1. This is an appeal from the decision of the Subordinate Judge, Burdwan, dismissing a suit to set aside a sale for arrears of revenue under Act 11 of 1859, on the grounds that it was irregular, collusive and fraudulent, or in the alternative for a declaration that the principal defendants who are in possession of the properties, are bound to re-convey them to the plaintiff deities. The properties in suit are dewatter lands appertaining to touji No. 5000 of the Burdwan Collectorate and held in patni right by the Raneegunj Coal Association, defendant 1, in the suit. The plaintiff is a shebait of the Thakurs, the superior landlords. The pro forma defendants 6 to 34 are also shebaits. Principal defendant 2, Messrs. Kilburn and Co., are the managing agents of the Coal Company, and their muktear or agent, Jagatpati Bhattacharji, is defendant 4. Defendant 5, Sripatti Dutta, is one of the shebaits of the Thakurs.
2. The case outlined in the plaint was that the patnidar defendant 1 made default in payment of his rents. The plaintiff and pro forma defendants 15 and 16 wrote demanding payment of arrears, and requesting the defendant company to pay the Government revenue and save the property from sale. The Company undertook to pay the revenue and did so for some time. Ultimately however, they failed to make a deposit and on 29th March 1929 touji No. 5000 was sold for arrears of revenue, and purchased by Kilburn & Co. on behalf of the Raneegunj Coal Association, through the muktear Jagatpati for a sum of Rupees 4800. Subsequently, Messrs. Kilburn & Co. sold part of the property, the Shaha-bad pergana, to the wife of Jagatpati who is defendant 3 in the suit, as ostensible purchaser, the real owner being defendant 5, the co-shebait of the plaintiff. It was alleged that all these transactions were collusive and fraudulent, and the outcome of an agreement between the managing agents, the Coal Company, the muktear Jagatpati and the shebait defendant 5 to get possession of the property under colour of the processes of law. In the Court below the substantial' issues contested were Issues 4, 5, 6 to 10 and 15. Issue 6 raised the question of collusion, fraud and suppression of sale notices. Issue 9 was whether defendant 5 was a bona fide purchaser for value. Issue 8 was whether the sale itself was legal and regular. All these questions were discussed together by the learned Judge in the Court below.
3. His definite findings were that there was no fraud on the part of the defendant company, and no evidence of a wilful default on their part at the instigation of defendant 5. He held further that there was nothing to justify a finding that there was any understanding between defendants 4 and 5 to the effect that the former would influence the company to sell part of the property, and nothing to support the position that the company was a party to any such arrangement or purchased on the basis of it. The Judge has also held, on this part of the case, that the plaintiff? failed to establish that the purchase by defendant 3 was a benami transaction. In view of the position taken up on behalf of the appellant at the hearing of the appeal before us, it is unnecessary now to consider these findings in any great detail, inasmuch as the case of collusion between the patnidars, the purchaser of the Shahabad pergana and defendant 5 has not been pressed before us. We need only say that we agree with the findings of the Court below on the questions of fact pertinent to the issues-above mentioned. The position taken up on behalf of the plaintiff in the appeal before us is as follows: The company had covenanted to pay the revenue on behalf of the plaintiff landlords and failed to do so, therefore the sale should be set aside. Alternatively, there was a duty cast upon them to make the payments which they failed to perform. Finally they had instructed their agent, Jagatpati, defendant 4, to make the payment necessary to save a sale, for arrears of revenue. He omitted to do so, and the company cannot take advantage o the fraud of their own agent and retain the property. This leads us to a consideration of Issues 4 and 5 in the suit, which are as follows:
4. Did the defendant company undertake express sly or impliedly to pay the revenue of touji No. 5000, or assume any obligation or duty to pay it?.
5. Did the company become a trustee of the Thakurs or shebaits or was any fiduciary relation created between them?
4. It is abundantly clear from the evidence in the case, which is neither long nor complicated, what the position of the parties-actually was. The Coal Company holds a patni lease of the lands of touji No. 5000 at, a rent of Rs. 355 odd. The plaintiffs-thakurs are the superior landlords, and: there are more than 30 shebaits who have-been quarrelling among themselves for a quarter of a century. One result of this has been that since 1334 B.S. there has been no karta shebait, or manager of the dewatter property, and we get it from the plaintiff shebait that he knows of no arrangement for the payment of revenue, that he paid no revenue himself for any of the toujis of the dewatter estate, and that all the toujis have been sold for arrears of revenue. The documentary evidence on the other side further elucidates the position. Between December 1927 and the beginning of January 1929, the company made a series of deposits to prevent the sale of the superior interest for arrears of revenue : see Ex. C series and Exs. D to D-3. On 4th January 1928 the plaintiff shebait and two others wrote to the company asking them to pay up arrears of rent in order to enable the shebaits to pay the revenue, or to deposit in the Collectorate the amount necessary to save the sale : Ex. 1 in the suit. On 7th January the company replied that they had no objection to pay rent on proof that their correspondents had been appointed to receive it, but pointed out that they had not got receipts for the rent of three kists of 1334 B.S. paid to Akhil Nath Datt, the last karta shebait. On 7th January 1929, the company wrote to their agent Jagatpati authorizing him to deposit arrears of revenue on the property, for which it was then being put to sale, but the latter asked for particulars of the property with a view to considering if it should be purchased next time : Ex. C-3. The property was sold for arrears on 27th March 1929 and bought by the company.
5. Now there is no duty east upon the patnidar qua patnidar to intervene for the protection of the superior interest, nor can it be said that the fact that he did so, in his own interest, creates any duty, or constitutes any express or implied undertaking to continue to do so. What can be gathered, from the correspondence between the parties is that the company acknowledged a liability to pay rent to whomsoever was authorized to receive it, and on receipt of legal quittance. There was no agreement, express or implied, that they would make themselves responsible for the revenue, and it is a fair inference from the terms of the letter Ex. C-3 that they were contemplating as an alternative to continue revenue deposits, the purchase of the property at a revenue sale. This indeed was the course finally adopted. We are therefore in entire agreement with the learned Judge in holding that there was no undertaking, express or implied, on the part of the company to pay the revenue and that the latter was not either a trustee, or in any fiduciary relationship in regard to the thakurs or the shebaits.
6. It was next urged before us that the defendant Jagatpati, the muktear of the company, had omitted to make the payment which he was instructed to make by the letter Ex. C-3, and so brought about the sale. On this branch of the case, the legal argument was that the company could not take advantage of the wrong done by their own agent, and retain the property. On the facts, the evidence of Jagatpati is that he did make the payment as instructed. It is to be noted that the date of Ex. C-3 is 7th January 1929, so that the deposit referred to therein must have been for arrears on account of which the property was then liable to sale. As the evidence shows, there had been four previous deposits by the Coal Company in order to save the property and the evidence on behalf of the defendants is that this practice was stopped because of an objection by the auditor of the company. We are accordingly satisfied that no case has been made out, that there was any dereliction of duty, amounting either to misconduct or fraud on the part of the muktear Jagatpati in carrying out the directions of the company. In view of this finding, no question of law arises.
7. It may however be noted in passing that the cases cited before-us in support of the position that omission on the part of the agent to carry out instructions invalidates the sale to the principal, do not appear to have any application. Reference was made to Lalit Mohan v. Manoranjan Ghosh (1923) 10 A.I.R. Cal. 13, which is an authority for the proposition that a cosharer or lessee who acts in breach of his obligation, contractual or fiduciary, cannot be permitted to profit by his own wrong to the detriment of the person whose interest it was his duty to protect. In the present case there is no contractual obligation to pay revenue, and we have held in agreement with the Court below that no fiduciary relationship exists between the parties. In Deonandan Prasad v. Janki Singh (1916) 3 A.I.R. P.C. 227, the other case referred to, it was found that the agents of a minor mortgagee of a separately owned share intentionally defaulted, whereupon it was held that the property must be held for the benefit of all the cosharers and the mortgagee. It would appear however that in that case, the ratio decidendi was the rights of co-owners inter se, and there was a definite stipulation that the mortgagee should pay the revenue. The plaintiff's prayer in the alternative, made in the suit, to which inference has already been made at the outset, for reconveyance of the properties tin suit by the principal defendants, was considered by the trial Court under Issue 10. The prayer made was in these terms : If for any reason the said sale be not set aside, it may be found that the two defendant companies as well as the principal defendants are bound to make a reconveyance of the properties in suit to the plaintiff deities and orders might be passed for execution and registration of the necessary documents for that reconveyance. This prayer was founded on para. 8 of the plaint in which it was definitely stated that if for any reason aforesaid the sale be not set aside, the deities as well as the shebaits are entitled to get a reconveyance of properties from the two defendant companies and, if necessary, from all the principal defendants.
8. The charge of fraud and collusion was levelled against all the principal defendants at the trial of the suit; and in the evidence of the plaintiff it was distinctly mentioned that the purchase by defendant 1 was a bona fide purchase and that it was merely inferred from the successive events and circumstances that defendants 1, 2, 3, 4 and 5 acted in collusion with one another. It is worthy of notice however that in the appeal before us, the charge of fraud and collusion was entirely withdrawn so far as defendants 1 and 2 were concerned and was concentrated upon the muktear, defendant 4, who, it was said, as agent was guilty of gross fraud and his principals were therefore responsible for the act of their agent. The case against defendant 4 arising out of payment of Government revenue at previous periods and non-payment of the same at the crucial point of time has already been dealt with. It is necessary only to add that the plaintiff has not established any case of fraud or collusion as between the parties, on whom a direction of reconveyance, as prayed, might possibly be made by a Court. Reference in this connexion was made to the cases in Nawab Sidhee Nuzur Ally v. Ojoodhayaram (1863-66) 10 M.I.A. 540, Harendra Lal v. Salimullah (1910) 12 C.L.J. 336 and Satish Kanta v. Satis Chandra (1920) 7 A.I.R. Cal. 26. With reference to these decisions, it has only to be pointed out that in a case in which it is found to be established that a co-owner or lessee, who had acted in breach of his obligation, contractual or fiduciary, could not be permitted to profit by his own wrong to the detriment to the interest of the party which it Was his duty to protect. In the case before us, the charge was distinctly one of fraud and collusion as between the parties concerned, who had, according to the plaintiff, brought about the sale in arrears of revenue by an arrangement. If the plaintiff had succeeded to establish a position like that, he would have been entitled to the relief from the Court, but he has on the materials placed on record failed to make out the case he wanted to establish and the cases cited on his behalf do not assist him at all. This disposes of the question of reconveyance as raised in the Suit by Issue 10 and as raised before us in appeal. The last question for decision is that raised in Issue 15 in the suit: 'Were there any arrears as alleged? Had the Collector jurisdiction to sell the estate?'
9. There was no allegation in the plaint originally filed that there were no arrears of revenue, and the point was taken by way of amendment, nearly two years after the institution of the suit. The matter was put by the plaintiffs in the following way. The Government brought the touji No. 5000 to sale on 27th March 1929 for arrears of the January kist of that year. Revenue payable for that kist cannot be regarded as arrears before 1st February 1929, and the last date of payment of those arrears was 28th March 1929, before which under the Act the property could not be sold. The defendant alleged that the sale was for recovery of revenue for the kists of September, October and November 1928, for which the last date of payment was 12th. January 1929. The question then is one of fact and the learned Judge in the Court below decided that the sale was for arrears of the September to November kists of 1928. On full consideration of the evidence, we agree with the conclusion of the learned Judge.
10. The amount of the arrears for which the property was sold was Rs. 54. The doul Ex. A shows that this was the amount of the kists from September to November. The touji ledger, Ex. C, shows that the last date of payment of this kist was 12th January. Further, the kisttibandi shows that arrears after the end of December 1928 amounted to Rs. 78. The plaintiff's case appears to be based on the sale notification, Ex. 2, and the delivery order, which specify a sale for arrears of revenue on account of the January kist of 1929. The expressions used in these documents are somewhat ambiguous, but in view of the definite evidence afforded by the other documents referred to above, by the actual sum specified as the arrears for which the touji was sold, and the fact that the plaintiffs have been unable to show that the revenue for September-November has been paid, we agree with the Court below in holding that these expressions, and those in Exs. H and R series must be taken to mean that the sale was for arrears of revenue for which the last date of payment was 12th January 1929, as fixed under Section 3 of Act 11 of 1859. On the materials before us, we hold that the sale was not without jurisdiction, and cannot be set aside. This appeal accordingly fails and is dismissed with costs.
11. I agree.