L.H. Jenkins, C.J.

1. Appeal No. 27. This is an Appeal under cl. 15 of theLetters Patent from a decision of Mr. Justice Nalini Ranjan Chatterjea. He hasnot finally decided the rights of the parties but has remanded the case,because it appeared to him that the treatment of the case by the lowerAppellate Court was unsatisfactory. Stated shortly, the case is this: ThePlaintiff claims a sale in land and claims that share notwithstanding thatthere has been a revenue sale which apparently extinguished her title. Theground on which the Plaintiff claims as against the Appellants in the twoAppeals before us is the Appellant in Appeal No. 27 of 1911, Defendant No. 1, adefaulting sharer with the Plaintiff, can only hold the property purchased byhim at the revenue sale subject to a trust in favour of the Plaintiff to theextent of her share. As against the Appellants in Appeal No. 28, that isDefendants Nos. 2 and 3, it is claimed that they are merely benamdars for DefendantNo. 1. The Munsif affirmed the Plaintiffs claim and passed a decree in herfavour, whereby in effect he declared the Plaintiffs title to a share in theland, awarded the Plaintiff khas possession of khas lands and possessionthrough tenants of tenanted lands, and also decreed wisilat.

2. The lower Appellate Court reversed that decree, and Mr.Justice Chatterjea before whom the case came on appeal was, as I haveindicated, dissatisfied with the treatment of the case by the lower AppellateCourt.

3. The gist of Mr. Justice Chatierjeas judgment is thatwhere a revenue sale is caused by the default of a co owner and the property isafterwards purchased at that revenue sale by that co-owner, there may be suchrelations between the defaulter and his co-owner, as would make it right forthe Court to treat such a sale as made for the benefit of both. He indicated inhis judgment certain conditions under which (in his opinion) some such rightwould arise. Doubtless, he did not intend that to be an exhaustive list of thecircumstances that would lead to such a result, nor is it our purpose toindicate at this stage what the circumstances are that may lead to such aresult. But we hold that there may be such circumstances, and that in this casethere may be circumstances which would make the decree passed by the Munsif aright and proper decree. We have been confronted with the decision in DoorgaSingh v. Sheo Pershad Singh (1), and also a decision of the Court of Appeal inEngland in Biss v. Biss [1903] 2 Ch. 40, 57, as well as a decision of the Houseof Lords in Kennedy v. De Trafford [1897] A.C. 180, all of which no doubt dogive colour to the view that ordinarily there is no fiduciary relation betweenco-tenants. So far as the English cases are concerned, they hardly would be asafe guide for us to follow in this country, because the relations that existbetween co-tenants in England and the consequences of those relations are verydifferent from those which obtain in this country. But, no doubt, every respectis due to the decision in Doorga Singh v. Sheo Pershad Singh I.L.R. 16 Cal 194 (1889), though it has to be borne in mind that two Benches of this Court havein unreported decisions [Chowdhury Ram v. Chowdhury Pawan Sinse reported 18C.L.J. 87 (1997), Janki v. Drbi 15 C.W.N. 776 (1910)] questioned the accuracyof the law as laid down in Doorga Singh v. Sheo Pershad Singh I.L.R. 16 Cal 194 (1889), if pushed to its extreme limits. It has been indicated and, doubtlessis true, that the rule which the Plaintiff seeks to invoke and enforce in thiscase is one resting on public policy, and what may be excellent public policyin England may not be such excellent public policy for India and vice versa.Now, we do and as a matter of fact that the Legislature in India has dealt withthis matter in the Trusts Act in a manner which wholly disagrees with the viewof public policy taken in the English cases to which we have been referred.Thus in sec. 90 we have a provision in regard to the advantages gained by aqualified owner and it is there enacted that where a qualified owner of anyproperty avails himself of his position as such and gains an advantage inderogation of the rights of other persons interested in the property, he musthold, for the benefit of all persons so interested, the advantage so gained.Qualified owners are not limited to tenants for life or mortgagees but includeexpressly co-owners, and there is a specific illustration to that section whichshows the way in which-a co-owner may be affected by this rule. I do not saythat the Trust Act applies here: but it is useful as indicating what is therule of public policy in he in the view of the Legislature, and it must beborne in mind that though the Act does not at present apply, it may be madeapplicable to this Presidency if thought fitter. All this shows that there maybe circumstances in which public policy in this Presidency would demand that aco-owner should hold an advantage which he has obtained in derogation of therights of other persons interested in the property, for their benefit as wellas his own. Whether or not the doctrine governs the rights of parties inparticular cases must depend upon facts as found and it is for that reason thatMr. Justice Chatterjea has refused to accept the judgment of the lowerAppellate Court and considered that the case had not been adequately treated.There is an obvious illustration of this furnished by the judgment:-I refer tothat passage where the learned Judge says of the Plaintiff that she haddeclared that she had been all along in possession of the property by receiptof its usufruct and then goes on to say "If this be true, it was her dutyto pay the share of the revenue payable for the property to save it fromsale." He should have found as a fact what the position was and not havebased the conclusion on an assertion by the lady which was denied by heropponent; and, similarly, it would be wrong to accept as correct, even from alegal point of view, the reasoning of the learned Judge as to the relations betweenDefendant No. I and the alleged benamdars. For these reasons I think that Mr.Justice Chatterjea was perfectly justified in the course he took. There must bea clear finding on all material facts, and when I say this, I bear in mind whathas been said to us by the Appellant, Defendant No. 1, that a part of his casehas not been dismissed at all by the lower Appellate Court If that be so, thenobviously it must be considered and discussed on the further hearing of theappeal, if it becomes necessary and relevant. I will be now for the lowerAppellate Court to which this case must go in accordance with the judgment ofMr. Justice Chatterjea, to determine not as suppositions but as actual factsall that is relevant to this case on the materials upon the record and havingdetermined those facts to apply the appropriate law to them in the light of theremarks which have been made.

4. In this view of the case we must dismiss the Appeal withcosts. There will be the same order in Appeal No. 28.

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Faizar Rahman vs.Maimuna Khatun (17.06.1913 - CALHC)