1. The subject-matter of the litigation, which has culminated in this appeal, is a revenue paying estate bearing Touzi No. 2402 on the revenue-roll of the Collector of the 24-Perganahs. The annual revenue of the estate, which comprises the villages Atpur and Panditnagar, is Rs. 398-9-0. Default was made by one of the joint proprietors in the payment of revenue due on his share for the September instalment of 1914. At that time, a two-thirds share in the proprietary interest was vested in the plaintiffs and the remaining one-third in the father of the 4th defendant who, it is alleged, had granted a mortgage of that share to the plaintiffs. The entire estate was exposed for sale by the Collector for the recovery of the arrears due (Rs. 26-4-8) and was purchased by the 1st defendant on the 8th January 1915 for Rs. 9,200. The father of the 4th defendant, Hemadakantha Ray, in whose share the default had taken place, died a day or two later. The plaintiffs appealed to the Commissioner, but their appeal was dismissed on the 1st June 1915. On the 18th August 1915 the plaintiffs instituted the present suit for declaration that the sale was illegal and had been brought about by fraud on the part of the first three defendants; they prayed accordingly that the sale might be cancelled or a conveyance executed in their favour by the ostensible purchaser on receipt of the purchase money. The 1st defendant was Satischandra Chatterjee, the auction-purchaser on record. The 2nd defendant was Akshaykumar Chatterjee, alleged by the plaintiffs to have been an old enemy of theirs with whom they were at that time involved in litigation. The 3rd defendant was Sitanath Das, manager of Hemadakantha Ray, who was charged with the duty to pay Government revenue on behalf of his master. The plaint asserts that these three defendants entered into a conspiracy and decided to purchase the property at the auction sale in the name of the 1st defendant. The plaint further charges that the default was wilful and deliberate, made with a view to bring about the sale to the injury of the plaintiffs. The suit was defended by the 1st defendant alone, who filed his written statement on the 10th January 1916. He repudiated all the material allegations contained in the plaint, denied the charge of conspiracy, professed complete ignorance of the alleged deliberate default and fraud, and claimed to be the sole purchaser of the property, entirely on his own account, at the revenue sale. Upon these pleadings, the issues were framed on the 15th January 1916; the fifth issue raised the fundamental question in the suit: 'Was the revenue sale brought about by collusion and fraud on the part of the defendants and was it legal and valid?' The Subordinate Judge answered this question against the plaintiffs and dismissed the suit. On the present appeal, which has been preferred by the plaintiffs, the only defendant who has entered appearance is the auction-purchaser Satischandra Chatterjee; the 2nd and 3rd defendants have been absent as they were throughout the proceedings in the Court below. After the appeal had been heard for some days, it became clear that the evidence of the 2nd defendant was necessary for the determination of the matters in controversy. Both the parties requested that he as well as his sons who had, according to the other evidence on the record, taken part in the transactions under investigation might be examined. The Court accordingly directed summonses to issue upon Akshaykumar Chatterjee and his three sons Taradas Chatterjee, Syamadas Chatterjee and Kalidas Chatterjee, and liberty was given to both sides to cross-examine these persons. Akshay, Taradas and Syamadas were examined but no questions were put to Kalidas. We have now to determine the points in dispute on the evidence taken by the Subordinate Judge and the Additional evidence taken in this Court upon the joint request of both parties. As we shall presently see, there is direct conflict of oral testimony upon the fundamental question in issue; it is consequently necessary to ascertain the points which are either admitted or proved beyond the possibility of controversy and then to test the allegations of the witnesses by reference thereto.
2. It is indisputable that default was deliberately made by the 3rd defendant in the payment of Government revenue due on the share of his master Hemadakantha Ray, the predecessor-in-interest of the fourth defendant. As the Subordinate Judge finds, the object was to injure the plaintiffs and the step was taken in collusion with the 2nd defendant, who, it was arranged, would purchase the entire estate, free from incumbrances, at the revenue sale. There is some discrepancy in the evidence as to the exact proportion in which the spoil was to be divided; the details of the proposed distribution are, however, not very material for our present purpose, and we need only observe that the story seems plausible that the 3rd defendant looked forward to a share for himself and another share for his master. The complicity of the 2nd defendant in what the Subordinate Judge calls a 'nefarious plan,' is proved beyond challenge. The oral evidence shows that he was approached long before the default was made, and there is unimpeachable contemporary documentary evidence as to what followed. On the day before the sale Taradas, the son of the 2nd defendant Akshay, sent the following telegram to his father who at the time was at Puri:
Kumars Satis, Kshiroda, Hemada are joint proprietors of Touzi No. 2402, Mahal Atpur, 24-Perganahs, on Ganges near Kidderpur. Hemada did not pay revenue and will cause the sixteen annas Mahal to be sold to morrow. Hemada represents total income as Rs. 1,200 and requests us to buy the same in auction within ten thousand rupees and sell half to him. Going out to ascertain facts. Wire permission.
3. This telegram was sent at 12-45 P.M. and reached Puri at 1-30 p.m. We do not know the exact time when it reached the addressee, but at 3-30 p.m. Akshay despatched the following reply:
May bid ten or twelve thousand if the income is as you represent.
4. This message reached Calcutta at 4-40 p.m. and would in due course be delivered to Taradas the same afternoon. What followed is a matter of controversy. The plaintiffs allege that the 3rd defendant Sitanath and Syamdas, another son of Akshay, visited the 1st defendant Satis (who it is asserted is distantly related to Akshay), apprised him of the impending sale and made arrangements for purchase in his name at the auction. The evidence on the side of the plaintiffs mentions another conference on the next morning. These conferences are, as might be anticipated, denied by Satis, and we shall presently return to the question. The fact remains that at the sale which was held by the Collector on that date (the 8th January 1915) bids were offered by two persons only, namely, by the 1st defendnat, Satis Chandra Chatterjee who was present, and by Akshay Kumar Chatterjee, the bids on whose behalf were offered by his son Syamadas. The property was knocked down to Satis Chandra Chatterjee for Rs. 9,200.
5. Some weeks later, when it became known that the estate had been sold for arrears of revenue, endeavours were made by the proprietors of adjoining estates, namely, Maharaja Sir Prodyot Kumar Tagore and Raja Kisorilal Goswami to purchase the property from the auction purchaser on payment of a substantial profit to him. That such negotiations were made we feel no doubt whatever, and we shall at this stage examine the evidence as to what transpired at the time. Maharaja Tagore has been examined on commission and definitely asserts that he attempted to purchase the property from the auction purchaser Satis Chandra Chatterjee, to whom he sent message to this effect through his officer Rajendra Nath Banerjee. The Maharaja is clear that Satis Chandra Chatterjee came to see him in this connection and said that he was unable to state anything without consulting Akshay, and his other partners. The wild suggestion was made in cross-examination that the Maharaja might have been imposed upon by false personation, but there is no indication that the plaintiffs were in any way connected with the intended purchase by the Maharaja. On the other band, the description which the Maharaja gives of Satis as a stoutish man who 'stood rather uncomfortably' fits with the personal appearance of Satis, who had to be examined on commission on account of his malady (bydrocele). We see no reason to doubt the accuracy of the testimony of the Maharaja, He is supported by Rajendra Nath Banerjee, who appears to be a perfectly truthful witness. He adds that when he pressed Satis, the latter said that he would have to consult with one or two persons who had also interest in the property purchased, and when pressed much took him to the house of another person (some Chatterjee) on that very day. Rajendra waited in the carriage for sometime while Satis went inside the house; Satis returned with the news that Chatterjee was unwilling to part with the property. This evidence, if believed, unquestionably strengthens the case for the plaintiffs in a considerable measure. The probability of the truth of these allegations is enhanced by the evidence of the negotiations for a sale to Raja Kisorilal Goswami. His chief superintendent Asutosh Bhattacharyya has been examined on behalf of the plaintiffs. He testifies that attempts were made on behalf of his master to purchase the property from Satis Chandra Chatterjee. At first he sent his Muktear Tarapada Datta, but as the negotiations did not progess satisfactorily, he himself went to Satis in the middle of May. Satis stated that he would have to consult Akshay Chatterjee, whereupon the witness went to Akshay on three or four occasions. At first Akshay said that he would give his opinion after the termination of the proceedings before the Commissioner for cancellation of' the sale: later, Akshay said that he could sell the property for Rs. 50,000. The witness was prepared to offer Rs. 25,000 only. Asutosh approached Akshay once or twice later on, but as the present suit had been instituted, he was asked to wait till its disposal. We have thus the combined testimony of Maharaja Tagore, his officer Rajendra Nath Banerjee, and Asutosh Bhattacharyya, the chief superintendent of Raja Kisorilai Goswami, that shortly after the sale, Satis Chandra Chatterjee was approached with a request to sell the property, that Satis Chandra stated that he could not act alone and had to obtain the consent of Akshay Kumar Chatterjee, and that the latter when approached demanded a price which the intending purchaser was not prepared to pay. No intelligible theory has ever been suggested why men of the status which these witnesses occupy should conspire to invent a falsehood of this description. On the other hand, their story seems exceedingly probable. There is not much room for doubt that the property had been sold at a price very much lower than its real value. Jute mills had been established in the neighbouring localities and demand for the land was insistent; both Maharaja Tagore and Raja Goswami were willing to pay down Rs. 25,000 to Rs. 30,000 for property which a few weeks earlier had been sold free of all encumbances for Rs. 9,200 only. It is equally significant that in this Court the defendant promptly rejected an offer by the plaintiffs to pay double the purchase-money. In these circumstances, it is very likely that adjoining land-owners like Tagore and Goswami should negotiate for a purchase of the property and that the negotiations should have taken the shape described by these witnesses. On the other hand, what is the position taken up by Satis and Akshay? They completely repudiate the alleged negotiations and interviews and suggest that the story is absolutely mythical. We are not prepared to accept their bare denial in view of circumstances presently to be narrated.
6. It is indisputable that Akshay was anxious to purchase the property and was in league with the 3rd defendant. His son Syamadas was present at the sale under the instructions of his brother Taradas and offered bids on behalf of his father. It is said that this was a real contest and that by some mistake Syamadas got the impression that he had offered a higher bid than his rival Satis and consequently he stopped at Rs. 9,100, although his father was prepared to offer as much as Rs. 12,000. It is said, on the other hand, that this apparent contest was in substance fictitious, that Satis really had not sufficent money at his disposal to enable him to purchase the property and that the purchase was made in the name of Satis under a prearranged scheme for the benefit of Akshay, Satis and the 3rd defendant Sitanath. For the solution of the question in controversy, it is necessary to examine the position and conduct of Satis.
7. Satish Chandra Chatterjee is described as a habitual speculator who frequented the Collectorate and used to bid at almost all the revenue sales. His father left him a considerable sum of money and landed property. He managed to relieve himself of both cash and land, and, at the time when these proceedings took place, was heavily involved in debt. He was further addicted to drinking and irregular habits and is spoken of by the Subordinate Judge as rather a dangerous character. It is clear from the evidence that, on the date of the revenue sale, he had no money in band. His story is that on his way to the Collectorate, he borrowed a sum of Rs. 1,000 from his cousin Tarak Nath Banerjee. There is some discrepancy in the evidence as to the form which the loan actually took; the promissory note recites that the sum was paid to him by his aunt in six currency notes, one for Rs. 500, the other five for Rs. 100 each; on the other hand, the Chalan with which the money was deposited in the Collectorate mentions a currency note for Rs. 1,000, an entry which is penned through. The explanation offered by Satis for this entry is not quite satisfactory, but it may be assumed for the present that he took from his aunt the currency note for Rs. 1,000 when he went to the Collectorate. The Chalan was undoubtedly drawn up at first for Rs. 1,000 and was subsequently changed into one for Rs. 2,300. Satis, who was examined first on commission, did not make an attempt to explain these discrepancies which are no doubt calculated to excite some suspicion. But his witnesses who were examined later, after the original Chalan had been produced, developed the story that while the bids were in progress he realised that the money he had brought was insufficient to cover the amount of the preliminary deposit of one-fourth of the purchase-money, so he went with the permission of the Collector to fetch more money. He returned with Rs. 1,500 which he borrowed from his aunt. No promissory note, however, is produced for this amount, though one is said to have been executed. The existence of two entries in the Chalan, namely, an entry of Rs. 1,000 re-placed by an entry of Rs. 2,300, has not, in our opinion, been satisfactorily explained, and the story narrated by the witnesses as to the second loan of Rs. 1,500 is not convincing. On the other hand, the plaintiffs have made the very plausible suggestion that there was some secret arrangement between Satis and Akshay as to the proportion in which the purchase money was to be contributed and that although the details of this scheme have not been successfully unravelled, the alterations in the Chalan point to that conclusion. We may here refer to an incident which is said to have happened at the close of the sale. It is said that there was a dispute between Syamadas and Satis as to whose bid was the highest. Syamadas maintained that no bid had been offered higher than his, but the Collector decided against his contention. That the incident did take place need not be questioned, and the estimate we formed of Syamadas when he was examined in this Court fits in with the theory that he may probably have been under an erroneous impression as to whose bid was the higher; but even if this be assumed, it does not necessarily militate against the view that whatever appearances might have been preserved, there was no real competition at the sale. In this connection we must not overlook the statement made in cross-examination by Asutosh Bose, one of the Collectorate Poddars, that the impression left on his mind was that the three men (Sitanath, Satis and Syamadas) formed the same party and were conversing with one another at the time of bidding. But the difficulties which surround this part of the case are, if not actually enhanced, by no means diminished when we come to examine the question of the payment of the balance of the purchase-money. Satis had clearly no money at his disposal, though the balance, Rs. 6,900, had to be deposited within the date peremptorily prescribed by the Statute. The story here is that Satis again raised the money by a loan, this time from the Adhikaris who were related to him by marriage. This transaction is hedged round by suspicious circumstances: Satis executed a deed of agreement to sail his ancestral garden to the Adhikaris: the agreement was not registered and the garden itself was under acquisition by the Calcutta Improvement Trust; in other words, the agreement was to convey property which Satis was in reality incompetent to transfer. The result was that the property was not sold to his relations and they are alleged to have been re-paid out of the compensation awarded by the Trust. If all these circumstances are calculated to throw doubt on the genuineness of the successive transactions, that doubt is certainly not removed when Satis solemnly tells us that neither before nor after his alleged purchase, has he made any enquiry as to the estate, the lands comprised therein, the quantities of the rent paying and the rent free lands, and the names of holders of lands of the latter class. The impression left on our mind, upon a careful scrutiny of the circumstances of the case as disclosed in the evidence, is that Satis is not the only parson interested in the purchase. In our opinion, there is good ground for the theory, advanced by the plaintiffs almost immediately after the sale in their petition of appeal to the Commissioner, that Akshay Kumar Chatterjee has a substantial interest in the property, which was brought to sale in concert with him by the 3rd defendant and which he was manifestly anxious to capture. The story told by Priya Nath and Panchanan as to the interviews with Satis on the day previous to the sale and on the morning of that day cannot be summarily rejected as mythical. There was weighty reason why Sitanath should enlist the co-operation of a man in the position of Satis. The impending sale was to be effectuated by deliberate fraud. If Akshay purchased the property in his own name, the fraud would be easy to unravel; his well-known enmity with the plaintiffs would forthwith furnish a clue to the whole scheme. To make the situation safe, an apparent stranger had to be secured; Satis was specially suitable for the purpose, as he was a frequenter at these sales, although the number of occasions when ha successfully offered bids is not confirmed by independent evidence and has probably been exaggerated. No doubt, Satis and Akshay have resolutely denied that they have ever known each other previously, but little reliance can be placed on their tesimony. Akshay and his son Taradas, who were both examined before us, produced a very unfavourable impression on our minds. The denial of all knowledge of this litigation by Akshay was an obvious pretence and there can be no question that at least one of the notices from the Court, namely, that concerned with the injunction proceedings, was personally served upon him. The attitude of Taradas in the witness-box did not, we regret to say, inspire greater confidence, and he felt very uncomfortable when faced with the telegram which he had admittedly sent to his father on the 7th January 1915.
8. We have minutely scrutinised the evidence and considered all the circumstances of the case. We have not also lost sight of the wholesome rule that a Court of Appeal should be slow to differ from the primary Court on a question of estimate of oral testimony. See Lalljee Mahomed v. Dadabhai Jivanji Guzdar 84 Ind. Cas. 807 : 43 C. 833 : 23 C.L.J. 190 where the cases on the point are reviewed. Here, however, two important witnesses never appeared before the trial Judge and were examined on commission (Maharaja Tagore and the defendant Satis Chandra Chatterjee), while three other witnesses were for the first time examined in our presence at the request of both the parties. See the observations of Lord Collins in Imdad Ahmad v. Pateshri Partab Narain Singh 6 Ind. Cas. 881 : 14 C.W.N. 842 : 12 Bom. L.R. 419 : 7 M.L.T. 414 (P.C.) : 32 A. 241 : (1910) M.W.N. 118 : 87 I.A. 60. But we find ourselves wholly unable to accept the view taken by the Subordinate Judge. There if, in our opinion, no reliable evidence in support of the theory adopted by him that the 2nd and 3rd defendants have in this litigation helped the plaintiffs against the 1st defendant. On the other hand it is plain that the first three defendants are jointly interested in the purchase at the revenue sale, although the evidence does not enable us to determine the exact measure of the advantage reaped by each of them. Our conclusions may be summarised as follows:
(i) That default was deliberately made in the payment of revenue proportionate to the one third share of Hemada by Sitanath acting in concert with Akshay.
(ii) That such default was made for a fraudulent purpose, namely, to deprive the plaintiffs of their interest in the property.
(iii) That Satis was taken into confidence and was apprised of this scheme; the arrangement made was that his name should be used at the sale and the purchase made for the benefit of Akshay, Satis and Sitanath.
(iv) That though the exact extent of the advantage intended to accrue to each of the persons concerned in this fraudulent scheme cannot be determined, it is highly probable that Sitanath intended that the property should not be entirely lost to his master.
(v) That Satis has not paid the whole of the purchase-money and is not the only person interested in the property.
(vi) That after the completion of the sale, negotiations took place between Satis on the one hand and neighbouring landlords like Tagore and Goswami on the other, but the transfer could not be accomplished without the consent of Akshay who demanded a higher price than what the intending purchasers were prepared to offer.
9. The question next arise, what is the relief to which the plaintiffs are entitled on these findings. But before we discuss the point, we must refer briefly to an objection urged by the defendant. It has been contended that the plantiffs who allege fraud can succeed only on proof of the fraud as specified in the plaint and that no variation between pleading and proof can be allowed. Our attention has been drawn to the circumstances that while in the plaint it is asserted that the 3rd defendant committed the fraud, it is stated by some of the witnesses (Priyanath and Panchanan) that Hemada himself was also a party to the fraud. On a comparison of the allegations in the plaint with the stories as narrated by the witnesses, it transpires, however, that there is no variation upon one fundamental point, namely, that the fraud was effectuated by Sitanath; it is not very material whether Sitanath intended to benefit or injure his master and whether he acted as he did with the knowledge and concurrence of Hemada. Whatever divergence there may be upon this latter point, the fact remains that, as narrated by Priyanath, as early as June or July 1914 Sitanath with Priyanath approached Akshay and it was arranged that the property should be brought to sale and purchased in the name of Akshay. It cannot thus be seriously maintained that there has been an infringement of the rule formulated by Lord Westbury in Eshenchunder Singh v. Shamachurn Bhutto 11 M.I.A. 7 : 6 W.R.P.C. 57 : 2 Ind. Jur. (N.S.) 7 : 2 Sar. P.C.J. 209 : 20 E.R. 3 and by Sir Barnes Peacock in Mylapore v. Yeo Kay 14 I.A. 168 (P.C.) : 14 C. 801 : 5 Sar P.C.J. 50 that the determination in a cause should be founded upon a case either to be found in the pleadings or involved in or consistent with the case thereby made; nor can it be suggested that there has been any violation of the elementary rule of procedure laid down by Sir Barnes Peacock in Abdool Hoosein V. Charles Agnew Turner 14 I.A. 111 : 11 B. 620 (P.C.) : 5 Sar. P.C.J. 25 that a charge of fraud must be substantially proved as laid, so that when one kind of fraud is charged, another kind of fraud cannot, upon failure of proof, be substituted for it. We must further bear in mind that every variance between pleading and proof is not fatal: the Court must carefully consider whether, in the words of the Judicial Committee in Radha Mohun v. Jadoomonee Dossee 23 W.R. 369 : 3 Sar. P.C.J. 482 the objection is one of form or of substance. The rule that the allegations and the proof must correspond is intended to serve a double purpose, namely, first, to apprise the defendant distinctly and specifically of the case he is called upon to answer, so that he may properly make his defence and may not be taken by surprise, and, secondly, to preserve an accurate record of the cause of action as a protection against a second proceeding founded upon the same allegations. Tested from these points of view, the objection urged by the defendant proves to be groundless.
10. The question now requires consideration, can the purchaser, in view of the fraud whereby the sale has been brought about and wherein he has participated successfully, defend his title. We are of opinion that the answer must be in the negative. No doubt, the sale now impeached was brought about by deliberate default on the part of the agent of one of the co-sharers who was charged with the duty to deposit regularly the Government dues proportionate to his share. This circumstance does not, in our judgment, render inapplicable the principle enunciated by the Judicial Committee in the case of Deonandan Prasad v. Janki Singh 39 Ind. Cas. 346 : 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 : 44 C. 573 : 44 I.A. 30 (P.C.) where their Lordships formulated the valuable doctrine that due regard must be had to the relative position of co-sharers in respect of the payment of revenue and to the need of demanding from each such measure of candid dealing and good faith as will ensure that a co-sharer is not tempted to make a deliberate default with a view to ousting his co-sharers and appropriating to himself their common property. This overruled the contrary opinion expressed in Doorga Singh v, Sheo Pershad Singh 16 C. 194 and affirmed the principle recognised in a series of later decisions Faizur Rahaman v. Naimuna Khatun 20 Ind. Cas. 510 : 18 C.L.J. 111 : 17 C.W.N. 1233; 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. Purna Chandra Chatterjee 14 Ind. Cas. 368 : 15 C.L.J. 132. This view coincides with that a dooted in the Courts of the United States regarding the mutual relation of joint tenants and the acquisition by one of them of an interest in joint property by purchase at a public sale for recovery of State dues deliberately withheld (Black well on Tax Titles, Section 571, Black on Tax Titles, Section 282, Freeman on Co-tenancy, Section 158). In the case before us, the position of the purchaser is open to successful attack from another quarter. The sale here is collusive in the sense that the purchaser was pre arranged. The parties decided to utilize the stringent provisions of the revenue laws (framed for the speedy realisation of Government dues) for the accomplishment of their private fraudulent object. They put the machinery of the State in operation to cause injury to the plaintiffs and selected in advance the purchaser who was to hold the property for the benefit of himself and of his participators in the fraud. In such circum stances, as the Judicial Committee observed in Nawab Sidhee Nuzur Ally Khan v. Rajah Ooioodhyaram Khan 10 M.I.A. 540 at p. 557 : 5 W.B.P.C. 83 : 1 Suth. P.C.J. 635 : 2 Sar. P.C.J. 198 : 19 E.R. 1076 the Court will strip off all disguises from a case of fraud and lock at the transaction as it really is, because 'fraud is an extrinsic collateral act which vitiates the most solemn proceedings of Courts of Justice, and, in the words of Lord Coke, avoids all judicial acts, ecclesiastical or temporal.' In cases of this character, the Court holds that the sale has no higher effect than a private alienation, and the purchaser who has taken with notice of or is implicated in the fraud is compelled to re-convey the property to the rightful owners. This is plainly a rule of honesty and fair dealing; no party to a fraudulent transaction can be allowed to derive any benefit from it, and the Court is always reluctant to condone the fraud and to permit the participants therein to retain the advantage. Numerous instances of the application of this doctrine are to be found in our reports Chunder Nath Chowdhry v. Tirthanund Thakoor 3 C. 504 : 2 C.L.R. 147; Sreenath Ghose v. Huronath Dutt Chowdhury 18 W.B. 240 : 9 B.L.R. 220; Kishore Chunder Sein v. Kally Kinkur Paul Chowdhry 20 W.R. 333; Harendra Lal Roy v. Salimullah 7 Ind. Cas. 21 : 12 C.L.J. 336; Uma Charan Mandal v. Midnapore Zemindary Co. 26 Ind. Cas. 182 : 20 C.L.J. 11 : 49 C.W. 270. Consequently, in the case before us, the 1st defendant must be directed to execute a reconveyance in favour of the plaintiffs. This direction, however, can take effect only in respect of the two-thirds share owned by the plaintiffs, and cannot be legitimately extended to the one-third share owned by the 4th defendant. The representative of Hemada did not join as a plaintiff in this suit; she did not get herself transferred to the category of plaintiffs: nor did she, when the suit was dismissed by the Subordinate Judge, join in this appeal. The 1st defendant will consequently hold that one-third share, subject, however, to the claim, if any, of the plaintiffs under the alleged mortgage of the 24th July 1908. That mortgage, assuming it represents a real transaction, cannot be deemed to have been extinguished by the fraudulent sale, but the mortgage decree of the 4th December 1915 cannot be treated as conclusive against the 1st defendant, as he was not made a party to the mortgage suit, which was instituted on the 18th August 1915, after the revenue sale certificate had been granted to him on the 10th July 1915.
11. The result is that this appeal is allowed and the decree of the Subordinate Judge set aside. The suit is decreed in respect of a two-thirds share of the estate sold on the 8th January 1915. The 1st defendant is directed to execute a conveyance with regard to this share in favour of the plaintiffs on payment of a proportionate share of the purchase-money, i.e., Rs. 6,133-5-4. The plaintiffs, we understand, have not yet withdrawn from the Collectorate their share of the surplus sale proceeds. The entire sum in deposit in the Collectorate will accordingly be transferred to the Court of the Subordinate Judge to be dealt with by him under this judgment. The plaintiffs undertake to bring into Court any additional sum which, taken together with their share of the surplus sale-proceeds so brought in, may be required to make up the sum of Rs. 6,133-5-4. The time within which the additional sum is to be deposited will be fixed by the Subordinate Judge.
12. The decree will further declare that the 1st defendant will hold the remaining one-third share in the estate, subject to the dues, if any, of the plaintiffs under the mortgage of 24th July 1908. The plaintiffs are entitled to recover their costs both here and in the Court below from the first three defendants. The amount of Court-fees and hearing fees will be calculated only on two-thirds of the value of the suit and appeal.