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Eradat Sarkar Vs. Abu Ahamed and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in123Ind.Cas.645
AppellantEradat Sarkar
RespondentAbu Ahamed and ors.
Cases Referred(P.C.) and Satish Chandra Chatterji v. Kumar Satish Kantha Boy
Excerpt:
co-sharers - sale of estate for revenue--purchase by one co-sharer in fraud of others--trust--purchaser's duty to reconvey with mesne profits. - .....nos. 1 and 3 are in the position of the trusttees on behalf of the plaintiffs and as soon as the plaintiffs deposit the money which they have been ordered to pay, they would be entitled to a reconveyance of the property with respect to their shares as well as to receive the profits realized by those defendants on account of their shares. the last argument of the appellant also fails.4. there is, however, one small point which must be found in favour of the appellant and it is this that the learned judge has directed the plaintiffs to deposit in court seven annas odd share of the purchase money (rs. 1,600) within three weeks from the date of the judgment the learned advocate for the appellant contends that he should have been allowed interest on that sum. that proposition is quite.....
Judgment:

B.B. Ghose, J.

1. This is an appeal on behalf of defendant No. 1 which arises out of a suit brought by a large number of plaintiffs for setting aside a revenue sale of Towzi No. 1080 of the Birbhum Collectorate. This estate belonged to a large number of co sharers including several defendants in this case. It is not necessary to give the shares of the parties. The important fact is that defendant No. 3 had a small share as proprietor and another share as purchaser of an interest which consisted of a mokarari mourashi lease in favour of defendants Nos. 20 to 26 There was a small arrear for the share of some of the plaintiffs. There was no separate account, but by an arrangement among the several co-sharers of the property, they used to pay revenue according to their shares in the Collectorate. The revenue of the March Kist of 1922 being in arrears, the whole estate was advertised for sale. Defendant No. 20 applied for payment of the arrears to the Collectorate and the Collector granted-permission to pay the arrears on 20th June 1922. But although the amount was a small one, it was not paid, and the property was put up to sale on 26th June 1922 and purchased by defendant No. 1 for Rs. 1,600. It is found by the Court below that the property was valuable and would be worth about Rs. 12,000. The plaintiffs alleged that they sent one of their co-sharers whose name is Mohammad Ahmed with sufficient money to make the deposit before the property was put up to sale. But this Mohammad Ahmed colluded with Abu Taher, defendant No. 3, and did not pay, the amount with the object that the property would be sold at the revenue sale and purchased by Abu Taher who would give four annas of the property to Mohammad Ahmed, after the sale. Shortly stated, that is the story of the plaintiffs and they asked for setting aside the sale on the ground of fraud of Abu Taher who is alleged to have purchased the property in the benami of defendant No. 1. The defendants denied every statement made by the plaintiffs. The pleadings of the parties are very lengthy and the issues framed in the Court below were numerous. The real questions which we have to consider in this case are covered by issues Nos. 9,10 and 11. The questions were first, whether defendant No. 1 was a benamdar for defendant No. 3 and secondly whether the plaintiffs sent Mohammad Ahmed with money to make the deposit as alleged by them and, if so, whether Mohammad Ahmed and defendant No. 3 in collusion did not pay the arrears and caused the property to be sold with a view to depriving the co-sharers of the property. Various other questions were raised before the Subordinate Judge and those questions were found mainly against the plaintiff's contention. The Subordinate Judge, however, decided the three important questions in favour of the plaintiffs. His judgment is a very well considered one and we do not think we need elaborate the facts dealt with very carefully by the Subordinate Judge.

2. He has found that defendant No. 1 was lately a servant of defendant No. 3 and was his benamdar. He has also found by, a careful analysis of the evidence that the plaintiffs did actually send the money required for preventing the sale by making a deposit of the arrears. But Abu Taher who is very rich and who went to Suri, where the sale was held, specially for the purpose of purchasing the property himself entered into an agreement with Mohammad Ahmed who was charged with the duty of depositing the arrears, not to make the deposit and to cause the property to be sold. The purchase of the property being made under such circumstances the Subordinate Judge quite rightly held that the purchaser was guilty of fraud towards his co-sharers, and that he could not retain the property as against them. He has, therefore, made a decree, as was made by their Lordships of the Judicial Committee of the Privy Council in the cases of Deonandan Prasad v. Janki 39 Ind. Cas. 340 : 44 C. 573 : 44 I.A. 30 : 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 (P.C.) and Satish Chandra Chatterji v. Kumar Satish Kantha Boy 73 Ind. Cas 391 : A.I.R. 1923 P.C. 73 : 45 M.L.J. 363 : 28 C.W.N. 327 : 39 C.L.J. 165 : 33 M.L.T. 325 (P.C.). He has made a decree to the effect that on payment of the share of the purchase money which amounted to Rs. 1,600 by the plaintiffs according to their shares of the estate, defendant No. 1 should reconvey to the plaintiffs at his own cost that share of the estate and it was also directed that defendants Nos. 1 and 3 should pay to the plaintiffs a certain sum of money as mesne profits with interest.

3. The contention on behalf of the appellant is that he is not the benamdar of defendant No. 3 and that there was no fraud as found by the Subordinate Judge and that the plaintiffs are not entitled to a conveyance of the property. It is hardly necessary to discuss the evidence as we entirely agree with the findings of the learned Subordinate Judge on those points. It was argued that the plaintiffs are not entitled to any mesne profits as they would only be entitled to get the property on payment of their shares of the purchase money. But the Judicial Committee has laid down that in such cases the defendant must be held to be in possession of the property for the benefit of the plaintiffs and the other co-sharers according to their several interests at the date of the sale. If that is so, defendants Nos. 1 and 3 are in the position of the trusttees on behalf of the plaintiffs and as soon as the plaintiffs deposit the money which they have been ordered to pay, they would be entitled to a reconveyance of the property with respect to their shares as well as to receive the profits realized by those defendants on account of their shares. The last argument of the appellant also fails.

4. There is, however, one small point which must be found in favour of the appellant and it is this that the learned Judge has directed the plaintiffs to deposit in Court seven annas odd share of the purchase money (Rs. 1,600) within three weeks from the date of the judgment The learned Advocate for the appellant contends that he should have been allowed interest on that sum. That proposition is quite correct and in accordance with the judgment of the Privy Council in the cases cited above. We, therefore, make this variation that the plaintiffs are bound to pay into Court 7 annas 16 gandas 2 247/792 haras share of the purchase money (Rs. 1,600,) plus interest at the rate of six per cent. per annum from the date of the sale, that is, 26th June, 1922, up to the date of their depositing their share of the purchase money into Court, that is, 27th January, 1926. The learned Advocate for the plaintiffs-respondents states that they have deposited a sum which would cover that interest. Whether that is so or not it is unnecessary for us to decide. If the interest is not covered by the sum that has been deposited, the plaintiffs must deposit the balance before the conveyance is executed by defendant No. 1 in their favour. With this variation this appeal is dismissed with costs, payable only to the plaintiffs-respondents.

Panton, J.

5. I agree.


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