Judgement

Appeal from a judgment and decree of the High Court (August 18, 1910) reversing a judgment and decree of the Subordinate Judge of Monghyr.

The suit was instituted by persons now represented by the respondents against the appellant and another for a declaration that an auction sale which took place on March 25, 1907, under Act XI. of 1859 should be set aside as being fraudulently effected; the plaintiffs further claimed a decree for possession and mesne profits. Alternatively the plaintiffs claimed to recover the value of the property, or that there should be a reconveyance ordered.

The circumstances under which the suit was instituted appear from the judgment of their Lordships.

The Subordinate Judge found that there had been no fraud on the part of the appellant, that the proper notices were served, and that the sale had been brought about by the negligence of the plaintiffs in not paying the revenue kist. He accordingly dismissed the suit.

The High Court (Holmwood and Chatterjee JJ.) allowed the appeal. The learned judges found that there were no laches on the part of the co-sharers, and that the appellant was in default. They held that the appellant was a trustee for the owners of the 3-annas share mortgaged to him, and was bound to reconvey that share to his mortgagors upon payment of a proportionate part of the purchase price. With regard to the other co-sharers, they considered that the matter stood upon a somewhat different footing, but that nevertheless a fiduciary relationship existed. They said " even, therefore, if the first defendant be considered in the light of a co-sharer, he must share the acquisition with his other co-sharers. But he is not a co-sharer; he is a trustee for a co-sharer, and can derive no benefit from himself committing a breach of trust." They found that the purchase was made for Rs.425, and that the value of the property was over Rs.8000, and ordered that on the plaintiffs paying into Court Rs.425, with interest at 6 per cent, per annum from the date of the sale, within three months, a conveyance under one deed of sale should be executed at their cost. It was also ordered that the appellant should account to the co-sharers other than his mortgagors for mesne profits. The decree as drawn up declared that the sale and purchase were invalid.

1916. Nov. 2, 3. De Gruyther, K.C., and Dube, for the appellant. Under the Transfer of Property Act, 1882, s. 76 (c), the appellant was under no obligation to pay the revenue due upon the shares not mortgaged to him. Sect. 53 of that Act provides that a co-sharer may purchase. There was no evidence of fraud. The appellant had overpaid a previous kist and was entitled to assume that the balance would be credited in his favour. The default was brought about by the respondents, not by the appellant. The Subordinate Judge found that there had been no fraud, and that the sale notices had been duly served. In the absence of fraud the appellant is not liable as a person in a fiduciary position Doorga Singh v. Sheo Prashad Singh (I. L. R. 16 Calc. 194.); Ram Lall Mookerjee v. Jodunath Chatterjee. (( 1881) 9 Calc. L. R. 337.)

The respondents were not represented.

Dec. 7. The judgment of their Lordships was delivered by

SIR LAWRENCE JENKINS, This suit relates to a 12-annas share of mauza Tikarampur, pargana Monghyr, being taujih No. 5298. The property was offered for sale in the Collectorate of Monghyr, for the recovery of arrears of revenue, under the provisions of Act XI. of 1859 on March 25, 1907, and was bought for the defendant, Deonandan Prashad, a minor, in the name of Bunwari Lal. Before the sale it belonged as to 9 annas to the plaintiffs 7 to 16, and as to the remaining 3 annas to the plaintiffs 17 to 20, subject to a usufructuary mortgage of these 3 annas for the benefit of Deonandan, and to transfers of parts to the plaintiffs 1 to 6.

The suit, which impugns the sale, failed in the Court of first instance, but on appeal the plaintiffs claim was up