knew that the inevitable consequence would be a sale of their share as also of the share of the plaintiff. They made no attempt whatever to pay up the small sum due, so as to avert the sale. They made no attempt to offer bid* at the sale. They took no steps to have the sale set aside either by application to the Collector or by recourse to a suit. The first defendant opportunely made his appearance on the scene. He had no connection with the property. He could not explain how he was apprised of the impending sale; he still denies that he is a habitual frequenter at Collectorate sales, in the expectation of an opportunity to make speculative purchases. He had fortunately no competitors at the sale and was able to buy a valuable property for less than a fiftieth of its value. We agree with tie Subordinate Judge that, in such circumstances, the inference might legitimately he drawn that the Boses purchased the property in the name of Sen, and they have not moved an inch with a view to challenge the propriety of the sale, because their interest has not teen affected by the event. A sale so contrived cannot prejudice the interest of the real owner. A co-sharer who has defaulted to pay the Government dues and has thereby brought about the sale of the estate, cannot be premitted, if he purchases the estate at the sale, to hold it for his own benefit to the exclusion of his co-owner; see Ram Prosad Singh v. Pawan Singh 21 Ind. Cas. 354 : 18 C.L.J. 97; Janki Singh v. Debi Nandan Prasad 7 Ind. Cas. 772 : 15 C.W.N. 776; Harendra Lal Roy v. Puma Chandra 14 Ind. Cas. 368 : 15 C.L.J. 132; Faizar Rahman v. Maimuna Khatun 20 Ind. Cas. 510 : 18 C.L.J. 111 : 17 C.W.N. 1233. The view that a joint tenant who deliberately makes default in payment of the Government revenue due on account of his share, should not be allowed to use the machinery provided by law for the realisation of the dues of the State to injure the interest of his co-sharer, has now teen approved by the Judicial Committee in the case of Deonandan Prasad v. Janki Singh 39 Ind. Cas. 346 : 44 I.A. 30 : 44 C. 573 : 25 C.L.J. 259 : 15 A.L.J. 154 : 32 M.L.J. 206 : 21 C.W.N. 473 : 1 P.L.W. 294 : (1917) M.W.N. 254 : 21 M.L.T. 240 : 5 L.W. 526 : 19 Bom. L.R. 410 (P.C.), which overruled the decision in Doorga Singh v. Sheo Pershad Sineji 16 C. 194 : 8 Ind. Dec. (N.s.) 129 and affirmed the decision in Janki Singh v. Debi Nandan Prasad 7 Ind. Cas. 772 : 15 C.W.N. 776. The position is similar when a tenant, in violation of his agreement, defaults to pay, on behalf of his immediate landlord, the dues of the superior holder and thereby brings about a sale of the interest of his landlord; see Harendra Lal Roy v. Salimullah 7 Ind. Cas. 21 : 12 C.L.J. 336; Nawab Sidhee Nuzur Ally Khan v. Rajah Ojoodhyaram Khan 10 M.I.A. 540 : 5 W.R.P.C. 83 : 1 Suth. P.C.J. 635 : 2 Sar. P.C.J. 198 : 19 E.R. 1076; Sreenath Ghose v. Huronath Dutt Choudhury 18 W.R. 240 : 9 B.L.R. 220 and other cases reviewed in Uma Charan Mandal v. Midnapore Zemindary Co. 26 Ind. Cas. 182 : 20 C.L.J. 11 : 19 C.W.N. 270, which was reversed by the Judicial Committee on a different point, Midnapore Zemandary Co. v. Uma Charan Mandal 52 Ind. Cas. 497 : 24 C.W.N. 201 : 37 M.L.J. 199 : 17 A.L.J. 1004 : (1919) M.W.N. 817 : 26 M.L.T. 489 : 22 Bom. L.R. 7 : 11 L.W. 371 (P.C.); see also Salish Kantha Roy v. Satis Chandra 55 Ind. Cas. 689 : 30 C.L.J. 475 : 24 C.W.N. 662. The essence of the matter is that the co-owner or the lessee who thus acts in breach of his obligation, contractual or fiduciary, cannot be permitted to profit by his own wrong to the determent of the person whose interest it was his duty to protect. From this point of view, the plaintiff is clearly entitled to succeed in this litigation.
4. As regards the third point, the Subordinate Judge has held that the notice issued under Section 10 of the Public Demands Recovery Act, 1895, was not served upon the plaintiff. His view is amply justified by the evidence on the record. The evidence of service is not only unsatisfactory, but is calculated to give rise to grave suspicion as to the genuineness of the proceedings. There is no escape from the conclusion that though the return sets out that service was effected on the plaintiff personally on the 25th February 1913 at a place called Bakai, he was on that dale at Dacca.
5. We hold, accordingly, in concurrence with the Court below, that the allegation of service of notice under Section 10 is entirely false. The legal consequence of such emission to serve the notice was determined by a Full Bench of this Court in the case of Puma Chandra Chatierjee v. Dinabandhu Mukerjee 34 C. 811 : 5 C.L.J. 696 : 2 M.L.T. 371 : 11 C.W.N. 756 (F.B); see also the decision of the Judicial Committee in Mahomed Abdul Hal v. Gujraj Sakai 20 I.A. 70 : 20 C. 826 : 6 Sar. P.C.J. 291 : 17 Ind. Jur 271 : 10 Ind. Dec. (N.S.) 555 (P.C.); affirming Gujraj Sahai v. Secretary of Stale 17 C. 414 : 8 Ind. Dec. (N.S.) 815 (P.C.) and Baijnath Sahai v. Ramgat Singh 23 I.A. 45 : 23 C. 775 : 7 Sar. P.C.J. 1 : 12 Ind. Dec. (N.S.) 514 (P.C.); affirming Baij Nalk v. Ramgat Singh 5 C.L.J. 687. The decision of the Full Bench shows that when notice has not been served under Section 10 of the Public Demands Recovery Act, 1895, the sale must be deemed to be a nullity, a sale wholly without authority. In such circumstances, the plaintiff need not ask that the sale be set aside; he is entitled to recover possession upon the footing that the sale has not affected his title, and the suit is governed by Article 142 of the Schedule to the Indian Limitation Act: see also Mohiuddin v. Pirthichand Lal Choudhury 31 Ind. Cas. 664 : 19 C.W.N. 1159. This renders inevitable the conclusion that there is no answer to the claim put forward by the plaintiff. The defendant-appellant has consequently been driven to urge that as the sale in this case was held on the 30th September 1913 after the Public Demands Recovery Act, 1913, had come into operation on the 1st July 1913, the position of the plaintiff must be tested with reference to the provisions of the Statute of 1913 and not to those of the Statute of 1895. This view is clearly untenable. The Public Demands Recovery Act, 1913, cannot be construed to have retrospective operation so' as to destroy rights which had previously accrued. The notice issued under Section 10 of the Public Demands Recovery Act, 1895, was not served, and yet the proceedings were carried on as if the notice had been served. The right thereupon accrued to the plaintiff to treat the proceedings as taken without jurisdiction and without legal authority. In such circumstances, the principle enunciated by the Judicial Committee in Colonial Sugar Refining Co. v. Irving (1905) A.C. 369 : 74 L.J.P.C. 77 : 92 L.T. 738 : 21 T.L.R. 513 is clearly applicable. In that case the right of appeal from the Supreme Court of Queensland to His Majesty in Council was taken away by the Australian Commonwealth Judiciary Act and in lieu thereof was substituted an appeal to the High Court of Australia. It was ruled that a right of appeal to the King in Council in a suit pending when the Judiciary Act was passed and decided by the Supreme Court afterwards wa6 not taken away. Lord' Macnaghten observed as follows:
As regards the general principles applicable to the case, there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well-founded. On the other hand, if it be more than a matter of procedure; if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And, therefore, the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to well-known general principle that the Statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.
6. To the same effect are the decisions in Munjuri Bibi v. Akkel Mahmud 19 Ind. Cas. 793 : 17 C.L.J. 316 : 17 C.W.N. 889 and Gopeshwar Pal v. Jiban Chandra 24 Ind. Cas. 37 : 41 C. 1125 : 19 C.L.J. 549 : 18 C.W.N. 804. The decision of the Judicial Committee in Soni Ram v. Kanhaiya Lal 19 Ind. Cas. 291 : 401. A. 74 : 35 A. 227 : 17 C.L.J. 488 : 13 M.L.T. 437 : 17 C.W.N. 605 : 11 A.L.J. 389 : (1913) M.W.N. 470 : 15 Bom. L.R. 89 : 35 A. 227 : 25 M.L.J. 131 (P.C.), as to the law of limitation which governs the legal effect of an acknowledgment does not conclude the matter; it merely shows that the law of limitation applicable to a suit is prima facie the law in force at the date of the institution of the suit. But this is, as shown in Budhu Kumar v. Hafiz Hussain 30 Ind. Cas. 821 : 18 C.L.J. 274, subject to the reservation that there may be circumstances connected with the new Statute which furnish an indication that the legislature never intended it to affect retrospectively existing causes of action: Bisseshur Sanamat v. Jasoda Lal Chowdhury 19 Ind. Cas. 391 : 40 C. 704 : 17 C.W.N. 622; Makar Ali v. Sarfaddin 70 Ind. Cas. 606 : 36 C.L.J. 132 : 27 C.W.N. 183 : (1923) A.I.R. (P.C.) 85; Tirumalaisami Naidu v. Subramaniam Chettiar 45 Ind. Cas. 109 : 40 M. 1009; Mohideen Ibrahim v. Mahamed Meera Levvai 17 Ind. Cas. 437 : 23 M.L.J. 487 : 12 M.L.T. 431 : (1912) M.W.N. 1130 and Alaji Iseek Sahib v. Vengu Chetty 60 Ind. Cas. 66 : (1920) M.W.N. 736 : 12 L.W. 639. Similar observations apply to the decision of the Full Court in Jogodanund Singh v. Amrita Lal 22 C. 767 : 11 Ind. Dec. (N.S.) 509 (F.B.), which ruled that Section 310(A) of the Civil Procedure Code, 1882, had retrospective operation, contrary to the decision of the Full Bench in Lal Mohan v. Jogendra Chunder Roy 14 C. 636 : 7 Ind. Dec. (N.S.) 422 (F.B.); Uzir Ali v. Ram Komal 15 C. 383 : 7 Ind. Dec. (N.S.) 839 (F.B.) and Girish Chundra Basu v. Apurba Krishna Dass 21 C. 940 : 10 Ind. Dec. (N.S.) 1259 (F.B.). In the case before us, Section 37 of the Public Demands Recovery Act, 1913, bars the jurisdiction of the Civil Court only where the question relates to the making, execution, discharge or satisfaction ~ of a certificate duly filed under the Act, or relates to the confirmation or setting aside of a sale held in execution of such certificate. The expression 'certificate-debtor' used in Sections 36 and 37 is defined in Section 3(1) to mean a person named as debtor in a certificate filed under the Act; in this connection, reference should also be made to Section 7 which refers to certificates filed under Sections 4 and 6 of the Act. In our opinion, there is abundant indication in the provisions of the new Statute that it was not intended to have retrospective operation so as to extinguish or modify causes of action which might have already accrued by reason of failure to serve the notice issued under Section 10 of the Public Demands Recovery Act, 1895; for Section 36 must be read along with Section 3(1). We hold accordingly that the Subordinate Judge has correctly found that the plaintiff is entitled to relief on the footing that the sale which was held without service of notice on the plaintiff under Section 10 has not affected his title.
7. As regards the fourth point, the Subordinate Judge has held that the proceedings, specially those subsequent to the sale, were fraudulent and were concealed from the plaintiff. This is fully supported by the evidence. It is significant that no attempt was made to take delivery of possession until more than a year-and-a-half had elapsed from the date of the auction-sale, and the purchaser did not pay the Government Revenue until two years after his alleged auction-purchase. The intention plainly was that more than a year should elapse after the sale, so that if a suit should be brought, it might. be met by the bar of limitation under Section 36 of the Public Demands Recovery Act, 1913. But even if that Statute had been applicable, Section 56 would have entitled the plaintiff to the benefit of Section 18 of the Indian Limitation Act. We feel no doubt that the view taken by the Subordinate Judge on this part of the case, as on the others, is correct.
8. The result is that the decree of the Subordinate Judge is affirmed and this appeal dismissed with costs payable by the appellants, to the plaintiffs-respondents.