P L D 1960 Dacca 334 (PLP)

(6) The signatures in the power and written statement filed by defendant No. 2 are quite different, even in the eye of a lay man, from that of defendant No. 2 in his deposition which shows that there must be some one behind who was, in fact, conducting the case:

10. The trial Court held:

"Considering the facts and circumstances and the evidence discussed above, I have come to the irresistible conclusion that defendant No. 2 is merely a benamdar for defendant No. 1 and defendant No. 1 wilfully made default and auction purchased the jote fraudulently and, as such, I find that defendant No. 2 did not acquire any interest whatsoever in the jote in suit by the alleged revenue sale, dated 23‑6‑53, and the same should be set aside." On appeal, though the learned Subordinate Judge held that the suit for bare declaration that the sale was a fraudulent sale and the purchase by defendant No. 2 is really a purchase by defendant No. 1 in the benami of defendant No. 2 is maintainable, as it would save the under‑raiyati of the plaintiff from annulment and the plaintiff's right, title and interest in the whole of the land of the jote would stand, yet he dismissed the suit holding that the evidence on record was‑not sufficient to hold that the purchase by defendant No. 2 was a benami purchase by defendant No. 1.

11. In coming to the above finding, the learned Subordinate Judge did not consider the materials on which the trial Court relied, particularly Exhs. 9 (a) and 9 (b), certified copies of the Sale Register showing that P. W. 1 Saleh Ahmed and defendant No. 1 were present at the sale on 25 6‑53 which conclusively corroborated the evidence of P. W. 1 that he saw defendant No. l purchase the jote in the benami of defendant No. 2 and that defendant No. 1 paid the earnest purchase money, nor has be learned Subordinate Judge considered the evidence of P. W. 1, though he referred to the Sale Register by name and the evidence of P. W. 1 while referring to tee basis of the finding of the trial Court. What he has said instead is that it was doubtful whether by the subsequent Revenue sale the tenant's compensation would be affected when such a compensation was to be assessed on the basis of actual possession existing at the time of acquisition in 1952‑53 overlooking the facts that defendant No. 2 has already put forward his claim to the compensation money and objected to the payment of the same to the plaintiff duty to the auction sale of the jote and that the title of a purchaser in Revenue Sale takes effect net from the date of the sale but from the latest date of payment); that the memory of the pleader (P. W. 1) was seriously tested in cross‑examination which the pleader did not appear to have stood well and that stray writing by defendant No. 2 should not have been taken by the trial Court as proof of the agency of defendant No. 2 for defendant No.

1. This' much and no further. Then he referred to the taking of the sale certificate, annulment of the incum brances, taking of delivery of possession by defendant No. 2 and his solvency. These are besides the point. As the purchase stands in the name of defendant No. 2, all these things are bounds to be in his name and his solvency was not disputed by anybody. Then he abruptly came to the finding that the evidence on record is not sufficient to brand the purchase as benami one simply because defendant No. 2 happens to be a relation of defendant No. 1.

12. So, Mr. Guha, the learned Advocate for the appellant contends that the trial Court on evidence has come to the irresistible conclusion that defendant No. 2 is the benamdar of defendant No. 1 who fraudulently brought about the sale by his wilful default and fraudulently purchased the property in the benami of defendant No. 2, but the lower Appellate Court in reversing those findings has not adverted to the reasons given by the trial Court nor has he considered the material facts and circumstances relied on by the trial Court in arriving at those findings and, as such, the judgment anti decree of the lower Appellate Court cannot be maintained.

13. I think this contention of Mr. Guha for the appellant is of substance.

14. On the other hand, Mr. Pal, the learned Advocate for the respondents, who could not support the judgment of the lower Appellate Court in view of the evidence on record and the circumstances disclosed, contends that the suit, as framed, namely, for setting aside the sale is not maintainable as the Revenue Sale Law does not prohibit purchase by the defaulting proprietor either in his own name or in the benami of some one and, as such, the sale is not liable ‑to be set aside, as it does not come under section 33 of the Revenue Sale Law and so it is immaterial to consider whether the sale was fraudulently brought about by defendant No. 1 and whether he purchased it in the benami of defendant No. 2.

15. That is exactly what has been held an the case of Doorga Singh v. Sheo Prashad Singh (I L R 16 Cal. 194), where a defaulting co -sharer fraudulently purchased the mahal in a Revenue sale in the benami of some other person. But their Lordships of the Privy Council in the case of Deonandan Prashad v. Janki Singh and others (LR441A30) pointed out that the decision in Doorga Singh's Case had not stood unquestioned and held at page 34 of the report :‑

"The decision in Doorga Singh s case applied too lax a standard of reciprocal conduct in holding that fraud in its strictest sense, such as would support a common law action for deceit, was the test by which to judge these transactions. It failed to pay due regard to the relative position of co‑owners in respect of the payment of revenue and to the need of demanding from each such a measure of candid dealing and good faith as would ensure that a sharer would not be tempted to make a deliberate default with a view to ousting his co -sharers and appropriating to himself their common property. Hence Deonandan, through his representatives, had a duty to perform which was inconsistent with his becoming a purchaser of the property in the way he did ; therefore, his title cannot operate to the exclusion of the co‑owners. It is no answer to say that the Act contemplates a purchase by a sharer ; the sale stands but, in the circumstances, the transaction is in effect nothing more than payment of an arrear of revenue ensuring for the benefit of all".

16. In the case of Kumar Satishkhantha Roy and others v. Satish Chandra Chatterjee and others (30 C L J 475 (487)), referred to by Mr. Guha, the learned Advocate for the appellants, the High Court of Calcutta, relying on the observation of the Privy Council in Doorga Singh's case as well as in the case of Nawab Sidhee Nuzur Ally Khan v. Rajah Ojoadhyaram Khan (10 M I A 540 (557)), held :‑ "The Court will strip of all disguises from a case of fraud and look at the transaction as it really is; because `fraud is, an extrinsic collateral act which vitiates the most solemn pro ceedings of Courts of justice', and, in the words of Lord Coke, `avoids all judicial acts, ecclesiastical or temporal.' In cases of this character, the Court holds that the sale has no higher effect than a private alienation . . . . . This is plainly a rule of honesty and fair dealing ; no party to a fraudulent transaction can be allowed to derive any benefit from it, and the Court is always reluctant to condone the fraud and permit the participants therein to retain the advantage." This decision of the Calcutta High Court was affirmed by the Privy Council in the case of Satish Chandra Chatterji v. Kumar Satish Nath Roy and others (28 C W N 327), where the Privy Council held at page 332 :‑

"Charges of fraud and collusion must be proved by those who make them‑proved by established facts or inferences legitimately drawn from those facts taken together as a whole. Suspicions and surmises and conjecture are not permissible substitutes for those facts or those inferences, but that by no means requires that every puzzling artifice or contrivance resorted to by one accused of fraud must necessarily be completely unravelled and cleared up and made plain before a verdict can be properly found against him. If this , were not so, many a clever and dexterous knave would escape."

17. In this view of the matter, their Lordships of the Calcutta High Court as well as those of the Privy Council gave the plaintiff co‑sharer relief in the shape of a declaration that the sale was fraudulent and, as such, it will have no higher effect than payment of arrears of revenue or a private alienation in a suit for setting aside the sale on account of fraud.

18. The principle enunciated in these cases in respect of fraudulent purchase by a defaulting co‑sharer to deprive the other co‑sharer, I think, is applicable with greater force in the case of fraudulent purchase by the proprietor to defraud and deprive the subordinate interest‑holder by avoiding such interest under the stringent provisions of the Revenue Sale Law framed for speedy realisation of Government dues but utilised for the accomplish ment of private and fraudulent object:

19. Therefore, the question to be determined in this suit is whether the sale was brought about fraudulently by defendant No. 1 and then he purchased the property in that sale in the benami of his relation, defendant No.

2. The evidence discussed and the circumstances disclosed from the evidence and relied upon by the trial Court leave no room for doubt that the sale was pre‑arranged and brought about fraudulently by defendant No. 1 by making intentional default in payment of revenue to deprive the plaintiff of his property and of the compensation money awarded or to be awarded to him and purchased the property in the benami of his sister's husband defendant No. 2, who will hold the property for the benefit of defendant, No.

1. I cannot agree with the learned Subordinate Judge that the evidence is not sufficient to brand the purchase by defendant No. 2 as a benami one, but I entirely agree with the trial Court and hold that the sale is fraudulent and defendant No. 1 purchased the property in that sale fraudulently in the benami of defendant No.

2. The proprietor making the default intentionally‑there is no reason for his default‑put the machinery of law into operation to cause injury to the plaintiff and purchased the property in the benami of defendant No. 2 who was to hold the property for the benefit of defendant No. 1, a participator in the fraud.

20. Mr. Pal contended that the principle enunciated in the cases which are in respect of fraudulent purchase by a co‑sharer cannot be extended to the purchase by the proprietor even if the sale and the purchase are fraudulent and to the detriment of the subordinate interest‑holder, as the relative position of the co -owner is not the same as the relative position between the proprietor and his subordinate interest‑holder. I do not find any reason why the same principle should not be applied in a sale fraudulently brought about by the proprietor who purchased in the benami of his relation to deprive the subordinate tenure holder of his subordinate interest in the land of the Mahal. The difference, Mr. Pal tried to make out, is a difference without any distinction in principle. Mr. Pal could not support this contention .by any provision of law or any authority cited before me. His contention is that the absence of authority is itself a proof that the principle is not applicable in case of fraudulent sale and purchase by a proprietor to the detriment of the under tenure‑holder.

21. The trial Court on a consideration of the material evidence and the circumstances held that it was a fraudulent sale but the lower Appellate Court held otherwise, namely, that the evidence on record was not sufficient to brand the sale as a benami one. But, in arriving at this finding, the learned Subordinate Judge has neither considered the material evidence, on which the trial Court relied in arriving at those findings, nor has he adverted to the reasons given by the trial Court. A finding of facts by the first Appellate Court without consideration of the material and circumstances on which the trial Court bases its decision is not binding in Second Appeal [vide A. H. Md. Ismail v. Sachchidananda Bhattacherjee (40 C W N 769)].

22. Further if the decision depends upon the appreciation of oral evidence in the case, the Appellate Court has got to bear in mind that it has not the advantage to observe the manner in which the witnesses deposed in the trial Court; but that certainly does not mean that, when an appeal lies on fact, the Appellate Court is not competent to reverse the finding arrived at by the trial Court, but there must be cogent reasons for the same. Vide Saraveeraswami alias Saraveeraju v. Talluri Narayya (A I R 1949 P C 32), and Watts or Thomas v. Thomas (1947 A C 484). But the judgment of the learned Subordinate Judge does not show any such reason. Therefore, the judgment and, decree of the learned Subordinate Judge cannot be maintained and it is liable to be set aside.

23. This` position has not been disputed by, Mr. Pal for the respondents. His contention on the other hand is that when the sale is not liable to be set aside under the law on the ground of benami purchase, even if it is fraudulent, it is immaterial whether the finding of benami was properly arrived at or not. I cannot accept this position as correct, in view of the reported decisions quoted above. Though the sale is not liable to be set aside and it will stand, the Court can safely declare, on account of the fraud and fraudulent purchase by defendant No. 1 in the benami of defendant No. 2, that it will not have any higher effect than payment of arrears of revenue or than a private alienation, as has been held in the reported cases cited above.

24. Mr. Pal contends that even those cases, particularly in the case of Deonandan Prashad v. Janki Singh and others, there are appropriate prayers for the relief granted by their Lordships of the Privy Council, namely, a prayer for a decree for possession and mesne profits and alternatively the plaintiffs' claim to recover the value of the property or that there should be a conveyance ordered. But none of these prayers cover the relief granted to the plaintiffs in that suit, namely, a declaration that the sale would not have any higher effect than a payment of arrears of revenue or than a private alienation. (Reconveyance granted in that case was necessary because of the aforesaid declaration. In the present case, no question of reconveyance arises as the plaintiff does not claim interest in the jote itself but an under raiyati interest under the jote. The principle is, as enunciated in the case of Kumar Satish Kantha Roy and others v. Satish Chandra Chatterjee and others "The Court will strip of all disguises from a case of fraud and look at the transaction as it really is . . . . . This is plainly a rule of honesty and fair, dealing; no party to fraudulent transaction can be allowed to derive any benefit from .it, and the Court is always reluctant to condone the fraud and permit the participants therein to retain the advantage." So, in view of this principle, I am unable to accept the contention of the learned Advocate for the respondents that for want of appropriate prayer in the plaint the relief cannot be given.

25. To meet this contention of Mr. Pal, the appellant has also filed an application, during the hearing of this appeal, for amendment of the plaint, praying for a declaration that the sale has not the effect of a revenue sale and it has not affected his under‑raiyati, in case the sale is not liable to be set aside. I accepted the said application and, in fact, I delivered my judgment on 1‑6‑59 and allowed the appeal and sent the case back on remand to the trial Court as prayed for by Mr. Pal. for fresh trial in the light of the amendment prayed for.

26. But, while scrutinising the transcribed judgment, I came across the decision reported in L R 44 I A 30, and their Lordships' observation about the correctness of the decision in Doogra Singh's case, the decision reported in 28 C W N 327, besides the case reported in 30 C L J 475, and found that, in the circumstances of the case, relief can be given without setting aside the sale and without amendment of the plaint as has been given in those cases. So I put the appeal for further hearing after informing the learned Advocates of both the parties as to why the principle enunciated by their Lordships in the cases mentioned above should not be applied to the facts of the present case and why the relief in the shape given by their Lordships in those cases should not be given in this case and heard them again. I do not think that the amendment of the plaint is necessary for the relief prayed for. So, I do not propose to pass any order on that application and I simply keep it on the record.

27. The result, therefore, is that this appeal is allowed with costs and the judgment and decree of the lower Appellate Court are set aside and those of trial Court restored with this modifica tion that the sale will stand; as it was within the jurisdiction of the Collector when there was arrears of rent or revenue, but, certainly, in the circumstances of this case, it will not have any higher effect than payment of arrears of revenue or a private alienation.

28. Leave prayed for under clause 15 of the Letters Patent is refused. K. B. A. Appeal allowed.