JUDGMENT
Banerjee, J.
1. This appeal arises out of a suit by the plaintiffs, respondents, to recover possession with
mesne profits of a nine-anna share of a certain property, Mehal Chuck Shah Mohamedpore, after
setting aside a sale, held on the 6th of June 1883, of a larger share of the Mehal, that is, a
thirteen-anna share, made up of the nine-anna share in suit, and of another 4-anna share
belonging to the defendants Nos. 3 to 23, for arrears of Government revenue due in respect of the
said thirteen-annas.
2. The grounds upon which the plaintiffs seek to have that sale set aside are- first,
irregularity in the sale; and, secondly, fraud on the part of the defendants. The irregularities
set out in the plaint need not be considered here, as the judgment of the lower Court, as to the
existence and effect of those irregularities, was given against the plaintiffs, and no
cross-objections have been urged before us against that judgment. We would only add that, upon
the face of the judgment, there does not seem to be any ground for holding that the sale was bad
by reason of any irregularity.
3. The fraud alleged in the plaint is said to have consisted in this, that the property was sold
for a very small amount of arrear, less than one rupee; that the plaintiffs were not aware of the
existence of the arrear; that the defendants, the plaintiffs’ co-sharers, intentionally left this
small amount unpaid, with the object of purchasing this property; and that they purchased the
property themselves for a price which is less than its proper value. One of the plaintiffs was
examined as a witness in the case. He was asked to state in what the fraud consisted, and he
stated that it consisted in the facts alleged in the plaint of which the substance has been given
above.
4. It appears that, in the evidence adduced on behalf of the plaintiff’s, an additional element
of fraud was introduced, namely that the plaintiffs’ co-sharers, when bidding at the auction,
dissuaded intending purchasers from buying. I should add here that the plaintiffs further alleged
in their plaint that their co-sharers bought the property benami in the name of the defendant No.
1.
5. The defence was that there was no fraud; that the arrear that was due was due really from the
plaintiffs; that the purchase by the defendant No. 1 was not a benami purchase; and that the
property did not sell for anything less than its fair price.
6. The Court below, as I have already said, decided against the plaintiff’s upon the question of
irregularity, but it gave the plaintiffs a decree to the effect that the defendant Durga Sing and
his co-sharers in the purchase do reconvey to the plaintiffs the nine-annas share of the property
upon receiving from them a proportionate amount of the purchase-money with interest at the rate
of 4 per cent, from the date of payment thereof; and it gave the plaintiffs that decree upon the
ground that the defendants, the purchasers, were guilty of fraud in causing the sale of the
property in the manner alleged in the plaint, and in dissuading intending purchasers from buying.
7. Four of the defendants have appealed against that decree-the defendants Nos. 1 to 4-and the
main grounds urged on their behalf are-first, that the Court below was wrong in giving the
plaintiffs the decree for equitable relief that it has given when the plaintiffs did not ask for
any such relief but only sought to recover possession after setting aside the sale, and when the
issues raised in the case did not embody the questions necessary to be decided before the
plaintiffs could be held entitled to that relief; secondly, that upon the facts alleged in the
plaint, or found by the Court below, no fraud was made out such as should entitle the plaintiffs
to relief; and, thirdly, that upon the evidence the Court below was wrong in finding certain
facts in the plaintiffs’ favour which were said to constitute the alleged fraud.
8. With reference to the first contention, we do not think the appellants are entitled to succeed
upon it. It might be possible that, by reason of the frame of the suit and of the issues raised
in the Court below, the appellants were precluded from raising various points in their defence
and adducing evidence to substantiate those points. But, as all the necessary parties are before
the Court, and the plaint contains a statement of all the necessary facts, we do not think that
such a bare possibility of prejudice would entitle the appellants to succeed in this appeal,
unless it was shown, or suggested, how they might have been actually prejudiced. As nothing has
been shown, or suggested, to make this out, we think this ground must fail.
9. But we think the appellants are entitled to succeed upon the second and third grounds. We
shall consider those grounds separately. The facts alleged in the plaint together with the
additional fact noticed above, which was developed in the evidence, come, shortly stated, to this
that the defendants, who were co-sharers with the plaintiffs in the property in arrear,
intentionally withheld payment of a certain portion of the Government revenue due in respect
thereof, and bought the property themselves, after having dissuaded others from bidding. And the
question is,–Do these facts constitute any fraud, considered singly, or collectively? The Court
below has answered this question in the affirmative, and given the plaintiff’s a decree, relying
upon the case of Bhoobun Chunder Sen v. Ram Soonder Surma Mozoomdar I.L.R. 3 Cal. 300. But that
case is clearly distinguishable from the present. There the defendant undertook to apply to the
Collector on behalf of all the co-sharers to save the mehal from the impending sale, and having
sent his co-sharers away, with the assurance that he would do everything to protect their
interests neglected to make any application, and bought the estate himself. That was a clear case
of fraud. Here it is not even suggested that the defendants in any way prevented the plaintiffs
from becoming aware of the existence of the arrear, or from paying it off, as they could if they
chose. Every co-sharer in a zamindari may, if he chooses, bring it to sale by not paying the
revenue; but every other co-sharer can save it from sale by paying the arrear, and can recover
the amount from the defaulter. The fact of the defendants being co-sharers in the property, did
not clothe them with any fiduciary character, which disqualified them from buying this property,
unless it was for the benefit of all the co-sharers. The Revenue Sale Law, Act XI of 1859,
contains sufficient indication to show that a defaulting co-partner is at liberty to buy the
estate in arrear.-See Section 53 of the Act.
10. The authority of decided cases is also in support of this view. We may refer to the case of
Ram Lall Mookerjee v. Jodunath Chatterjee 9 C.L.R. 337, which is a somewhat similar case, as
bearing upon this question. The principle applicable to the case of one of several joint tenants
obtaining renewal of a lease is inapplicable to the case of a co-sharer in Jamindari buying it at
a revenue sale for this simple reason. All the joint tenants having an interest in the old lease,
which forms the basis of the right to obtain a renewal, the benefit of a renewal obtained by any
one of them is held to belong to them all-See Clegg v. Fishwick l Mac. & G. 298. But the right of
a co-sharer to buy an estate at a revenue sale is not based upon any right or interest that is
common to him and his co-sharers.
11. If the fact then of the defendants having been co-sharers with the plaintiffs did not clothe
them with any fiduciary character, and if the fact of their having committed default in the way
and for the purpose alleged in the plaint did not, in the absence of misrepresentation or
concealment on their part, constitute any fraud, let us see whether the additional fact of their
having deterred others from bidding for the property amounted to fraud. Upon this point the only
authority that can be cited in favour of the respondents is a passage in Sugden’s Vendors and
Purchasers, at page 93 of the 13th edition, which is to this effect-” Fraud will, of course, be a
sufficient ground for re-opening the biddings. Therefore, if the parties agree not to bid against
each other, the Court could re-open the biddings.”
12. Now this passage has been considered in the case of Careiv’s Estate 26 Beav. 187, and it has
been held that there is no real authority in support of it, and that an agreement between two
bidders not to bid against one another would not be a sufficient ground for annulling the sale.
And in a later edition of the work the text has been altered and a note added in accordance with
the above ruling- (Sugden on Vendors and Purchasers, 14th edition, p. 117).
13. The same view is taken in the case of Gallon v. Emuss 1 Col. 243, and the law on the point is
thus stated in the last edition of Dart’s Treatise on the Law of Vendors and Purchasers (p. 121):
An agreement between two persons not to bid against each other at an auction is legal, and such
an agreement has been held to be valid where the sale has been held by order of Court.” And in
this Court, in a case very similar to the present, it has been held that a combination among
certain purchasers not to bid against one another does not constitute any fraud or impropriety
such as would have the effect of vitiating the sale-See the case of Gobind Chundra Gangopadhya v.
Sherajunnissa, Bibi 13 C.L.R. 1.
14. There is, therefore, really no authority in support of the position that dissuading of
bidders was necessarily an act of fraud. Now, if neither the fact of the defendants being
co-sharers and buying the estate after making an intentional default in the payment, of revenue,
nor the fact of their having entered into combination with other bidders, separately, constituted
any fraud; we do not see how, taken together, they could be said to constitute fraud. Even upon
the facts found, therefore, we are unable to confirm the decision of the Court below. Of course,
if the defendants had the conduct of the sale, and had dissuaded intending purchasers to bid, or
if there had been misrepresentation made by these defendants as to the nature of the title, or as
to the value of the property, and if, in consequence of such misrepresentation, persons had been
deterred from bidding, that would have constituted fraud, and would have entitled the plaintiff’s
to a decree. But no such thing is proved, or even alleged here.
15. Whilst we think that, even upon the facts found, the appellants are entitled to succeed, at
the same time we deem it right to add that we cannot agree with the Court below in the findings
of fact arrived at by it, namely, in the first place, that the default was wholly intentional and
made by the defendants with the object of buying the property themselves; and in the second place
that there was really any deterring of intending bidders. And first as to whether or not the
default was intentional from the beginning, this is how the facts stand. The amount of the
Government revenue in arrear was, as I have stated above, very small, less than one rupee. The
defendant Dip Narain, on the 4th of June, that is, two days before the sale, made an application
to the Collector for permission to pay in the amount, alleging that it was through no fault of
his that an arrear had fallen due. Thereupon the order passed by the Collector was to this
effect-that the arrears of rent, road-cess, postal contribution, and embankment tax be taken,-and
the amount due under all these heads came up to a little over Rs. 20 (see Exhibits vi, vii, pp.
38, 39 of the Paper-book). Now it appears from the evidence-and it is admitted by one of the
plaintiffs, Ram Gholam Singh, who was examined as a witness in the case-that the different
co-sharers had not come to a settlement as to the road-cess, and it was for that reason that the
road-cess arrears were not paid. That being so, it is clear to our minds that, originally, there
was no intention on the part of the defendants of allowing the mehal to get into arrears, with
the object of buying it themselves. What the defendants really wanted was to obtain a settlement
of their disputes as regards the payment of this road-cess. It was only when the defendant Dip
Narain found from the order of the Collector, that the payment of the arrears of Government
revenue alone would not be accepted, and’ that he had to pay not only those arrears but also the
road-cess and the other items, as to which there was a dispute, if he wanted to save the mehal;
that he made default in paying the amount, which the Collector ordered him to pay; and so the
mehal was put up for sale. It seems that the plaintiffs’ default, in paying the road-cess
arrears, may well be regarded as having ultimately led to the sale.
16. Then as to the other fact, namely, that the defendants deterred intending purchasers from
bidding. In the first place it is worthy of note, as I have already pointed out at the very
outset, that this element of fraud was not alluded to in the plaint, nor even was it mentioned,
when one of the plaintiffs was examined as a witness. It was developed in the evidence, and, from
the nature of that evidence, we are not at all convinced that the fact deposed toby the
plaintiffs’ witnesses was true. The Court below has believed those witnesses, considering them to
be respectable witnesses. We should not have felt justified in dissenting from the conclusion of
fact arrived at by the Court below upon the evidence of those witnesses, if we did not find that
evidence so extremely vague, as to the facts deposed to, and so very unsatisfactory, as to the
circumstances which led to the presence of the witnesses at the time and place where they say
they were, that we could not rightly act upon it. All that they say is, that certain of the
co-sharers of the plaintiffs prohibited them and other persons from bidding as they were going to
buy the property themselves. In the first place, it does not seem to be very likely that persons
who went with the bona fide intention of bidding, and of bidding up to a certain amount, would so
soon, and so readily, upon a mere request, be dissuaded from bidding and from making the bargain
that they intended to make. We fail to discover, in the evidence, any sufficient motive that
could have induced intending bidders to be dissuaded from bidding. And, in the second place, the
account that these witnesses give of the reasons for their presence in the Collectorate at the
particular point of time does not seem to us to be at all satisfactory.
17. Upon the whole, therefore, as well upon the question of law as upon the questions of fact considered above, we feel constrained to dissent from the judgment of the Court below; and we may add here that the evidence adduced to show that the plaintiffs have suffered injury by reason of their property having been sold for a price below its proper value is, in our opinion, neither satisfactory nor precise. Upon all these grounds, therefore, we think that the decree of the Court below must be set aside, and the plaintiffs’ suit dismissed with costs in both Courts.
