LALLU SINGH Vs. LALA CHANDER SEN

JUDGEMENT

(1.) This is a reference to a Full Bench, and it has arisen out of a second appeal. The points that will have to be determined by the Full Bench will be stated presently. The facts are as follows:

(2.) One Lakshmi Kunwar was the owner of a certain share in a certain village. She was entitled as such co-sharer to certain profits for the year 1334 Fasli as against the appellant, Lallu Singh, who is the lam. bardar of the mahal in which the share lies. The profits fell due to her on 1 August 19 27, and two days later, on 3rd August 1927, she assigned her right to recover the profits to the respondent Chandra Sen, Chandra Sen brought the suit out of which this second appeal arose for recovery of the said profits. In the years 1332 and 1333 Fasli, Lakshmi Kunwar failed to pay her share of the land revenue. Lallu Singh had to pay the same as the lambardar. He filed a suit for recovery of the sums thus paid by him and obtained a decree against Lakshmi Kunwar. It is alleged that Lakshmi Kunwar's property had been sold and she had nothing out of which Lallu Singh could) recover the amount for which he had obtained a decree, except the profits for the year 1334 Fasli. When Chandra Sen brought the suit, Lallu Singh pleaded inter alia that the transfer in favour of Chandra Sen was a fictitious one, having, been made to defeat Lallu Singh's claim for reimbursement out of the profits ostensibly sold. Lallu Singh claimed credit for the amount due to him under the decree as against the profits.

(3.) The Court of first instance dismissed the suit holding that the transfer in, favour of Chandra Sen was a fictitious one and did not entitle him to maintain, the suit. On appeal by the plaintiff, the then District Judge, Mr. Raghunath Prasad, held that although there was every probability of the transfer in favour of Chandra Sen being a fictitious one yet there was no clear allegation of fraud, and,, therefore, the learned Judge held that the suit was maintainable. He, however, further held that the plaintiff could recover the profits claimed on the same condition on which the Mt. (Lakshmi Kunwar) could have done if she herself; had filed the suit against the respondent.