ASHUTOSH SANYAL Vs. RAM SANKAR GHOSE

JUDGEMENT

(1.) Defendant 1 is the appellant in this case and the appeal arises with reference to a suit brought by Kali Das Ghosh, the original plaintiff, for setting aside a revenue sale and for a declaration to the effect that the sale in question did not affect adversely his rights as reversioner in respect of certain property. The plaintiff alleged that his sister-in-law Rajanibala Dasi, in order to defeat his reversionary rights, had defaulted in the payment of Government revenue in respect of Tauzi No. 305/1 of the Hughli Collectorate and that in consequence this property was put up to auction and purchased by her Gomasta Ashutosh Sanyal who acted as her benamidar with reference to this matter. It was contended that the sale was fraudulent and collusive and was a benami transaction. The suit in the Court of first instance was contested by defendant 1 Ashutosh Sanyal, and his case was supported by defendant 2 Rajanibala Dasi. They maintained that the sale was a bona fide transaction. It was held by the first Court that the sale which took place on 25 March 1925 could not be set aside, but the plaintiff was granted a declaration to the effect that it was a collusive and benami sale and would not be binding on the reversioner upon the death of Rajanibala Dasi. On appeal the learned Additional District Judge accepted the findings of the Court of first instance and dismissed the appeal.

(2.) It has been contended before us by the learned Advocate for the appellant that, having regard to the provisions of Section 33, Act 11 of 1859, the declaration granted by the Court of first instance and affirmed by the lower appellate Court should not have been made inasmuch as such a declaration really has the effect of nullifying the revenue sale which was held on 25 March 1925. The learned Advocate also placed reliance upon an order passed by the Commissioner dated 8 June 1925 in which it was held that the plaintiff, who was the appellant in that case, had no locus standi in the matter of setting aside the revenue sale. With regard to this point however it must be remembered that the revenue sale dated 25th March 1925 has not actually been set aside although the plaintiff has obtained a declaration to the effect that the sale was benami and not binding on him in his capacity as reversioner. It is further urged by the learned Advocate for the appellant that no allegation to the effect that the sale was a fraudulent transaction was made until the plaint was amended as a result of an application which was filed on 13 July 1928. The relevant portions of the pleadings have, however, been placed before us and it seems to be clear that, when the case first went to trial the plaintiff's case was that the sale, to all intents and purposes, was a fraudulent, collusive and a benami transaction and adversely affected the plaintiff's reversionary rights. The law with regard to this matter has been clearly stated in the judgment of Mr. Justice Costello, in Anantalal Sarkhol V/s. Saudamini Guha 1930 Cal 621, the facts of that case being very similar to those connected with the case which is now before us. In Anantlal's case (1) Mr. Costello pointed out that: It does not appear upon the authorities that a person who has a substantial interest which is liable to be affected by the sale is debarred from bringing a suit by anything which appears in Section 33, Act 11 of 1859.

(3.) He further held that when such a suit was based on a definite allegation of fraud that was of itself sufficient to entitle the plaintiff to relief provided that he proved that fraud had been committed and that the plaintiff's right residing in him had been adversely affected. Having regard to the state of the pleadings in the case out of which this appeal arises and the findings of both Courts, it is clear that the plaintiff had an interest in the property which was sold on 25 March 1925 and that this interest was adversely affected by the sale. It is also clear that he based his case on the allegation that the sale was a fraudulent, collusive and benami transaction. This being the case, we are of opinion that there is nothing in Section 33, Act 11 of 1859 which debars him from bringing the suit out of which this appeal arises. It is next contended by the learned Advocate for the appellant that in any case it has not been established that the sale was in fact fraudulent and collusive and it is argued that the findings of the lower appellate Court are insufficient to enable such an inference to be drawn. With regard to this point, it must be remembered that, having regard to the state of the pleadings, the plaintiff is clearly entitled to the declaration that he has obtained if it is clear that in the matter of the sale of 25 March 1925 Ashutosh Sanyal merely acted as the benamidar of Rajanibala Dasi. On this point there are clear concurrent findings of fact in both Courts to the effect that the purchase by Ashutosh Sanyal was of a benami character and these findings are based on inferences which, in our opinion, are correctly drawn from the circumstances of the case, for instance, it has been found that Rajanibala had a sufficient income to pay the comparatively small amount of revenue which was due in respect of the property sold. It has also been found that she was on bad terms with the plaintiff and that the property had been purchased ostensibly by her Gomasta Ashutosh Sanyal on whom she could depend to reconvey it to her later on. There is also a finding with regard to the spurious nature of certain accounts filed by Ashutosh Sanyal. We are of opinion that the findings with regard to the character of the transaction are based on proper inferences from the facts and circumstances of the case and that the plaintiff is clearly entitled to the declaration which he has obtained. In this view of the case the decision of the lower appellate Court must be affirmed and this appeal is dismissed with costs. S.K. Ghose, J.