AKSHAYKUMAR NATH TALUKDAR Vs. AHMAD ALI HOWLADAR

JUDGEMENT

(1.) This case is somewhat unusual and just a little difficult. It seems that there was a revenue-paying estate, Taluk Kamalakanta Chakrabarti, divided into two separate accounts. One was estate No. 1536. That belonged to defendant 1 and also to the father of defendants 5 to 12. The other account was No. 1536/2 and that was a separate hissa, 1 anna 12 gandas 2 karhas of the same taluk and belonged to the plaintiffs. The plaintiffs estate, by reason of some chicanery on the part of the predecessor of defendants 5 to 12 was sold for arrears of revenue in 1921, and was purchased by him. The plaintiffs brought a suit to have it declared that the sale was bad and, before they got a decree, in September 1928, the march kist for 1923 fell due. Estate No. 1536/2 was again sold for default of revenue and it was purchased by defendant 4, who was not a cosharer in either of the two accounts. He sold it to defendant 3, who sold it to defendant 1, in the berami name of defendant 2. Thereupon, the plaintiffs bring their suit, first of all to set aside that sale and this part of their suit has been dismissed by both the Courts. Secondly, they claim that defendant 1, who is a cosharer in No. 1536, is liable to hold what he bought, namely estate No. 1536/2, on account of the plaintiffs, subject to their contributing what he had paid. The case made by the plaintiffs is to this effect: they say that, while they were fighting to recover this estate from defendants 5 to 12, whose father had bought it at the first sale, defendant 1 was a party to an arrangement not to call it a conspiracy--with defendant 5 to the effect that the revenue in both these estates should not be paid for the kist of 1923 and that they were acting in concert with the idea that both estates would be sold, but would be sold to somebody who would make the taluk over to defendant 1.

(2.) Their case is that defendant 5 and defendant 1 were really colluding to pro-cure a default in the revenue and to procure a sale, which would vest the plaintiffs estate in defendant 1. Now the first question is whether that case, if it is made out on the facts, is a good case and would entitle the plaintiffs to the relief, which the learned Subordinate Judge has given, that is to say, an order on defendant 1 to reconvey the plaintiffs share to the plaintiffs on the plaintiffs depositing the auction purchase money with proper stamp in Court. It has been contended on behalf of the appellants that it is not so. It is said that defendant 1 was not directly liable for any portion of the revenue for No. 1536/2, that separate account: and that the only case in which any amount of scheming would entitle the plaintiffs to get such an order against their cosharer is a case where the cosharer is liable to pay the revenue and makes default in paying the revenue. That certainly has-been the commonest class of cases in the law reports and that was the case before the Privy Council in Deo Nandan Prashad V/s. Janki Singh A.I.R. 1916 P.C. 227. But it seems to me that an principle, it is difficult to. nay that the matter depends upon the cosharer being directly liable to pay the revenue. If the cosharer, although not; liable to pay the revenue on this particular joint account, goes and arranges with another and procures with him that there shall be a default in order that the cosharer may ultimately purchase, that seems to be conduct inconsistent with any relation of mutual confidence between cosharers and, if so, equity can give a remedy. At one time it was broadly held that there was no fiduciary relationship at all between cosharers [Doorga Singh V/s. Sheo Parshad [1889] l6 Cal. 194], but if there is any such relation between co-sharers, can it be limited to this: that each will pay his own share of the revenue ? The essence of the matter is the procuring of a revenue sale in order to defeat the other's interest. Defendant 1 was not liable to pay the revenue, but that is no reason why he should enter into an arrangement with defendant 5 that defendant 5 should not pay in order that there might be a sale and that defendant 1 should get the plaintiffs property. The one kind of conduct; would seem to be just as much fraudulent or wrongful as the other, always provided that the plaintiffs and the person, who so acts, are cosharers.

(3.) In the present case, the plaintiffs and defendant 1 are in strictness cosharers. There is a separate account for the one anna 12 gandas 2 karhas. hissa, it is true; but if people interested in one account do not pay the Government revenue, it is in some circumstances possible, as between the Government and the holders, for the Government to sell the whole estate as an integral whole in order to recover the revenue in default and therefore it seems to me that defendant 1 is technically a cosharer of the plaintiffs. The plaintiffs cleanly would have been entitled to object to his making default on No. 1536 with the intention of imperiling No. 1536/2 and purchasing both by a nominee on his own account. Now the lower appellate Court finds that, as part of his scheme to deprive the plaintiff's of their property, he deliberately procured that default should be made in payment of the revenue on both estates and although, in fact, the estates were separately sold, I am not of opinion that on these facts the plaintiffs are without remedy. Of course, if defendant 1 had not intentionally procured the default which resulted in the revenue sale, he would have been entitled to purchase the plaintiffs estate for himself. I cast no doubt upon that at all. But that is not this case.