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HIGH COURT OF ORISSA
Narasimham And Mohapatra, JJ.
BALABHADRA MISRA - Appellant
Versus
SRIMATI NIRMALA SUNDARI DEVI - Respondent
Second Appeal 303 Of 1948
Decided On : JULY 13, 1953
REVENUE SALE - CO-SHARER PURCHASER - EQUITABLE RELIEF - CONDITIONS - TRUSTS ACT, SECTION 90 - BENGAL LAND REVENUE SALES ACT (ACT 11 OF 1859), SECTION 9.
Fact of the Case:
Plaintiff claimed reconveyance of the disputed property from defendant 1 on the ground that the revenue sale was brought about by fraud practiced by a co-sharer proprietor. The plaintiff's husband and defendant 2 were on terms of bitter enmity. Defendant 1 had deposed on behalf of defendant 2 in an adoption suit. The plaintiff alleged that defendant 1 was an intimate friend and practically a tool in the hands of defendant 2. Defendant 2 purchased the disputed property in the revenue sale and subsequently conveyed it to defendant 1.
Finding of the Court:
The court found that the plaintiff acquired title to the suit property by virtue of her 'kabala' (Ext, 6-a) dated 2-3-40 and that it was not the intention of the parties that the title should pass only after payment of the consideration. The court also found that the revenue sale and purchase of the 'touzi' by defendant 2 were brought about in pursuance of a fraudulent conspiracy on the part of defendants 1 and 2 and the Choudhuries (defendants 3 to 8) with a view to extinguish the plaintiff's right in the suit property and that the equitable principles of Section 90, Trusts Act, would apply to the present case.
Issues: 1. Did the plaintiff acquire title to the suit property by virtue of her 'kabala' (Ext, 6-a) dated 2-3-40? 2. Is the plaintiff entitled to any relief under the equitable principles of section 90, Trusts Act, on the ground that the revenue sale was brought about by fraud practised by a co-sharer proprietor?
Ratio Decidendi: 1. The court held that the plaintiff acquired title to the suit property by virtue of her 'kabala' (Ext, 6-a) dated 2-3-40. The court found that there was nothing in the sale-deed from which it could be inferred either expressly or by implication that the intention of the parties was that title should remain with the vendors until the passing of the consideration. 2. The court held that the plaintiff was not entitled to any relief under the equitable principles of section 90, Trusts Act, on the ground that the revenue sale was brought about by fraud practised by a co-sharer proprietor. The court found that there was no evidence to show that defendant 1 was guilty of any sharp practice or anything unfair. The court also found that there could be no question of mutual confidence between defendant 1 and the plaintiff who were both then on bitter terms of litigation.
Final Decision: The court allowed the appeal, set aside the judgment and decree of both the Courts and dismissed the plaintiff's suit with costs throughout.
NARASIMHAM J.
( 1 ) 'touzi' No. 2717/3 of Cuttack Collectorate, bearing a 'sadarzama' of Rs. 2, 701/3/-, originally belonged to Gajarajpur Choudhuries represented by defendants 3 to 8 in this litigation. In that 'touzi' were included two villages known as Korkar and Erada bearing a 'sadarzama' of Rs. 846/ -. The said two villages had been previously mortgaged by the Choudhuries with Sri M. S. Rao, an Advocate of cuttack. On 2-3-40 the Choudhuries registred a 'kabala' (Ext. 6-a) purporting to convey their-entire interest in the said two villages in favour of the plaintiff for a consideration of Rs. 1,205/--On the same day the said vendors registered another sale deed (Ext. 6) transferring to the plaintiff for a sum of Rs. 975/- their right to recover arrear rental in the said two 'mouzas' In the second sale-deed (Ext. 6) it was stated that the vendors had transferred their proprietary interest in the two villages to the plaintiff and that they were, therefore, transferring their right to recover arrear rental from the tenants of the villages in favour of the new proprietor. On 5-3-40 the entire consideration of the second 'kabala' (Rs. 975/-) was received by defendant 3 on behalf of the Choudhuries and the original 'kabala' (Ext. 6) was handed over to the plaintiff along with a receipt Ext. 1. The original of the main 'kabala' (Ext. 6-a) relating to the transfer of the proprietary interest in the two villages, however, remained with the vendors as some differences arose between the parties regarding the procedure to be adopted for payment of the money to the mortgagee, namely, Sri M. S. Rao, before obtaining delivery of the document. On 15-6- 1940 a notice was issued by the Advocate of the Choudhuries calling upon the plaintiff to pay the entire consideration money of the 'kabala' within seven days. The plaintiff also sent a reply notice through her Advocate (Ext, 5) on 31-8-40 expressing her readiness and willingness to pay, the consideration to the mortgagee and obtain custody of the document. There was exchange of telegram and letters between the parties on 3-8-40, and 58-40. On 5-8-40 the Choudhuries executed a 'nadavi' deed (Ext. B) cancelling the previous sale-deed executed by them in favour of the plaintiff and on the same day executed another sale-deed (Ext. A) conveying their proprietary interest in the two villages to defendant 1. This led to a dispute between the plaintiff and defendant 1 as to whose title to the villages should prevail. As is to be expected, the dispute was first fought in the mutation proceedings before the Collector under the Bengal Land Registration Act. Defendant 1, however, succeeded in getting his name mutated on 29-10-41. He paid his quota of the Government revenue; but his co-sharers in the 'touzi' namely, the Choudhuries (defendants 3 to 8) defaulted in payment of their quota and on 13-3-42 'touzi' No. 2717/3 was put up for revenue sale for arrears of revenue and purchased ,by defendant 2, Dewan Bahadur Lakshmidhar Mohanty, who is a senior Advocate of Cuttack Bar. On 13-10-42 he conveyed the proprietary interest in the two villages in favour of defendant 1, Subsequently, in December 1942 and January 1943 he conveyed other portions of the said 'touzi' in favour of defendants 3 to 8 and also in favour of de-fendants 10 and 11 retaining a small portion of the 'touzi' for himself.
( 2 ) THE plaintiff's case was that the title to the two 'mouzas', namely, Korkar and erada had been completely transferred to her by the Choudhuries as soon as the first 'kabala' (Ext. 6-a) was registered on 2-3-40. The Choudhuries had, therefore, no right to cancel the 'kabala' and re-transfer the said two villages in favour of defendant 1 by their second 'kabala' (Ext. A) and that no title passed by that 'kabala'. The plaintiff further urged that defendant 2 entered into a fraudulent conspiracy with defendant 1 and the Choudhuries for the purpose of extinguishing the rights of the plaintiff and that in pursuance
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