HARIDAS SAHA Vs. DULAL CHANDRA SADUKHAN

JUDGEMENT

(1.) One Butto Krishna Sadhu-khan (defendant 2) was the owner of premises No. 182, Upper Chitpur Road, Calcutta, of a garden at Baranagore comprising an area of 1 bigha 18 cottahs being holding No. 83 in division 1, sub-division 6 of khas mahal estate No. 1068 and of other immovable properties. A yearly revenue of Rs. 6-4-6 was payable to the Collector of 24 Perganas for the aforesaid holding No. 83. He borrowed Rs. 18,000 from the plaintiff, Haridas Saha, and for securing the said loan mortgaged to the latter premises No. 182, Upper Chitpore Road and the Baranagore garden. This was on 23 August 1926. Thereafter he borrowed Rs. 26,000 from Mr. Moore on 8 October 1927 on the security of the aforesaid two properties and some other immovable property. In 1928 Mr. Moore brought a suit in the original side of this Court to enforce his mortgage. He impleaded Butto Krishna and Haridas as defendants. Mr. O. Ahmed (defendant 3), then a practising barrister, was appointed receiver of the mortgaged premises in May 1928. On 7 July 1928 he took possession of the mortgaged premises including the Baranagore garden. The said garden was unproductive, there being no tenants in it and it did not yield anything. The receiver simply put up a notice board at the garden indicating that he had taken possession. He appointed a part time clerk, Anil Kumar Mitter, at a monthly salary of Rs. 5 and through the said clerk collected Rs. 26 monthly from the tenants occupying some of the rooms of No. 182, Upper Chitpore Road. In November 1931 he was appointed an Assistant Registrar of this Court. He was not willing to continue as receiver but was prevailed upon to continue by the parties.

(2.) The preliminary decree in the said mortgage suit was passed in 1930 and the final decree on 4 May 1933. The Baranagore garden was sold at a revenue sale on 2l December, 1933 and was purchased by Dulal Chandra Sadhukhan (defendant l) for Rs. 1725. The amount of arrears for which it was sold was Rs. 6-3-6. After an unsuccessful appeal by the receiver to the Commissioner of the Presidency Division for reversal of the said sale the present suit was filed by the mortgagee, Haridas, on 25 July 1934. He prayed (a) for the reversal of the said sale on the ground that it was held contrary to the provisions of Act 11 of 1859 and alternatively (b) for a reconveyance from defendant 1 either to defendant 2, Butto Krishna, or to defendant 3, the receiver on the ground that the sale was brought about by the fraud of defendant 2 to which the auction-purchaser, defendant 1, was also a party. The learned subordinate Judge refused both the prayers. Haridas does not press his first prayer before us. He accepts the findings of the learned subordinate Judge relevant to that prayer. He only presses before us his alternative prayer, that is, his case based on fraud. Mr. Sen who appears for him states the case of fraud thus:

(3.) Defendant 2 lulled the receiver to a sense of false security by falsely representing to him that there was an excess deposit with the Collector, and so the receiver will not have to pay revenue during the period of his receivership, that if in future there was any notice for revenue he would hand over the notice to the receiver; that he got a notice from the Collector before the revenue sale informing him that the holding was in arrears but kept back the said notice from the receiver, with a view to purchase the property at the revenue sale either in the name of a friend or a creature of his thereby destroying the rights of his mortgagees and that defendant 1 who was his nephew and who eventually purchased at the revenue sale was either his benamidar, or if he was the real purchaser, there was a secret understanding between him and Butto Krishna by which the latter was to get back his property at a cheap price freed from the mortgages. We may at once say that the case of fraud as presented to us by Mr. Sen is an improvement on the case as pleaded in the plaint. We will, however, proceed to see how far the case presented by Mr. Sen has been established on the evidence. One thing is quite clear. Butto Krishna was under no duty to pay the revenue after the receiver had taken possession. It was the duty of the receiver to preserve the properties by paying the public demands. It is also clear that even if Butto Krishna is found guilty of the fraud imputed to him, the plaintiff cannot get the alternative relief, unless it can be shown that defendant 1 was a privy to the fraud designed by Butto Krishna or at least had notice of it before his purchase at the revenue sale. We will therefore consider these two points separately, e. g.,: (i) whether Butto Krishna was guilty of fraud and (ii) whether Dulal was a privy thereto or had notice of Butto Krishna's fraud before his purchase.