Fraudulent purchase of property by one co-sharer does not affect the title of the other co-sharers and the possession of the fraudulent purchaser will be referred to his lawful title as a co-owner and will be taken to be the possession of his co-owners.

Reuben, J.

1. This is an appeal by defendant 4 against an order of the District Judge of Motihari, reversing a decision of the Subordinate Judge of the same place.

2. The suit was brought by the plaintiff-respondent for partition of 21 bighas purchased by him on 10th October 1941, from defendants 6 and 7 out of their half share of a tenancy of 61 bighas 7 kathas in village Jagdishpur, taken in settlement from the Turkaulia Factory on 13th February 1922, by their father Kripal Narain Singh and certain other persons. According to the plaintiff, the settlees were (1) Kripal Narain, (2) defendants 2 and 3, who are brothers (3) Chaturbbuj Sahay deceased, father of defendants 5 and (4) Jadulal deceased, father of defendant 1, whereas defendant 4 denies that Chaturbhuj and Jadulal had any interest in the property: The Courts below did not find it necessary to investigate this point, as they were merely concerned with the share of Kripal Narain and the parties were in agreement that his share was one-half.

3. In the year 1929 the tenancy was sold in execution of a certificate for arrears of rent filed by the Battiah Estate, to whom the landlords interest had by then passed, and was purchased by defendant 4, the brother-in-law of defendant 3. The case of the plaintiff is that this sale was brought about by the fraud of defendants 2 and 3, who were managing the property on behalf of all the co-sharers, and that they purchased it themselves in the farzi name of defendant 4, that the possession of defendants 2 and 3 remained unchanged and that, by reason of the fraud, the purchase enured to the benefit of all the co-sharers. It was further their case that, the certificate have been filed against defendant 2 alone, the sale had the effect of a money sale ; therefore, only the share of defendant 2 passed, and the share of Kripal Narain remained unaffected.

4. The defence of defendant 4 was that his purchase was genuine and on his own account, that Kripal Narain surrendered his interest in 1925 and, therefore, his sons had no interest which they could transfer by the sale in favour of the plaintiff and further that, after the surrender by Kripal Narain, the tenancy was wholly represented by defendant 2 and so the certificate sale operated as a rent sale. He also attacked the genuineness of the sale in favour of the plaintiff.

5. The Subordinate Judge disbelieved the story of surrender. He found that Kripal Narain and defendant 2 were at first recorded in the landlords papers as tenants in respect of the tenancy and, after the death of Kripal Narain, his son defendant 6 was mutated in his place, that, therefore, defendant 2 did not represent the tenancy and the certificate sale left the share of Kerpal Narain unaffected. He held that defendant 4 was merely the farzidar of defendants 2 and 3, and that the sale was brought about by defendants 2 and 3 in fraud of their co sharers. He further held to be fictitious a zarpeshgi deed executed by defendant 4 in favour of defendant 9 in respect of this tenancy. According to him, the possession of defendants 2 and 3 as managing the property on behalf of all the co-sharers remained unchanged by these transactions. He dismissed the suit, however on the finding that the sale in favour of the plaintiff was itself fictitious.

6. The District Judge accepted all the findings of the Subordinate Judge in favour of the plaintiff. He came to a contrary conclusion on the question of the genuineness of the sale-deed in favour of the plaintiff, and, therefore, reversed the decree of the Subordinate Judge and decreed the suit.

7. The appeal has been pressed on three grounds: 1. That the decision of the District Judge is defective as he has not come to a definite finding regarding the farzi nature of the purchase by defendant 4. 2. That defendant 2 represented the holding, and the sale operated to transfer the interest of Kripal Narains sons. 3 That, even on the findings of the District Judge, the plaintiff wa