DHONENDER CHUNDER MOOKERJEE Vs. MUTTY LALL MOOKERJEE

JUDGEMENT

(1.) THIS was a suit instituted by the sons of Hurrish Chunder against Juggut Chunder, and Sreeman Chunder Mooherjee, praying, amongst other things, that a certain deed of assignment, dated the 23rd of June, 1854, of the Plaintiffs' shares and interest in a certain decree, which had been sold by Mohes Chunder Mooherjee to Juggut Chunder Mooherjee, might be declared as against them invalid and void as an absolute conveyance, "and that the said assignment might be decreed to stand as a security only for the sum of Rs. 5000, and for anything further which might be found justly due from the Plaintiffs to the Defendants." Mohes Chunder Mooherjee was made a party to the suit, but no relief was prayed against him. The ground upon which the bill was framed was that Juggut Chunder, who purchased the decree, stood in a fiduciary relation to the Plaintiffs, and that he had purchased the decree for an inadequate consideration. It appears that Doorga Churn Mooherjee was the father of Sib Chunder, Sumboo Chunder, andRamnarain; that Doorga Churn Mooherjee was possessed of considerable property, and having died, his three sons divided the estate. Sumboo Chunder took a portion of the estate, and Sib Chunder covenanted with Sumboo Chunder to discharge all claims against the estate of Doorga Churn. A claim was made against Sumboo Chunder and others, as representatives of Doorga Churn, and a decree was obtained against them for about two lacs of rupees. Sumboo having died, Juggut as one of his executors compromised the suit for Rs. 80,000, and, as such executor, brought a suit against the representatives of Sib Chunder to recover that amount and other moneys from his estate; and in that suit he obtained a decree for one lac and Rs. 70,000. That suit was brought by Juggut Chunder as the executor of Sumboo Chunder. The question is, whether, in that position, and in that character, he did not hold a fiduciary relation to the Plaintiffs in the suit. Sumboo Chunder died, leaving six sons, Juggut Chunder, who is the Defendant in this suit, Mohes Chunder, who is also made a party to this suit, Hurrish Chunder, Prawn Chunder, Gaily Chunder, and Sreeman Chunder; but Sumboo Chunder before he died made a will, by which he left his property to his five sons. Sreeman Chunder was not then born.

(2.) HURRISH Chunder died, leaving the Plaintiffs in the suit his heirs, and consequently Juggut Chunder held the decree which he recovered against the representatives of Sib Chunder in trust for the benefit of himself and his brothers, and as to the share of his brother Hurrish Chunder for the benefit of the Plaintiffs. Hurrish Chunder appointed Juggut Chunder and Mohes Chunder his executors; and Mohes Chunder, as one of the executors of Hurrish Chunder, sold the interest of Hurrish Chunder's sons to Juggut Chunder for the sum of Rs. 5000; in other words, he sold a fifth share of a decree for Rs. 170,000 for Rs. 5000. The Courts found that that was under value, and that an inadequate consideration was given by Juggut Chunder to Mohes Chunder for the purchase. It is said that Juggut Chunder, as one of the representatives of Hurrish Chunder, renounced. Whether he did so renounce, or could renounce, appears to be immaterial, provided he held in a fiduciary character, as executor of Sumboo Chunder, the share which belonged to the Plaintiffs as the sons of Hurrish Chunder. It is clear that he held the decree which he'recovered as executor of Sumboo in trust as to a share for the benefit of the Plaintiffs who were the sons of his brother Hurrish.

(3.) THE youngest son of Sumboo, Sreeman Chunder, was also made a Defendant in the suit. Sreeman Chunder is said to have been a party to the purchase by Juggut Chunder. He says that Juggut Chunder purchased the decree for the benefit of himself and Sreeman Chunder jointly. But if Juggut Chunder, holding the decree in a fiduciary position, could not purchase it for himself, could Sreeman Chunder employ Juggut Chunder, who held the decree in a fiduciary position, to purchase that decree for the benefit of himself and Sreeman Chunder jointly? It appears to their Lordships that the same objection would apply to Juggut Chunder s purchasing for himself and Sreeman jointly as there would be to his purchasing for himself alone. One of the reasons for setting aside transactions such as this, is, that the purchaser is presumed from his position to have better means than the vendor has of ascertaining the value of the property purchased. Well, then, if a person, knowing that another holds a fiduciary position, and has a better knowledge of the value than the vendor, employs that person to purchase for him, and the trustee purchases secretly in his own name for the benefit of that other, it appears to their Lordships that the sale is equally invalid against the person for whose benefit it is purchased by the trustee as it would be against the trustee himself; therefore it was not necessary in this suit to file a bill to set aside the sale merely as to half the estate as against Juggut Chunder, and to allow it to stand as to the other half for the benefit of Sreeman Chunder. If it became necessary to investigate the evidence, there does not seem to be sufficient to shew that Sreeman Chunder actually advanced any part of the purchase-money, or was really interested in the purchase.