1. The subject-matter of the litigation, which hasculminated in this appeal, is a revenue paying estate bearing Touzi No. 2402 onthe revenue-roll of the Collector of the 24-Perganahs. The annual revenue ofthe estate, which comprises the villages Atpur and Panditnagar, is Rs. 398-9-0.Default was made by one of the joint proprietors in the payment of revenue dueon his share for the September instalment of 1914. At that time, a two-thirdsshare in the proprietary interest was vested in the plaintiffs and theremaining one-third in the father of the 4th defendant who, it is alleged, hadgranted a mortgage of that share to the plaintiffs. The entire estate wasexposed for sale by the Collector for the recovery of the arrears due (Rs.26-4-8) and was purchased by the 1st defendant on the 8th January 1915 for Rs.9,200. The father of the 4th defendant, Hemadakantha Ray, in whose share thedefault had taken place, died a day or two later. The plaintiffs appealed tothe Commissioner, but their appeal was dismissed on the 1st June 1915. On the18th August 1915 the plaintiffs instituted the present suit for declarationthat the sale was illegal and had been brought about by fraud on the part ofthe first three defendants; they prayed accordingly that the sale might becancelled or a conveyance executed in their favour by the ostensible purchaseron receipt of the purchase money. The 1st defendant was SatischandraChatterjee, the auction-purchaser on record. The 2nd defendant was AkshaykumarChatterjee, alleged by the plaintiffs to have been an old enemy of theirs withwhom they were at that time involved in litigation. The 3rd defendant wasSitanath Das, manager of Hemadakantha Ray, who was charged with the duty to payGovernment revenue on behalf of his master. The plaint asserts that these threedefendants entered into a conspiracy and decided to purchase the property atthe auction sale in the name of the 1st defendant. The plaint further chargesthat the default was wilful and deliberate, made with a view to bring about thesale to the injury of the plaintiffs. The suit was defended by the 1stdefendant alone, who filed his written statement on the 10th January 1916. Herepudiated all the material allegations contained in the plaint, denied thecharge of conspiracy, professed complete ignorance of the alleged deliberatedefault and fraud, and claimed to be the sole purchaser of the property,entirely on his own account, at the revenue sale. Upon these pleadings, theissues were framed on the 15th January 1916; the fifth issue raised thefundamental question in the suit: "Was the revenue sale brought about bycollusion and fraud on the part of the defendants and was it legal andvalid" The Subordinate Judge answered this question against theplaintiffs and dismissed the suit. On the present appeal, which has beenpreferred by the plaintiffs, the only defendant who has entered appearance isthe auction-purchaser Satischandra Chatterjee; the 2nd and 3rd defendants havebeen absent as they were throughout the proceedings in the Court below. Afterthe appeal had been heard for some days, it became clear that the evidence ofthe 2nd defendant was necessary for the determination of the matters incontroversy. Both the parties requested that he as well as his sons who had, accordingto the other evidence on the record, taken part in the transactions underinvestigation might be examined. The Court accordingly directed summonses toissue upon Akshaykumar Chatterjee and his three sons Taradas Chatterjee,Syamadas Chatterjee and Kalidas Chatterjee, and liberty was given to both sidesto cross-examine these persons. Akshay, Taradas and Syamadas were examined butno questions were put to Kalidas. We have now to determine the points indispute on the evidence taken by the Subordinate Judge and the Additionalevidence taken in this Court upon the joint request of both parties. As weshall presently see, there is direct conflict of oral testimony upon thefundamental question in issue; it is consequently necessary to ascertain thepoints which are either admitted or proved beyond the possibility ofcontroversy and then to test the allegations of the witnesses by referencethereto.

2. It is indisputable that default was deliberately made bythe 3rd defendant in the payment of Government revenue due on the share of hismaster Hemadakantha Ray, the predecessor-in-interest of the fourth defendant.As the Subordinate Judge finds, the object was to injure the plaintiffs and thestep was taken in collusion with the 2nd defendant, who, it was arranged, wouldpurchase the entire estate, free from incumbrances, at the revenue sale. Thereis some discrepancy in the evidence as to the exact proportion in which thespoil was to be divided; the details of the proposed distribution are, however,not very material for our present purpose, and we need only observe that thestory seems plausible that the 3rd defendant looked forward to a share forhimself and another share for his master. The complicity of the 2nd defendantin what the Subordinate Judge calls a "nefarious plan," is provedbeyond challenge. The oral evidence shows that he was approached long beforethe default was made, and there is unimpeachable contemporary documentaryevidence as to what followed. On the day before the sale Taradas, the son ofthe 2nd defendant Akshay, sent the following telegram to his father who at thetime was at Puri:

Kumars Satis, Kshiroda, Hemada are joint proprietors ofTouzi No. 2402, Mahal Atpur, 24-Perganahs, on Ganges near Kidderpur. Hemada didnot pay revenue and will cause the sixteen annas Mahal to be sold to morrow.Hemada represents total income as Rs. 1,200 and requests us to buy the same inauction within ten thousand rupees and sell half to him. Going out to ascertainfacts. Wire permission.

3. This telegram was sent at 12-45 P.M. and reached Puri at1-30 p.m. We do not know the exact time when it reached the addressee, but at3-30 p.m. Akshay despatched the following reply:

May bid ten or twelve thousand if the income is as yourepresent.

4. This message reached Calcutta at 4-40 p.m. and would indue course be delivered to Taradas the same afternoon. What followed is amatter of controversy. The plaintiffs allege that the 3rd defendant Sitanathand Syamdas, another son of Akshay, visited the 1st defendant Satis (who it isasserted is distantly related to Akshay), apprised him of the impending saleand made arrangements for purchase in his name at the auction. The evidence onthe side of the plaintiffs mentions another conference on the next morning.These conferences are, as might be anticipated, denied by Satis, and we shallpresently return to the question. The fact remains that at the sale which washeld by the Collector on that date (the 8th January 1915) bids were offered bytwo persons only, namely, by the 1st defendnat, Satis Chandra Chatterjee whowas present, and by Akshay Kumar Chatterjee, the bids on whose behalf wereoffered by his son Syamadas. The property was knocked down to Satis ChandraChatterjee for Rs. 9,200.

5. Some weeks later, when it became known that the estatehad been sold for arrears of revenue, endeavours were made by the proprietorsof adjoining estates, namely, Maharaja Sir Prodyot Kumar Tagore and RajaKisorilal Goswami to purchase the property from the auction purchaser on paymentof a substantial profit to him. That such negotiations were made we feel nodoubt whatever, and we shall at this stage examine the evidence as to whattranspired at the time. Maharaja Tagore has been examined on commission anddefinitely asserts that he attempted to purchase the property from the auctionpurchaser Satis Chandra Chatterjee, to whom he sent message to this effectthrough his officer Rajendra Nath Banerjee. The Maharaja is clear that SatisChandra Chatterjee came to see him in this connection and said that he wasunable to state anything without consulting Akshay, and his other partners. Thewild suggestion was made in cross-examination that the Maharaja might have beenimposed upon by false personation, but there is no indication that theplaintiffs were in any way connected with the intended purchase by theMaharaja. On the other band, the description which the Maharaja gives of Satisas a stoutish man who "stood rather uncomfortably" fits with thepersonal appearance of Satis, who had to be examined on commission on accountof his malady (bydrocele). We see no reason to doubt the accuracy of thetestimony of the Maharaja, He is supported by Rajendra Nath Banerjee, whoappears to be a perfectly truthful witness. He adds that when he pressed Satis,the latter said that he would have to consult with one or two persons who hadalso interest in the property purchased, and when pressed much took him to thehouse of another person (some Chatterjee) on that very day. Rajendra waited inthe carriage for sometime while Satis went inside the house; Satis returnedwith the news that Chatterjee was unwilling to part with the property. Thisevidence, if believed, unquestionably strengthens the case for the plaintiffsin a considerable measure. The probability of the truth of these allegations isenhanced by the evidence of the negotiations for a sale to Raja KisorilalGoswami. His chief superintendent Asutosh Bhattacharyya has been examined onbehalf of the plaintiffs. He testifies that attempts were made on behalf of hismaster to purchase the property from Satis Chandra Chatterjee. At first he senthis Muktear Tarapada Datta, but as the negotiations did not progesssatisfactorily, he himself went to Satis in the middle of May. Satis statedthat he would have to consult Akshay Chatterjee, whereupon the witness went toAkshay on three or four occasions. At first Akshay said that he would give hisopinion after the termination of the proceedings before the Commissioner forcancellation of the sale: later, Akshay said that he could sell the propertyfor Rs. 50,000. The witness was prepared to offer Rs. 25,000 only. Asutoshapproached Akshay once or twice later on, but as the present suit had beeninstituted, he was asked to wait till its disposal. We have thus the combinedtestimony of Maharaja Tagore, his officer Rajendra Nath Banerjee, and AsutoshBhattacharyya, the chief superintendent of Raja Kisorilai Goswami, that shortlyafter the sale, Satis Chandra Chatterjee was approached with a request to sellthe property, that Satis Chandra stated that he could not act alone and had toobtain the consent of Akshay Kumar Chatterjee, and that the latter whenapproached demanded a price which the intending purchaser was not prepared topay. No intelligible theory has ever been suggested why men of the status whichthese witnesses occupy should conspire to invent a falsehood of thisdescription. On the other hand, their story seems exceedingly probable. Thereis not much room for doubt that the property had been sold at a price very muchlower than its real value. Jute mills had been established in the neighbouringlocalities and demand for the land was insistent; both Maharaja Tagore and RajaGoswami were willing to pay down Rs. 25,000 to Rs. 30,000 for property which afew weeks earlier had been sold free of all encumbances for Rs. 9,200 only. Itis equally significant that in this Court the defendant promptly rejected anoffer by the plaintiffs to pay double the purchase-money. In thesecircumstances, it is very likely that adjoining land-owners like Tagore andGoswami should negotiate for a purchase of the property and that thenegotiations should have taken the shape described by these witnesses. On theother hand, what is the position taken up by Satis and Akshay They completelyrepudiate the alleged negotiations and interviews and suggest that the story isabsolutely mythical. We are not prepared to accept their bare denial in view ofcircumstances presently to be narrated.

6. It is indisputable that Akshay was anxious to purchasethe property and was in league with the 3rd defendant. His son Syamadas waspresent at the sale under the instructions of his brother Taradas and offeredbids on behalf of his father. It is said that this was a real contest and thatby some mistake Syamadas got the impression that he had offered a higher bidthan his rival Satis and consequently he stopped at Rs. 9,100, although hisfather was prepared to offer as much as Rs. 12,000. It is said, on the otherhand, that this apparent contest was in substance fictitious, that Satis reallyhad not sufficient money at his disposal to enable him to purchase the propertyand that the purchase was made in the name of Satis under a prearranged schemefor the benefit of Akshay, Satis and the 3rd defendant Sitanath. For thesolution of the question in controversy, it is necessary to examine theposition and conduct of Satis.

7. Satish Chandra Chatterjee is described as a habitualspeculator who frequented the Collectorate and used to bid at almost all therevenue sales. His father left him a considerable sum of money and landedproperty. He managed to relieve himself of both cash and land, and, at the timewhen these proceedings took place, was heavily involved in debt. He was furtheraddicted to drinking and irregular habits and is spoken of by the SubordinateJudge as rather a dangerous character. It is clear from the evidence that, onthe date of the revenue sale, he had no money in band. His story is that on hisway to the Collectorate, he borrowed a sum of Rs. 1,000 from his cousin TarakNath Banerjee. There is some discrepancy in the evidence as to the form whichthe loan actually took; the promissory note recites that the sum was paid tohim by his aunt in six currency notes, one for Rs. 500, the other five for Rs.100 each; on the other hand, the Chalan with which the money was deposited inthe Collectorate mentions a currency note for Rs. 1,000, an entry which ispenned through. The explanation offered by Satis for this entry is not quitesatisfactory, but it may be assumed for the present that he took from his auntthe currency note for Rs. 1,000 when he went to the Collectorate. The Chalanwas undoubtedly drawn up at first for Rs. 1,000 and was subsequently changedinto one for Rs. 2,300. Satis, who was examined first on commission, did notmake an attempt to explain these discrepancies which are no doubt calculated toexcite some suspicion. But his witnesses who were examined later, after theoriginal Chalan had been produced, developed the story that while the bids werein progress he realised that the money he had brought was insufficient to coverthe amount of the preliminary deposit of one-fourth of the purchase-money, sohe went with the permission of the Collector to fetch more money. He returnedwith Rs. 1,500 which he borrowed from his aunt. No promissory note, however, isproduced for this amount, though one is said to have been executed. Theexistence of two entries in the Chalan, namely, an entry of Rs. 1,000 re-placedby an entry of Rs. 2,300, has not, in our opinion, been satisfactorilyexplained, and the story narrated by the witnesses as to the second loan of Rs.1,500 is not convincing. On the other hand, the plaintiffs have made the veryplausible suggestion that there was some secret arrangement between Satis andAkshay as to the proportion in which the purchase money was to be contributedand that although the details of this scheme have not been successfullyunravelled, the alterations in the Chalan point to that conclusion. We may hererefer to an incident which is said to have happened at the close of the sale.It is said that there was a dispute between Syamadas and Satis as to whose bidwas the highest. Syamadas maintained that no bid had been offered higher thanhis, but the Collector decided against his contention. That the incident didtake place need not be questioned, and the estimate we formed of Syamadas whenhe was examined in this Court fits in with the theory that he may probably havebeen under an erroneous impression as to whose bid was the higher; but even ifthis be assumed, it does not necessarily militate against the view thatwhatever appearances might have been preserved, there was no real competitionat the sale. In this connection we must not overlook the statement made incross-examination by Asutosh Bose, one of the Collectorate Poddars, that theimpression left on his mind was that the three men (Sitanath, Satis andSyamadas) formed the same party and were conversing with one another at thetime of bidding. But the difficulties which surround this part of the case are,if not actually enhanced, by no means diminished when we come to examine thequestion of the payment of the balance of the purchase-money. Satis had clearlyno money at his disposal, though the balance, Rs. 6,900, had to be depositedwithin the date peremptorily prescribed by the Statute. The story here is thatSatis again raised the money by a loan, this time from the Adhikaris who wererelated to him by marriage. This transaction is hedged round by suspiciouscircumstances: Satis executed a deed of agreement to sail his ancestral gardento the Adhikaris: the agreement was not registered and the garden itself wasunder acquisition by the Calcutta Improvement Trust; in other words, the agreementwas to convey property which Satis was in reality incompetent to transfer. Theresult was that the property was not sold to his relations and they are allegedto have been re-paid out of the compensation awarded by the Trust. If all thesecircumstances are calculated to throw doubt on the genuineness of thesuccessive transactions, that doubt is certainly not removed when Satissolemnly tells us that neither before nor after his alleged purchase, has hemade any enquiry as to the estate, the lands comprised therein, the quantitiesof the rent paying and the rent free lands, and the names of holders of landsof the latter class. The impression left on our mind, upon a careful scrutinyof the circumstances of the case as disclosed in the evidence, is that Satis isnot the only parson interested in the purchase. In our opinion, there is goodground for the theory, advanced by the plaintiffs almost immediately after thesale in their petition of appeal to the Commissioner, that Akshay KumarChatterjee has a substantial interest in the property, which was brought tosale in concert with him by the 3rd defendant and which he was manifestlyanxious to capture. The story told by Priya Nath and Panchanan as to theinterviews with Satis on the day previous to the sale and on the morning ofthat day cannot be summarily rejected as mythical. There was weighty reason whySitanath should enlist the co-operation of a man in the position of Satis. Theimpending sale was to be effectuated by deliberate fraud. If Akshay purchasedthe property in his own name, the fraud would be easy to unravel; hiswell-known enmity with the plaintiffs would forthwith furnish a clue to thewhole scheme. To make the situation safe, an apparent stranger had to besecured; Satis was specially suitable for the purpose, as he was a frequenterat these sales, although the number of occasions when he successfully offeredbids is not confirmed by independent evidence and has probably beenexaggerated. No doubt, Satis and Akshay have resolutely denied that they haveever known each other previously, but little reliance can be placed on theirtesimony. Akshay and his son Taradas, who were both examined before us,produced a very unfavourable impression on our minds. The denial of allknowledge of this litigation by Akshay was an obvious pretence and there can beno question that at least one of the notices from the Court, namely, thatconcerned with the injunction proceedings, was personally served upon him. Theattitude of Taradas in the witness-box did not, we regret to say, inspiregreater confidence, and he felt very uncomfortable when faced with the telegramwhich he had admittedly sent to his father on the 7th January 1915.

8. We have minutely scrutinised the evidence and consideredall the circumstances of the case. We have not also lost sight of the wholesomerule that a Court of Appeal should be slow to differ from the primary Court ona question of estimate of oral testimony. See Lalljee Mahomed v. DadabhaiJivanji Guzdar 84 Ind. Cas. 807 : 43 C. 833 : 23 C.L.J. 190 where the cases onthe point are reviewed. Here, however, two important witnesses never appearedbefore the trial Judge and were examined on commission (Maharaja Tagore and thedefendant Satis Chandra Chatterjee), while three other witnesses were for thefirst time examined in our presence at the request of both the parties. See theobservations of Lord Collins in Imdad Ahmad v. Pateshri Partab Narain Singh 6Ind. Cas. 881 : 14 C.W.N. 842 : 12 Bom. L.R. 419 : 7 M.L.T. 414 (P.C.) : 32 A.241 : (1910) M.W.N. 118 : 87 I.A. 60. But we find ourselves wholly unable toaccept the view taken by the Subordinate Judge. There if, in our opinion, noreliable evidence in support of the theory adopted by him that the 2nd and 3rddefendants have in this litigation helped the plaintiffs against the 1stdefendant. On the other hand it is plain that the first three defendants arejointly interested in the purchase at the revenue sale, although the evidencedoes not enable us to determine the exact measure of the advantage reaped byeach of them. Our conclusions may be summarised as follows:

(i) That default was deliberately made in the payment ofrevenue proportionate to the one third share of Hemada by Sitanath acting inconcert with Akshay.

(ii) That such default was made for a fraudulent purpose,namely, to deprive the plaintiffs of their interest in the property.

(iii) That Satis was taken into confidence and was apprisedof this scheme; the arrangement made was that his name should be used at thesale and the purchase made for the benefit of Akshay, Satis and Sitanath.

(iv) That though the exact extent of the advantage intendedto accrue to each of the persons concerned in this fraudulent scheme cannot bedetermined, it is highly probable that Sitanath intended that the propertyshould not be entirely lost to his master.

(v) That Satis has not paid the whole of the purchase-moneyand is not the only person interested in the property.

(vi) That after the completion of the sale, negotiationstook place between Satis on the one hand and neighbouring landlords like Tagoreand Goswami on the other, but the transfer could not be accomplished withoutthe consent of Akshay who demanded a higher price than what the intendingpurchasers were prepared to offer.

9. The question next arise, what is the relief to which theplaintiffs are entitled on these findings. But before we discuss the point, wemust refer briefly to an objection urged by the defendant. It has beencontended that the plantiffs who allege fraud can succeed only on proof of thefraud as specified in the plaint and that no variation between pleading andproof can be allowed. Our attention has been drawn to the circumstances thatwhile in the plaint it is asserted that the 3rd defendant committed the fraud,it is stated by some of the witnesses (Priyanath and Panchanan) that Hemadahimself was also a party to the fraud. On a comparison of the allegations inthe plaint with the stories as narrated by the witnesses, it transpires,however, that there is no variation upon one fundamental point, namely, thatthe fraud was effectuated by Sitanath; it is not very material whether Sitanathintended to benefit or injure his master and whether he acted as he did withthe knowledge and concurrence of Hemada. Whatever divergence there may be uponthis latter point, the fact remains that, as narrated by Priyanath, as early asJune or July 1914 Sitanath with Priyanath approached Akshay and it was arrangedthat the property should be brought to sale and purchased in the name ofAkshay. It cannot thus be seriously maintained that there has been aninfringement of the rule formulated by Lord Westbury in Eshenchunder Singh v.Shamachurn Bhutto 11 M.I.A. 7 : 6 W.R.P.C. 57 : 2 Ind. Jur. (N.S.) 7 : 2 Sar.P.C.J. 209 : 20 E.R. 3 and by Sir Barnes Peacock in Mylapore v. Yeo Kay 14 I.A.168 (P.C.) : 14 C. 801 : 5 Sar P.C.J. 50 that the determination in a causeshould be founded upon a case either to be found in the pleadings or involvedin or consistent with the case thereby made; nor can it be suggested that therehas been any violation of the elementary rule of procedure laid down by SirBarnes Peacock in Abdool Hoosein V. Charles Agnew Turner 14 I.A. 111 : 11 B.620 (P.C.) : 5 Sar. P.C.J. 25 that a charge of fraud must be substantiallyproved as laid, so that when one kind of fraud is charged, another kind offraud cannot, upon failure of proof, be substituted for it. We must furtherbear in mind that every variance between pleading and proof is not fatal: theCourt must carefully consider whether, in the words of the Judicial Committeein Radha Mohun v. Jadoomonee Dossee 23 W.R. 369 : 3 Sar. P.C.J. 482 theobjection is one of form or of substance. The rule that the allegations and theproof must correspond is intended to serve a double purpose, namely, first, toapprise the defendant distinctly and specifically of the case he is called uponto answer, so that he may properly make his defence and may not be taken bysurprise, and, secondly, to preserve an accurate record of the cause of actionas a protection against a second proceeding founded upon the same allegations.Tested from these points of view, the objection urged by the defendant provesto be groundless.

10. The question now requires consideration, can thepurchaser, in view of the fraud whereby the sale has been brought about andwherein he has participated successfully, defend his title. We are of opinionthat the answer must be in the negative. No doubt, the sale now impeached wasbrought about by deliberate default on the part of the agent of one of theco-sharers who was charged with the duty to deposit regularly the Governmentdues proportionate to his share. This circumstance does not, in our judgment,render inapplicable the principle enunciated by the Judicial Committee in thecase of Deonandan Prasad v. Janki Singh 39 Ind. Cas. 346 : 25 C.L.J. 259 : 15A.L.J. 154 : 32 M.L.J. 206 : 21 C.W.N. 473 : 1 P.L.W. 294 : (1917) M.W.N. 254 :21 M.L.T. 240 : 5 L.W. 526 : 19 Bom. L.R. 410 : 44 C. 573 : 44 I.A. 30 (P.C.) wheretheir Lordships formulated the valuable doctrine that due regard must be had tothe relative position of co-sharers in respect of the payment of revenue and tothe need of demanding from each such measure of candid dealing and good faithas will ensure that a co-sharer is not tempted to make a deliberate defaultwith a view to ousting his co-sharers and appropriating to himself their commonproperty. This overruled the contrary opinion expressed in Doorga Singh v, SheoPershad Singh 16 C. 194 and affirmed the principle recognised in a series oflater decisions Faizur Rahaman v. Naimuna Khatun 20 Ind. Cas. 510 [LQ/CalHC/1913/349] : 18 C.L.J.111 : 17 C.W.N. 1233; Ram Prosad Singh v. Pawan Singh 21 Ind. Cas. 354 [LQ/CalHC/1907/106] : 18C.L.J. 97; Janki Singh v. Debi Nandan Prasad 7 Ind. Cas. 772 [LQ/CalHC/1910/438] : 15 C.W.N. 776;Harendra Lal Roy v. Purna Chandra Chatterjee 14 Ind. Cas. 368 [LQ/CalHC/1910/224] : 15 C.L.J. 132.This view coincides with that a dooted in the Courts of the United Statesregarding the mutual relation of joint tenants and the acquisition by one ofthem of an interest in joint property by purchase at a public sale for recoveryof State dues deliberately withheld (Black well on Tax Titles, Section 571,Black on Tax Titles, Section 282, Freeman on Co-tenancy, Section 158). In thecase before us, the position of the purchaser is open to successful attack fromanother quarter. The sale here is collusive in the sense that the purchaser waspre arranged. The parties decided to utilize the stringent provisions of therevenue laws (framed for the speedy realisation of Government dues) for theaccomplishment of their private fraudulent object. They put the machinery ofthe State in operation to cause injury to the plaintiffs and selected inadvance the purchaser who was to hold the property for the benefit of himself andof his participators in the fraud. In such circum stances, as the JudicialCommittee observed in Nawab Sidhee Nuzur Ally Khan v. Rajah Ooioodhyaram Khan10 M.I.A. 540 : 5 W.B.P.C. 83 : 1 Suth. P.C.J. 635 : 2 Sar. P.C.J. 198 : 19E.R. 1076 the Court will strip off all disguises from a case of fraud and lockat the transaction as it really is, because "fraud is an extrinsiccollateral act which vitiates the most solemn proceedings of Courts of Justice,and, in the words of Lord Coke, avoids all judicial acts, ecclesiastical ortemporal." In cases of this character, the Court holds that the sale hasno higher effect than a private alienation, and the purchaser who has takenwith notice of or is implicated in the fraud is compelled to re-convey the propertyto the rightful owners. This is plainly a rule of honesty and fair dealing; noparty to a fraudulent transaction can be allowed to derive any benefit from it,and the Court is always reluctant to condone the fraud and to permit theparticipants therein to retain the advantage. Numerous instances of theapplication of this doctrine are to be found in our reports Chunder NathChowdhry v. Tirthanund Thakoor 3 C. 504 : 2 C.L.R. 147; Sreenath Ghose v.Huronath Dutt Chowdhury 18 W.B. 240 : 9 B.L.R. 220; Kishore Chunder Sein v.Kally Kinkur Paul Chowdhry 20 W.R. 333; Harendra Lal Roy v. Salimullah 7 Ind.Cas. 21 : 12 C.L.J. 336; Uma Charan Mandal v. Midnapore Zemindary Co. 26 Ind.Cas. 182 : 20 C.L.J. 11 : 49 C.W. 270. Consequently, in the case before us, the1st defendant must be directed to execute a reconveyance in favour of theplaintiffs. This direction, however, can take effect only in respect of thetwo-thirds share owned by the plaintiffs, and cannot be legitimately extendedto the one-third share owned by the 4th defendant. The representative of Hemadadid not join as a plaintiff in this suit; she did not get herself transferredto the category of plaintiffs: nor did she, when the suit was dismissed by theSubordinate Judge, join in this appeal. The 1st defendant will consequentlyhold that one-third share, subject, however, to the claim, if any, of theplaintiffs under the alleged mortgage of the 24th July 1908. That mortgage,assuming it represents a real transaction, cannot be deemed to have beenextinguished by the fraudulent sale, but the mortgage decree of the 4thDecember 1915 cannot be treated as conclusive against the 1st defendant, as hewas not made a party to the mortgage suit, which was instituted on the 18thAugust 1915, after the revenue sale certificate had been granted to him on the10th July 1915.

11. The result is that this appeal is allowed and the decreeof the Subordinate Judge set aside. The suit is decreed in respect of atwo-thirds share of the estate sold on the 8th January 1915. The 1st defendantis directed to execute a conveyance with regard to this share in favour of theplaintiffs on payment of a proportionate share of the purchase-money, i.e., Rs.6,133-5-4. The plaintiffs, we understand, have not yet withdrawn from theCollectorate their share of the surplus sale proceeds. The entire sum indeposit in the Collectorate will accordingly be transferred to the Court of theSubordinate Judge to be dealt with by him under this judgment. The plaintiffsundertake to bring into Court any additional sum which, taken together withtheir share of the surplus sale-proceeds so brought in, may be required to makeup the sum of Rs. 6,133-5-4. The time within which the additional sum is to bedeposited will be fixed by the Subordinate Judge.

12. The decree will further declare that the 1st defendantwill hold the remaining one-third share in the estate, subject to the dues, ifany, of the plaintiffs under the mortgage of 24th July 1908. The plaintiffs areentitled to recover their costs both here and in the Court below from the firstthree defendants. The amount of Court-fees and hearing fees will be calculatedonly on two-thirds of the value of the suit and appeal.

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Kumar Satish Kantha Roy and Ors. vs. Satis Chandra Chatterjee and Ors. (08.07.1919 - CALHC)