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Sremati Kusum Kamini Debi and ors. Vs. Hara Sundar Majumdar and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal1195,97Ind.Cas.885
AppellantSremati Kusum Kamini Debi and ors.
RespondentHara Sundar Majumdar and ors.
Cases ReferredDeonandan Prasad v. Janki Singh
Excerpt:
bengal land revenue sales act (xi of 1859), sections 10, 11 - revenue sale--co-sharer fraudulently defaulting and purchasing whole estate--trust--power of court to order re-conveyance of shares of other co-owners--specification of shares sold, sufficiency of. - .....suits were brought by some of the co-sharers of a certain residuary estate to set aside a certain revenue sale which was held in june, 1918. the two suits in question out of which these appeals have arisen were heard along with two other suits of the same nature. the facts alleged were as follows:-- the plaintiffs were co-sharers in the residuary estate ja sakhini which is no. 68 in the pabna collectorate. the sadar jama of the parent estate was rs. 647-7-0. certain of the co-sharers opened separate accounts and the revenue of the residuary share that was left was rs. 582-2 0. it is with this residuary share that, we are now concerned. two of the proprietors of this residuary estate mortgaged their entire share amounting to some 8 annas to -the defendant no. 1, hara sundar majumdar. he.....
Judgment:

Cuming, J.

1. These two appeals arise out of two suits which were tried along with, two other suits. The suits were brought by some of the co-sharers of a certain residuary estate to set aside a certain revenue sale which was held in June, 1918. The two suits in question out of which these appeals have arisen were heard along with two other suits of the same nature. The facts alleged were as follows:-- The plaintiffs were co-sharers in the residuary estate Ja Sakhini which is No. 68 in the Pabna Collectorate. The sadar jama of the parent estate was Rs. 647-7-0. Certain of the co-sharers opened separate accounts and the revenue of the residuary share that was left was Rs. 582-2 0. it is with this residuary share that, we are now concerned. Two of the proprietors of this residuary estate mortgaged their entire share amounting to some 8 annas to -the defendant No. 1, Hara Sundar Majumdar. He sued on his mortgage and having obtained a decree brought the property to sale and purchased it in the name of a certain private idol of which he was the shebait, This purchase was made on the 26th March and the price paid was Rs. 25,000. On the 28th of March the residuary share defaulted in payment of the revenue and it was sold for this arrear on the 26th June. On the 22nd of June the sale under the mortgage has been finally confirmed.

2. The plaintiffs in the original four suits who were four of the co-sharers in the residuary estate sought to set aside the sale on the ground that the notices required by s 6 of the Act (XI of 1859) had not been complied with The notices had not been duly served, they did not contain a sufficient description of the property and there were other irregularities, as a result of which the properties had been sold at a grossly inadequate price, the real value of the property being about Rs. 40,000. Further they contended that there had been fraud on behalf of the defendant. On this point their case was that there was a a agreement that the defendant would purchase and then he would re-convey their shares of the estate to the plaintiffs. This arrangement the defendant failed to carry out. It was further their case that the defendant was not really the shebait of the idol as he alleged but that he was really acting in his own interests and that he had been trying for some time to get possession of the whole property.

3. The case of the defendant was a traverse of all the allegations of the plaintiffs.

4. The Court of first instance decided in favour of the plaintiffs-. He found that the sale for various reasons which I need not set out here was liable to be set aside.

5. He found that there was not any agreement between the plaintiffs and the defendant by which the defendant would purchase the estate and then re-convey it to the plaintiffs, but he also found that the defendant deliberately defaulted with the intention of buying the estate for himself and getting rid of the co-sharers and this he held that the defendant could not be allowed to do. He, therefore, made the following -order:--That on the plaintiffs rateably contributing to the costs of the defendants in these suits and paying their share of the purchase-money, their shares should be re-conveyed to them. If on the plaintiffs depositing the money within a certain time the defendant did not execute these reconveyances and register them, then the sale would be set aside. If the plaintiffs failed to deposit the money required in the time allowed, the suits of the plaintiffs who defaulted would be dismissed.

6. The defendant appealed to the District Court.

7. The learned Judge held that the sale was not liable to be set aside for any irregularity, that th6 description of the property in the sale notification was sufficient.

8. Further there was nothing in the circumstances of the case which would justify the Court in ordering the defendant to re convey their shares to the plaintiffs on the payment of the share of the purchase-money. He, therefore, decreed the appeals and ordered that the suits of the plaintiffs would be dismissed. Each party was to bear his own costs.

9. Two of the plaintiffs have appealed to this Court.

10. They are the plaintiffs in Suits Nos. 207 and 639.

11. In appeal two points have been urged. First, that the notices were not legally sufficient. They did not contain the shares that were to be sold and as the result of this omission the property was sold at a very inadequate price as the purchasers could not know what was really being sold. Now admittedly the shares that were to be sold were not specified in the sale notification. In dealing with this point the learned Judge for certain reasons held that it was impossible to specify the shares. He held that a number of separate accounts had been opened in the estate which did not comprise definite fractions of the estate but the whole or certain shares of certain mouzas. It was not, therefore, possible to calculate the fraction which the residuary share constituted. As, however, the sale notification contained a list of the mouzas comprised in it and the share in each was stated and also the revenue was stated that was due from the residuary share, it could be ascertained from these facts what was being sold.

12. Now the sections of the Act that deal with the question of opening of separate accounts are Section 10 and Section 11.

13. Section 10 provides that when a recorded co-sharer of a joint estate held in common tenancy wishes to pay his share of the revenue separately he may apply to the Collector to open a separate account. In that case he has to specify the share held by him in the estate. By this I presume is meant that he will state the amount of the share, viz, one anna or two annas as the case may be. There is a second case to be considered, viz., when his share consists of a specified portion of the lands of the estate. In this cae the applicant merely gives a specification of the land comprised in his share with the boundaries together with the sadar jama to be paid on it. There would be no difficulty in this because the quinquennial registers in the Collectorate contain the revenue on each estate, mouza by mousa.

14. In this case apparently it is not necessary to state the share held in the estate and this is the case the learned Judge is thinking of when he states that the separate accounts comprised not definite fractions of the estate such as one-anna or two-annas but the whole or part of mouzas. In such a case it would not be possible for the Collectorate to state exactly what was the fractional share of the estate. What, therefore, was stated in the notice was the actual mouzas and Ihe share in each that was to be sold. Further it was stated what was the revenue of the share to be sold and the revenue of the parent estate. This it seems to me would be sufficient and I do not see how anymore information could be given. A number of decisions have been cited to me on this point. None of them really lay down that there are certain specifications to be given and that if by any chance one of these details is not given the notification is not sufficient. Reference may be made to the decision in the case of Ravaneshwar Prasad Singh v. Baijnath Ram Goenka 28 Ind. Cas 699 : 42 C. 897 : 19 C.W.N. 481 : 2 L.W. 355 : 17 M.L.TV 521 : 21 C.L.J. 412 : 13 A.L.J. 501 : 28 M.L.J. 583 : 17 Bom. L.R. 442 : (1915) M.W.N. 559 : 42 I.A. 79 (P.C.) in which it is pointed out that 'the object of the law as well as the rules of the Board requiring specification of the properties to be sold is clearly to enable likely purchasers among the public to know exactly what was going to be sold and thereby to ensure reasonable competition. When an estate is going to be sold it is not difficult to specify it. In the case of shares of an estate the work of specification requires care and attention. No hard and fast rule can be laid down with regard to its sufficiency, for it must vary according to the facts of each particular case.' So far as I can see in the present case the notices did contain sufficient details to enable the purchasers to know what they were buying. It contained the names of each of the mouzas and the share in each to be sold, also the jamas of the parent estate and the jama of the share to be sold. I must, therefore, agree with the learned Judge that the description was sufficient for the purpose and in fact it was the only one possible. This is clear on a consideration of the two sections that I referred to. I, therefore, hold that the sale is not liable to be set aside for any irregularity. The next point urged by the appellant is that in all the circumstances of the case the respondent is bound in justice, equity and good conscience to re-convey to the co-sharers, who are willing to purchase, their share of the property.

15. Their case would seem to be that the respondent took advantage of his position as the largest co sharer to allow the property to be sold in order that he might squeeze out his co-sharers. The respondent has for a long time been trying to get hold of the whole property and with this in view he allowed the property to be sold for default of paying the revenue. The amount of the revenue was small compared with the price that the respondent paid for the property. Now, what are the facts? The amount of revenue for which the property was sold was Rs. 141-16. No doubt the respondent could have paid this without any difficulty seeing that he paid some Rs. 4,50U for the property at the revenue sale. The property had defaulted some four times before. The last time the appellant whose share in the revenue amounted to some ten rupees had paid some Rs. 250 to save the property from sale and she could not be expected to repeatedly pay this amount to save her small share with all the attendant difficulties of recovering the amount from her co-sharers. The default for which the property was sold was for the period ending with the 31st March. The respondent had purchased at the execution sale on the 26th March when he purchased in the name of the thakur of which he alleged he was the shebait. This thakur it is admitted is hi3 own private idol. He was thus a co-sharer, or rather his thakur was, for the kist for which the property was sold. If he had been acting bona fide he would not have allowed the property of the idol for which he was the trustee to be sold for the small amount of revenue due and the idol lose a valuable property. For it is significant, the purchase at the revenue sale was made not in the name of the thakur whose interests he was supposed to look after but in his own name. He was not an outsider, for he or rather the thakur whose interests he was supposed to be taking care of had a mortgage on the property. He was, obviously a rich man, for he had paid Rs. 25,000 for the property when he purchased it in the name of the thakur and Rs. 4,500 for it at the revenue sale. It may be argued that he purchased at the revenue sale in his private capacity and that it was the thakur who was a co-sharer. I am not impressed by this supposed dual capacity of the respondent. Now, no doubt, the mere fact that the purchase at the revenue sale was by one of the co-sharers would not of itself give the other co-sharers an equity to obtain a re-conveyance of their shares from the purchaser on their paying to him the proper proportion of the expenses which he had incurred. See Kurshed Ali v Dinanath Surma 49 Ind. Cas. 802 : 29 C.L.J. 492. To support the claim there must be something unfair in his dealings with his co-sharers. In the case of Deonandan Prasad v. Janki Singh 39 Ind. Cas. 346 : 44 C. 573 : 21 C.W.N. 473 : 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 : 25 C.L.J. 259 : 21 M.L.T. 240 : 5 L.W. 526 : 19 Bom. L.R. 410 : 44 I.A. 30 (P.C.) the Judicial Committee of the Privy Council advert to the need of demanding from each co-sharer such measure of candid dealing as would ensure that the co-sharer would not be tempted to make a deliberate default with a view of ousting his co-sharers and appropriating to himself the common property. In the present case we find that the respondent was the largest co-sharer being the owner of 8 1/2 annas. He had never paid up the revenue before to save the estate. He was admittedly a rich man and could have easily paid the necessary money to save the estate. The only conclusion to be drawn in the circumstances is that he deliberately defaulted with the intention of getting rid of his co-sharers and purchasing the estate himself. If he had been acting bona fide, it seems to me that he would not have allowed the estate of the thakur for which he was the trustee and which he was bound to protect to be sold, for the small sum that was owing as arrears of revenue. I think that this is a case where in equity the respondent, may be asked to re-convey to the co-sharers who desire to re-purchase, on the payment of their share of the dues, their share of the property. The order, therefore, I make is as follows:--The order of the learned District, Judge dismissing the case of the plaintiff is set aside and on the appellants in these two appeals paying to the respondent the amount due by them together with any costs that the respondent may have incurred as the result of their default, which amount will be ascertained by the Subordinate Judge, within two months from the date of such ascertainment, the respondent will re-convey to the appellants by a properly registered deed their share of the property. In default of the respondent executing these deeds and registering them after the money has been paid within such time as the Court below may think reasonable, the Court will execute the conveyances on his behalf. If the appellant or appellants fail within the time to pay the above-mentioned sum into Court, his or their appeal will be dismissed.

16. In the circumstances of the case I think both parties must bear their own costs in this litigation in all Courts.

Chakravarti, J.

17. I agree with my learned brother in the order he proposes to make.

18. The residuary estate consisted not only of 8J share of the touzi belonging to the defendant No. 1 but also of some other shares. Only a share of some of the villages also formed part of it. In these circumstances it appears to me that the description given in the notice under Section 6 might have specified those shares in addition to the shares of the villages. This would have conveyed a more definite information to purchasers. Be that as it may, I agree that the appeal should be allowed on the other ground mentioned in the judgment of my learned brother.


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