JUDGMENT
Suhrawardy, J.
1. This appeal arises out of a suit by the plaintiff for recovery of possession of certain piece of land said to have been purchased by him from defendants 3, 4 and 5. The plaintiff’s case was that the land belonged to three brothers Raj Mohan, Nanda Mohan and Deba Mandal. After the death of Raj Mohan and Deba Mandal their shares were inherited by defendants 3 and 4 – defendant 5 being one of the brothers. The defence of the principal defendants was that the property belonged to Raj mohan alone and that he had transferred it to the defendants before his death. During the progress of the suit in the trial Court the plaintiff added an alternative prayer to his plaint, namely, that if it was found that his vendors had no interest in the property the price paid by him to them might be decreed against them. The defence of the vendor-defendants was that the land belonged to the three brothers and that Rajmohan did not sell the land to defendants 1 and 2 as alleged by them, but that they had sold the land to the plaintiff; and consequently a decree for refund of purchase money should not be made against them. Judhisthir, defendant 3, further said that the entire purchase money, as mentioned in the kobala, was not paid to him and a portion of it was still unpaid. The Munsif in the trial Court held upon an examination of the evidence that the case for defendants 1 and 2 was true and that the property belonged to Rajmohan alone who had sold it to the defendants as alleged by them. On appeal the learned Subordinate Judge found that the property did not belong to Rajmohan alone, that it belonged to all the three brothers jointly and that the kobala propounded by the defendants was not executed by Rajmohan and was not a genuine document. After entering this finding against the defendants the learned Subordinate Judge went on to discuss the merits of the plaintiff’s case and remarked that the consideration of the three kabalas from defendants 3, 4 and 5, though they had equal shares, was not the same. He, however, does not question the genuineness of the plaintiff’s kobalas but records an opinion about them in these words:
In my opinion, all these kobalas were mere paper transactions and they were created to enable the plaintiff to bring this suit. If the plaintiff really intended to purchase this land, he would have paid Rs. 200 to Judhisthir. I, therefore, find no reason to decide the question of title in plaintiff’s favour.
2. In the result he confirmed the decree of the Munsif which was to the effect that the plaintiff’s suit should be dismissed and that amount admitted by defendants 3, 4 and 5 to have been received from the plaintiff should be returned to the plaintiff by the defendants. I regret I am unable to follow the reasoning of the learned Subordinate Judge in this matter. He finds that the defendants’ kobalas were not genuine. The defendants are, therefore, trespassers and he holds that the plaintiff’s kobalas are genuine, but says that they are paper transactions created in order to enable the plaintiff to bring this suit. It is difficult to understand what the learned Subordinate Judge exactly means by using the words “paper transaction.” This is one of the instances where expressions are loosely used without attaching proper legal significance to them. The reason that the Subordinate Judge gives for holding that the plaintiff’s kobalas are paper transactions is that they were created to enable the plaintiff to recover possession of land from the defendants. If that is the idea with which the documents were created I do not see why they should be called paper transactions. The vendors admit that they sold the property and the purchaser claims that he has purchased this property. That being so, it is difficult to imagine any circumstances which would enable the Court to say that the documents were paper transactions.
3. In the case of Lal Achal Ram v. Raja Kazim Husain [1905] 27 All. 271, their Lordships of the Judicial Committee held that where the plaintiff suing in ejectment claimed under a transfer from the true owner, the deed of sale containing an untrue statement as to the payment of the purchase money, but being otherwise reasonable in its terms, and affirmed and acted upon by both vendor and purchaser, and neither champertous nor contrary to public policy, it operated as a present transfer to the plaintiff, giving him a good title on which it was competent for him to sue, unless the defendants succeed in proving that the transfer was not merely voidable but absolutely void. The present case seems to me to fall exactly within the principle enunciated by their Lordships. It is a suit against a trespasser who has no right to retain possession of the property as against the true owners of it. The true owners are defendants 3, 4 and 5. They say that they had sold the property to the plaintiff and the plaintiff in virtue of that transfer – it does not matter whether the entire consideration money was paid for the transfer – brought the present suit against the defendants who had no right to retain possession of it in the presence of his vendor. In support of the view of the Court below reference has been made to the decision in the case of Kamini Kumar Deb v. Durga Charan Nag A.I.R. 1923 Cal. 521, where it has been held that if a document is fictitious the principle in the decision in Achal Barn’s case [1905] 27 All. 271 does not apply Though I consider that the law as broadly enunciated in that judgment is an inroad upon the principle underlying the decision of the Judicial Committee in Achal Ram’s case [1905] 27 All. 271, I do not think that the considerations which influenced then Lordships in Kamini Kumar’s case A.I.R. 1923 Cal. 521 to hold against the document are presenl in the present case. In Kamini Kumar’s case A.I.R. 1923 Cal. 521, there is no finding that the defendants were trespassers. In fact on the statement of the facts of that case it is evident that they had some ostensible-right to the possession of the lands in suit there. It has not been further found that the person who had title to the land support the plaintiff’s title either in the plaintiff in his own right or in the plaintiff as the representative of the true owner. The contention of the defendants in that case was that the conveyances upon which the plaintiff relied was without any consideration and passed no right. It may be said that a transaction without any consideration is void and, therefore, falls outside the decision in Achal Barn’s case [1905] 27 All. 271. In the present case there was consideration, though inadequate according to the Subordinate Judge, upon which plaintiff’s title was well founded. If the consideration is inadequate the vendors may have the right to void the transaction, or in other words it renders the transaction voidable. If the whole of the purchase money is not paid to one of the vendors he has the right of an unpaid vendor under the law. But any question that may arise between a vendor and a vendee with reference to the transaction is outside the competence of a trespasser to challenge the validity of the sale on any such ground.
4. Now, the reason which the Subordinate Judge has given to hold that the kobalas are paper transactions is that they are created to enable the plaintiff to bring the suit. Admitting the object to be as stated by the Subordinate Judge I do not find any reason why the plaintiff cannot maintain the suit. The vendors, defendants 3, 4 and 5 had the right to maintain the suit. The plaintiff under those transactions is either their agent or benamdar in either capacity he is entitled to maintain the suit. Then again under the decree passed by the Subordinate Judge the amount of consideration received by defendants 3, 4 and 5 has been decreed against them. The vendors admit that they have sold the property and received the price therefor, and the purchaser says that he has purchased it and paid the consideration for it. I fail to see on what principle of law the vendors can be compelled in these circumstances to return the purchase money. In my opinion on the finding arrived at by the Subordinate Judge the plaintiff is entitled to succeed.
5. The result is that this appeal is allowed the decree of the lower appellate Court of aside and the plaintiff’s suit decreed with Costs throughout.
Graham, J.
6. I agree.
