Authored By : Henry Reynell Holled Coxe, William Teunon

Henry Reynell Holled Coxe, J.

1. This appeal arises out of an application to set aside anexecution sale. It has been refused and the Defendant appeals. In my opinionthe order of the learned Subordinate Judge refusing the application is rightand should be maintained. The property was sold on the nth September 1907, andthe application was presented on the 5th July 1909. To succeed therefore it isincumbent on the applicant to prove fraud. It is of no avail to her to prove amaterial irregularity, not amounting to fraud, unless she can show that her rightto make the application was fraudulently concealed from her.

2. The learned Vakil for the Appellant has criticized theevidence for the opposite party at considerable length. I am far from acceptingthat criticism but I do not think it necessary to follow him in detail in thediscussion of that evidence, because the burden of proof is on the applicant,and the evidence of the applicant, when considered with the admitted facts ofthe case, seems to me wholly insufficient to justify any suspicion of thedecree-holders honesty, or to shift the burden of proving his honesty uponhim. The fraud pleaded is three-fold, (1) suppression of the sale proclamation,(2) under-statement of value in the sale proclamation, (3) omission to state inthe sale proclamation the area and profits of the land. Now as to thepublication of the sale proclamation the applicant has examined 5 witnessesincluding herself. Of these, three only including herself deny the publication.The other two do not live in the village, but in other villages a mile off.They say that they do not know if the proclamation was published or not, whichof course may be perfectly true without in any way justifying the inferencethat the proclamation was not made. Of the three witnesses, who swear that noproclamation was made, none have any pretence to be regarded as independent.Two are the applicant herself and her Karpardaz, who could hardly be expectedto say anything but what they have said. The third is a co-sharer who has beendetected in two deliberate untruths. I do not think it just on evidence of thisnature to hold that the decree-holder is bound to prove the regularity of theproceedings.

3. But when the undisputed facts of the case are consideredthe supposition that the sale was clandestine seems to me to become whollyuntenable. The original suit was against 23 persons. The decree is not printedbut it appears from the Plaintiffs sale certificate that 7 of these 23 wererecorded as judgment-debtors, 10 as Defendants and the others as pro formaDefendants. When the property came up for sale an order was passed for anadjournment of four days after hearing the judgment-debtors pleader. Itappears from the written statement of the opposite party in this case that theparty who applied for adjournment was not a judgment-debtor but one of theDefendants. The sale took three days as the Court was not satisfied with theprice realised. Bids were offered by Pitambar and Akhoy, both Defendants in theoriginal suit and kinsmen of the Petitioner. These circumstances show that thesale was conducted with publicity, that the people interested in the propertyknew about it, and to my mind are inconsistent with the supposition that it wasconcealed. No doubt, the Petitioner makes a vague and general charge that thejudgment-debtors colluded with the decree-holder. Such a charge is easily madebut she has made no serious attempt to substantiate it. All that there is inits support is that some of the judgment-debtors have taken settlement of theirformer lands from the decree-holder purchaser. Such an arrangement between thedecree-holder and the judgment-debtor after the sale seems to me onlyreasonable and not to justify the inference of collusion. There is evidencethat such a settlement was offered to the Plaintiff herself. On the other hand,it is proved that several of the Defendants in the original suit, includingsome of the judgment-debtors and including Pitambar and Akhoy, took the cropsof the land after the sale and were sued for damages by the decree-holder. Thisdoes not look much like collusion, even though the suit ended in a compromise.There were also criminal proceedings between Pitambar and the decree-holderover a small portion of the purchased land.

4. In my opinion the allegation of collusion has not beenestablished and it seems clear to me that some of the judgment-debtors and ofthe other Defendants to the original case, who were their kinsmen, were oninimical terms with the decree-holder after the sale. That being so, I do not believethat if the sale proceedings had been fraudulently suppressed they would haveacquiesced in it and contented themselves with taking settlements, some timelater, of subordinate interests in the land. Yet all the male judgment-debtorsdid so acquiesce and the objections of the other female judgment-debtors havecome to nothing, and it is doubtful if they have been seriously prosecuted atall. The Petitioners share is only one-eighth, and if those interested in theother seven-eighths have either not contested the sale, or withdrawn from thecontest, the fact raises a strong probability that the sale was notclandestine. It was advertised in the local newspapers. The learned Vakil forthe Appellant argues that it is not proved that the paper was read in thevillage. But the question is whether the sale was fraudulently concealed; andif the decree-holder really intended that it should be concealed it does netseem likely that he would take the risk of advertising it in a paper, which,whether it is read in the villages or not, might very likely be read atBankura, and seen by law agents and other persons interested in the village whomight attend the Courts.

5. Finally an inference of concealment has been founded onthe paucity of bidders. But it is not a matter of surprise that few peopleshould be willing to bid for a property in which seven judgment-debtors, ofwhom three were women, were interested. In the circumstances there was adistinct probability that the sale would be attacked and the purchaser involvedin litigation. There were five bidders excluding the decree-holders gomastha,who offered the second out of 28 bids for Satsagra and including two of theDefendants in the original suit and Shyama Sundaree, the mother and said to bethe benamdar of a third. And 1 should be surprised to learn that that was anunusually small number at a mofussil execution sale. It is not shown that anyof four besides the decree-holder was not an independent bidder.

6. It appears to me that all the undisputed circumstances ofthe case are wholly against the allegation that the sale was concealed, whilethe positive evidence that it was concealed is worthless. In thesecircumstances although the decree-holder has given plenty of evidence of thepublication of the sale proclamation, I do not think it necessary to discussthat evidence, and would hold that the Petitioner has failed to prove the firstground of fraud set up by her.

7. The second ground is that the value of the property wasunder-stated in the sale proclamation. At the outset I may say that no case hasgone the length of holding that an under-statement of value by itself issufficient to justify an inference of fraud. If the other circumstances of thecase justify the inference that the understatement was deliberately made aspart of a scheme to obtain the property at a low price, the under-statement ofvalue taken with those circumstances may perhaps justify a finding of fraud.But I know of no authority to the effect that such a finding can be based onthe understatement of value. It would be very dangerous in my opinion to holdthat an under-statement of value alone justifies the inference that it wasdeliberately made, with the intention of securing the property at a low price,and that that inference justified a finding of fraud, so that a finding offraud could be based on an under-statement of value alone. If that were thelaw, few execution sales would be secure. But in the present case though thevalue has been under-estimated, I do not think that any dishonesty has beenestablished. Here too the Petitioners evidence seems to me quite worthless.She and her Karpardaz say generally that the property is worth Rs. 25,000. Butall accounts and collection papers are withheld. The interest of her third witnessin the property has recently been sold, though it may be remarked that hefalsely denies it. This would have been the most direct evidence of the marketvalue of the property. But this evidence also is not produced. The witnessesgive vague and discrepant statements of the area of the property but the onlywitness who correlates this area to the value makes statements which, ifbelieved, would show that the value is far more than even the Petitioner says.On the other hand, there is a road-cess statement which shows the property tobe worth less than Rs. 100 a year. No doubt it is of little evidentiary value;but if the property is really worth Rs. 25,000, the statement exceeds, I think,the usual limits of inaccuracy. Then there is the fact that the property wasmortgaged for less than Rs. 2,000. I do not believe that the owners would havegiven property worth Rs. 25,000 to secure an advance of Rs. 2,000. But whatimpresses me most is that the Defendants of the original suit who wereinterested in the property would not bid high for it. The property consists oftwo villages, Mohesdobra and Satsagra. They were valued by the decree-holder atRs. 2,099 and Rs. 3,401. On the first day of the bidding the sums of Rs. 2,350and Rs. 4,000 were offered. But Pitambar and Akhoy would bid nothing forMohesdobra and only Rs. 1,900 and Rs. 2,300 for Satsagra. The next day noadvance was made and on the 3rd day no bids were made by Pitambar and Akhoywhile Shyama Sundaree, the mother and said to be the benamdar of Girish ChandraKhan, bid Rs. 3,000 for Mohesdobra and Rs. 5,600 for Satsagra. These figurescertainly do not justify an inference that the decree-holder willfully andgrossly under-stated the value. The villages were ultimately purchased by thedecree-holder for Rs. 3,500 and Rs. 0,600 apparently about Rs. 100 in excess ofthe decretal amount.

8. The document on which the principal reliance is placedfor the Appellant is the decree in the suit for damages. That suit wascompromised on the terms that the receipt of Rs. 800 was acknowledged and theDefendants agreed to pay Rs. 859 more. But it seems to me that it would bequite unsafe to accept this a sure guide for valuing the property. The suit wasfor damages for taking the crops of the land and the damages must have beenassessed on the value of the crops actually taken. Now clearly this value mustfluctuate enormously from year to year. We know nothing of the character of theyear in which these crops were grown. Assuming that the crops were average crops,a most unsafe assumption, I do not think a purchaser in the open market, muchless an execution purchaser, would be willing to pay a price calculated on thevalue of the average crop. In such cases the possible losses are more vividlypresent to the mind than the possible profits. A tenant paying half the produceas rent would, I think, be very sorry to have his rent amounted to a fixedmoney rent calculated on the value of half the produce in an ordinary year; anda purchaser would probably be influenced by the same considerations. I do notthink therefore that the compromise decree is a safe guide to follow in fixingthe value. But even if it be followed, it does not follow that thedecree-holder was guilty of fraud in entering a lower value in the saleproclamation. Much of the land was jungle and its value must have been in greatmeasure a guess. He knew what the owners had been willing to mortgage it to himfor, and if he under-estimated the increase in value since, his honesty neednot be impugned. This estimate was doubtless too low, but corroborated as it isto a great extent by the first days bidding, I cannot regard it as fraudulent.

9. The third ground is, in my opinion, quite untenable. Thesale proclamation describes the property with sufficient precision and the factthat the area and profits are not given is certainly not, to my mind, anyindication of fraud.

10. Finally the question arises whether the application isbarred by limitation. Now so far as the application is grounded on the suppressionof the sale proclamation, I doubt whether any question of limitation can arise.Under sec 18 of the Act, when a person has by means of fraud been kept from theknowledge of his right to make an application limitation runs from the date ofhis knowledge. It may be open to doubt if this section applies to a case inwhich the fraud is antecedent to the accrual of the right and the decision inPuma Chandra Mandal v. Anukul Biswas I. L. R. 36 Cal 654 (1909). is rather infavour of the view that it does not so apply. But the case of RahimbhoyHabibhoy v. C. A. Turner I. L B. 17 Bom. 341 (1892). is against this view andfurther lays down that in such a case the burden of proof is on the personguilty of the fraud to show when the injured party became aware of it. Here, ifit be assumed that the sale was fraudulently suppressed, though the receiptsgiven by the Petitioners Karpardaz raise a strong suspicion in my mind thathis employer must have been informed of the sale long before her application,yet I cannot find that her knowledge has been definitely proved. So thatwhatever law of limitation applies the application is in time.

11. But sec. 18 can, in my opinion, only apply to such fraudas amounts to concealment, and is intended to keep from the injured party theknowledge of her wrong or of its remedy. And the case of Rahimbhoy v. Turner I.L B. 17 Bom. 341 (1892). cannot be intended to apply to frauds of any otherkind. So that, so far as the application is based on the allegedunder-statement of value, which could not possibly affect in any way theknowledge of the Petitioner, sec. 18 would not, in my opinion, have anyapplication and the question whether the matter comes under the Limitation Actof 1908 arises. In the view that I take of the case, namely, that theunder-statement was not fraudulent the question does not arise, but it has beendiscussed at length and I think that I should notice it. The argument of thelearned pleader for the Appellant is based on sec. 6 of the General ClausesAct, 1897, and is that the Petitioner has acquired a right to have the sale setaside which cannot be interfered with by the repeal of the Limitation Act,1877, by that of 1908. After giving the best consideration I can to thequestion, I incline to the view that this contention is not sound. No doubt thePetitioners right to have the sale set aside cannot be affected by theLimitation Act of 1908. But that is not the right which he obtained under therepealed Act of 1877. What he obtained under that Act was the privilege ofexercising that right for three years and I doubt if that privilege is such asis contemplated by sec. 6 of the General Clauses Act. Reliance is placed on thecases of Kaurabai v. Isri Singh 7 All. L. J. 420 (1910). and Fasti Karim v.Annada Mohun Appeal from Order No. 84 of 1910. Since reported 15 C. W. N. 845(1911). The first case is undoubtedly in the Appellants favour. The secondseems to me somewhat different. In that case the learned Judges were dealing,not with a supposed privilege to have a certain time for making an application,but with one to be entirely exempt from the operation of the law of limitationduring minority. On the other hand, the case of Arayil Kali Atnma v.Pelappakkara Manakal 5 Ind. Cas. 420 (1910). and Thakamani Dasi v. MohendraNath 10 C. L. J. 463 (1909). are against the Appellant. I do not think it isnecessary to quote cases prior to the General Clauses Act, 1897. The balance ofauthority seems to me against the Appellant but as I have said it is notnecessary for me, in the view I take of the case, to come to a decision on thepoint.

12. I would dismiss the appeal but as my learned brotherentertains a doubt about the honesty of the sale, no order for costs will bepassed.

William Teunon, J.

13. In this case the aggregate value of the properties to besold was stated in the sale proclamation as Rs. 140 and the properties wereeventually purchased by the decree-holder for the sum of Rs. 10,160.

14. From this and the evidence afforded by the compromisedecree it is clear that in the sale proclamation the value was muchunder-stated. It then appears that at the sale a servant of the decree-holdersand another person who is the gnomish of the decree-holders cousin figuredapparently as independent bidders. This latter circumstance and theunderstatement of value taken together to my mind afford matter of very gravesuspicion but as my learned brother after a full consideration and discussionof the evidence agrees with the first Court in holding that fraud has not beenmade out, I am constrained though with great hesitation to agree in theconclusion at which he has arrived.

15. In this view I do not think that I need discuss thequestion of limitation. For the reasons given I agree in dismissing the appeal,but without costs.

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Raikishori Dasya vs.Mukunda Lal Dutt (04.07.1911 - CALHC)