BASWALI SHEIKH Vs. MATANGI CHARAN GHOSE

JUDGEMENT

(1.) I regret I cannot interfere in this matter. The learned Munsif held that there has been gross under-valuation amounting to fraud. The holding consists of several acres containing paddy land, bastu, doba and tanks. It was valued at Rs. 501.00 only. It was sold for Rs. 161-3. There is evidence on the record showing that the property is worth Rs. 6,000.00. The decree-holder is the landlord and had certainly means of knowledge of the actual value of the property. There is no doubt that he well knew the real price of the holding and in stating that the value of the property is Rs. 50.00 he is guilty of deliberate fraud. The learned District Judge was in error in reversing this finding of fraud. He held that though gross under-valuation raises a presumption of fraud, that presumption had been rebutted by the positive evidence of service of the processes. In my opinion, the fraud to be inferred from the deliberate under-valuation is not to be necessarily rebutted by clear evidence of service. The cases reported in Marudanayagam Pillai Vs. Manickavasakam (1) (49 C.W.N. 292 P.C. : 72 I.A. 101 ) and in Manmatha Vs. Sachindra (2) (59 C.W.N. 1082 ), show that in spite of clear evidence of service of processes fraud may be inferred from gross under-valuation. Evidence of service is one of the considerations in determining whether fraud should be presumed from the under-valuation. Here the true value is 120 times the value shown in the sale proclamation The decree-holder being the landlord is also expected to be well acquainted with the price of the property. In such circumstances evidence of service does not rebut the presumption of fraud.

(2.) The fraud to be inferred from gross under-valuation is, however, not by itself fraudulent concealment within the meaning of section 18 of the Indian Limitation Act.: see Sarat Vs. Abdul (3) (49 C.W.N. 731) ; Abdul Janail Vs. Ambia (4) 43 C.W.N. 862 ; Narayan Vs. Mohanth Damodar (5) (16 C.W.N. 894) and Lord Bishop of Mylapore Vs. Mehar Ali (6) (41 C.W.N. 993).

(3.) The sale was held on the 21st Nov., 1952. The application for setting aside the sale was made on the 19th Aug., 1953. Unless the applicant obtains extension of time under section 18 of the Indian Limitation Act, the application is clearly barred by the law of limitation.