JUDGMENT
Field, J.
1. The facts of the case are briefly as follows: The two plaintiff’s were co-sharers to the extent of four annas each in a darpatni taluk. The other eight-anna share belonged to the defendant No. 1, the defendant No. 2 holding this moiety benami for him. It appears that the rent of the darpatni fell into arrear, and that the patnidar brought suits, and recovered decrees for the rent so in arrear. The darpatni was brought to sale in execution of these decrees, and was purchased at the execution-sale by the defendant No. 1. The plaintiffs now bring this case to recover from the defendant No. 1 the moiety of the darpatni to which they were jointly entitled before the sale. The case made by them in their plaint, in paragraph six, was a case of actual or positive fraud. They there alleged that, after time had been given by the decree-holder to pay the sum due under the decree, the plaintiff’s were prepared to pay their share on the date up to which time was given, and that the defendant led them to believe that he also would have his share of the money ready to make the payment on that date; they suggested that this representation was fraudulently made to mislead them, and with the intention of preventing them from raising the whole of the money which would have been necessary to satisfy the decree fully and so prevent the sale.
2. If that case had been proved, that would have been a case of actual fraud, and would have entitled the plaintiffs to relief in the Court in which the suit was instituted; but, as a matter of fact, that case was held below not to have been proved; and there is no appeal at present before us upon this question. The bare point urged before us is, that because the plaintiffs and the defendant were co-owners of the darpatni before the sale, the defendant, purchasing at the execution-sale, must be taken to have purchased for himself and his co-sharers: in other words, that he is to be regarded as a constructive trustee for the plaintiffs so far as their shares are concerned.
3. The learned Judge in the Court below has referred to certain cases well known in the Courts of Equity in England, in which it was decided that when persons occupying a fiduciary position had renewed leases or otherwise acquired property for themselves, taking advantage of their fiduciary position to do so, they could not be permitted to retain the benefit thus acquired, but must be regarded as constructive trustees for those towards whom they occupied a position of trust. We think that the principle of those cases is not applicable in the present instance. We are of opinion that co-sharers in immoveable property in this country do not occupy the same position to wards each other as partners under English law.
4. Under the decrees passed for rent, both the plaintiffs and the defendant were jointly liable. There was no several liability, and the result of all the parties being jointly liable was, that each one of them was liable to make good the whole amount due under the decree. But we will assume, for argument’s sake, that the plaintiffs ought to have paid one moiety of the amount due under the decree, that moiety representing their joint interest in the darpatni taluk, and that the defendant was liable to pay the other moiety of the sum due under the decree. This assumption is the most favourable possible to the plaintiffs’ case. Now it has been found, as a matter of fact, by both the Courts below, that the plaintiffs had not paid the moiety of the sum due under the decree, which moiety they admit their liability to pay.
5. Under these circumstances, we think that the plaintiffs, coming into a Court of Equity, cannot say that they have done all that they were bound to do, and that the sale was due to the laches of the defendant alone; and both parties being thus in default, the plaintiffs are not entitled to the assistance of a Court of Equity.
6. It may be well to observe, that no case was made by the plaintiffs in the Courts below; that the defendant No. 1, being a defaulter, was not at liberty to bid at the execution-sale; and that, therefore, that execution-sale must be treated as a complete nullity. The superior landlord, the patnidar, has not been made a party to this suit; and as that case was not raised or tried in the Courts below, we have not to deal with or pronounce our opinion upon it. We also deem it unnecessary to decide what the result might have been if the plaintiffs had paid the whole of the moiety of the sum due under the decree which they admit their liability to pay.
7. We deal with this appeal merely on the ground, that as the plaintiffs did not pay that share of the rent which they admit that they were bound to pay, they are not in a position to ask that relief which they have sought in their plaint from a Court of Equity. Further, the case for relief put forward by them in their plaint was based upon actual or positive fraud, and this they have failed to establish.
8. Under these circumstances, we are of opinion that the decree of the District Judge must be reversed and the decree of the first Court be restored, the plaintiffs’ case being dismissed with all costs in this and the lower Appellate Court.
