Banerjee, J.

1. This appeal arises out of a suit by the plaintiffs,respondents, to recover possession with mesne profits of a nine-anna share of acertain property, Mehal Chuck Shah Mohamedpore, after setting aside a sale,held on the 6th of June 1883, of a larger share of the Mehal, that is, athirteen-anna share, made up of the nine-anna share in suit, and of another4-anna share belonging to the defendants Nos. 3 to 23, for arrears ofGovernment revenue due in respect of the said thirteen-annas.

2. The grounds upon which the plaintiffs seek to have thatsale set aside are- first, irregularity in the sale; and, secondly, fraud onthe part of the defendants. The irregularities set out in the plaint need notbe considered here, as the judgment of the lower Court, as to the existence andeffect of those irregularities, was given against the plaintiffs, and nocross-objections have been urged before us against that judgment. We would onlyadd that, upon the face of the judgment, there does not seem to be any groundfor holding that the sale was bad by reason of any irregularity.

3. The fraud alleged in the plaint is said to have consistedin this, that the property was sold for a very small amount of arrear, lessthan one rupee; that the plaintiffs were not aware of the existence of thearrear; that the defendants, the plaintiffs co-sharers, intentionally leftthis small amount unpaid, with the object of purchasing this property; and thatthey purchased the property themselves for a price which is less than itsproper value. One of the plaintiffs was examined as a witness in the case. Hewas asked to state in what the fraud consisted, and he stated that it consistedin the facts alleged in the plaint of which the substance has been given above.

4. It appears that, in the evidence adduced on behalf of theplaintiffs, an additional element of fraud was introduced, namely that theplaintiffs co-sharers, when bidding at the auction, dissuaded intendingpurchasers from buying. I should add here that the plaintiffs further allegedin their plaint that their co-sharers bought the property benami in the name ofthe defendant No. 1.

5. The defence was that there was no fraud; that the arrearthat was due was due really from the plaintiffs; that the purchase by thedefendant No. 1 was not a benami purchase; and that the property did not sellfor anything less than its fair price.

6. The Court below, as I have already said, decided againstthe plaintiffs upon the question of irregularity, but it gave the plaintiffs adecree to the effect that the defendant Durga Sing and his co-sharers in thepurchase do reconvey to the plaintiffs the nine-annas share of the propertyupon receiving from them a proportionate amount of the purchase-money withinterest at the rate of 4 per cent, from the date of payment thereof; and itgave the plaintiffs that decree upon the ground that the defendants, thepurchasers, were guilty of fraud in causing the sale of the property in the manneralleged in the plaint, and in dissuading intending purchasers from buying.

7. Four of the defendants have appealed against thatdecree-the defendants Nos. 1 to 4-and the main grounds urged on their behalfare-first, that the Court below was wrong in giving the plaintiffs the decreefor equitable relief that it has given when the plaintiffs did not ask for anysuch relief but only sought to recover possession after setting aside the sale,and when the issues raised in the case did not embody the questions necessaryto be decided before the plaintiffs could be held entitled to that relief;secondly, that upon the facts alleged in the plaint, or found by the Courtbelow, no fraud was made out such as should entitle the plaintiffs to relief;and, thirdly, that upon the evidence the Court below was wrong in findingcertain facts in the plaintiffs favour which were said to constitute thealleged fraud.

8. With reference to the first contention, we do not thinkthe appellants are entitled to succeed upon it. It might be possible that, byreason of the frame of the suit and of the issues raised in the Court below,the appellants were precluded from raising various points in their defence andadducing evidence to substantiate those points. But, as all the necessaryparties are before the Court, and the plaint contains a statement of all thenecessary facts, we do not think that such a bare possibility of prejudicewould entitle the appellants to succeed in this appeal, unless it was shown, orsuggested, how they might have been actually prejudiced. As nothing has beenshown, or suggested, to make this out, we think this ground must fail.

9. But we think the appellants are entitled to succeed uponthe second and third grounds. We shall consider those grounds separately. Thefacts alleged in the plaint together with the additional fact noticed above,which was developed in the evidence, come, shortly stated, to this that thedefendants, who were co-sharers with the plaintiffs in the property in arrear,intentionally withheld payment of a certain portion of the Government revenuedue in respect thereof, and bought the property themselves, after havingdissuaded others from bidding. And the question is,--Do these facts constituteany fraud, considered singly, or collectively The Court below has answeredthis question in the affirmative, and given the plaintiffs a decree, relyingupon the case of Bhoobun Chunder Sen v. Ram Soonder Surma Mozoomdar I.L.R. Cal.300. But that case is clearly distinguishable from the present. There thedefendant undertook to apply to the Collector on behalf of all the co-sharersto save the mehal from the impending sale, and having sent his co-sharers away,with the assurance that he would do everything to protect their interestsneglected to make any application, and bought the estate himself. That was aclear case of fraud. Here it is not even suggested that the defendants in anyway prevented the plaintiffs from becoming aware of the existence of thearrear, or from paying it off, as they could if they chose. Every co-sharer ina zamindari may, if he chooses, bring it to sale by not paying the revenue; butevery other co-sharer can save it from sale by paying the arrear, and canrecover the amount from the defaulter. The fact of the defendants beingco-sharers in the property, did not clothe them with any fiduciary character,which disqualified them from buying this property, unless it was for thebenefit of all the co-sharers. The Revenue Sale Law, Act XI of 1859, containssufficient indication to show that a defaulting co-partner is at liberty to buythe estate in arrear.-See Section 53 of the Act.

10. The authority of decided cases is also in support ofthis view. We may refer to the case of Ram Lall Mookerjee v. JodunathChatterjee 9 C.L.R. 337, which is a somewhat similar case, as bearing upon thisquestion. The principle applicable to the case of one of several joint tenantsobtaining renewal of a lease is inapplicable to the case of a co-sharer inJamindari buying it at a revenue sale for this simple reason. All the jointtenants having an interest in the old lease, which forms the basis of the rightto obtain a renewal, the benefit of a renewal obtained by any one of them isheld to belong to them all-See Clegg v. Fishwick l Mac. & G. 298. But theright of a co-sharer to buy an estate at a revenue sale is not based upon anyright or interest that is common to him and his co-sharers.

11. If the fact then of the defendants having beenco-sharers with the plaintiffs did not clothe them with any fiduciarycharacter, and if the fact of their having committed default in the way and forthe purpose alleged in the plaint did not, in the absence of misrepresentationor concealment on their part, constitute any fraud, let us see whether theadditional fact of their having deterred others from bidding for the propertyamounted to fraud. Upon this point the only authority that can be cited infavour of the respondents is a passage in Sugdens Vendors and Purchasers, atpage 93 of the 13th edition, which is to this effect-" Fraud will, ofcourse, be a sufficient ground for re-opening the biddings. Therefore, if theparties agree not to bid against each other, the Court could re-open thebiddings."

12. Now this passage has been considered in the case ofCareivs Estate 26 Beav. 187, and it has been held that there is no realauthority in support of it, and that an agreement between two bidders not tobid against one another would not be a sufficient ground for annulling thesale. And in a later edition of the work the text has been altered and a noteadded in accordance with the above ruling- (Sugden on Vendors and Purchasers,14th edition, p. 117).

13. The same view is taken in the case of Gallon v. Emuss 1Col. 243, and the law on the point is thus stated in the last edition of DartsTreatise on the Law of Vendors and Purchasers (p. 121):

An agreement between two persons not to bid against eachother at an auction is legal, and such an agreement has been held to be validwhere the sale has been held by order of Court." And in this Court, in acase very similar to the present, it has been held that a combination amongcertain purchasers not to bid against one another does not constitute any fraudor impropriety such as would have the effect of vitiating the sale-See the caseof Gobind Chundra Gangopadhya v. Sherajunnissa, Bibi 13 C.L.R. 1.

14. There is, therefore, really no authority in support ofthe position that dissuading of bidders was necessarily an act of fraud. Now,if neither the fact of the defendants being co-sharers and buying the estateafter making an intentional default in the payment, of revenue, nor the fact oftheir having entered into combination with other bidders, separately,constituted any fraud; we do not see how, taken together, they could be said toconstitute fraud. Even upon the facts found, therefore, we are unable toconfirm the decision of the Court below. Of course, if the defendants had theconduct of the sale, and had dissuaded intending purchasers to bid, or if therehad been misrepresentation made by these defendants as to the nature of thetitle, or as to the value of the property, and if, in consequence of suchmisrepresentation, persons had been deterred from bidding, that would haveconstituted fraud, and would have entitled the plaintiffs to a decree. But nosuch thing is proved, or even alleged here.

15. Whilst we think that, even upon the facts found, theappellants are entitled to succeed, at the same time we deem it right to addthat we cannot agree with the Court below in the findings of fact arrived at byit, namely, in the first place, that the default was wholly intentional andmade by the defendants with the object of buying the property themselves; andin the second place that there was really any deterring of intending bidders.And first as to whether or not the default was intentional from the beginning,this is how the facts stand. The amount of the Government revenue in arrearwas, as I have stated above, very small, less than one rupee. The defendant DipNarain, on the 4th of June, that is, two days before the sale, made anapplication to the Collector for permission to pay in the amount, alleging thatit was through no fault of his that an arrear had fallen due. Thereupon theorder passed by the Collector was to this effect-that the arrears of rent,road-cess, postal contribution, and embankment tax be taken,-and the amount dueunder all these heads came up to a little over Rs. 20 (see Exhibits vi, vii,pp. 38, 39 of the Paper-book). Now it appears from the evidence-and it isadmitted by one of the plaintiffs, Ram Gholam Singh, who was examined as awitness in the case-that the different co-sharers had not come to a settlementas to the road-cess, and it was for that reason that the road-cess arrears werenot paid. That being so, it is clear to our minds that, originally, there wasno intention on the part of the defendants of allowing the mehal to get intoarrears, with the object of buying it themselves. What the defendants reallywanted was to obtain a settlement of their disputes as regards the payment ofthis road-cess. It was only when the defendant Dip Narain found from the orderof the Collector, that the payment of the arrears of Government revenue alonewould not be accepted, and that he had to pay not only those arrears but alsothe road-cess and the other items, as to which there was a dispute, if hewanted to save the mehal; that he made default in paying the amount, which theCollector ordered him to pay; and so the mehal was put up for sale. It seemsthat the plaintiffs default, in paying the road-cess arrears, may well beregarded as having ultimately led to the sale.

16. Then as to the other fact, namely, that the defendantsdeterred intending purchasers from bidding. In the first place it is worthy ofnote, as I have already pointed out at the very outset, that this element offraud was not alluded to in the plaint, nor even was it mentioned, when one ofthe plaintiffs was examined as a witness. It was developed in the evidence,and, from the nature of that evidence, we are not at all convinced that thefact deposed toby the plaintiffs witnesses was true. The Court below hasbelieved those witnesses, considering them to be respectable witnesses. Weshould not have felt justified in dissenting from the conclusion of factarrived at by the Court below upon the evidence of those witnesses, if we didnot find that evidence so extremely vague, as to the facts deposed to, and sovery unsatisfactory, as to the circumstances which led to the presence of thewitnesses at the time and place where they say they were, that we could notrightly act upon it. All that they say is, that certain of the co-sharers ofthe plaintiffs prohibited them and other persons from bidding as they weregoing to buy the property themselves. In the first place, it does not seem tobe very likely that persons who went with the bona fide intention of bidding,and of bidding up to a certain amount, would so soon, and so readily, upon amere request, be dissuaded from bidding and from making the bargain that theyintended to make. We fail to discover, in the evidence, any sufficient motivethat could have induced intending bidders to be dissuaded from bidding. And, inthe second place, the account that these witnesses give of the reasons fortheir presence in the Collectorate at the particular point of time does notseem to us to be at all satisfactory.

17. Upon the whole, therefore, as well upon the question oflaw as upon the questions of fact considered above, we feel constrained todissent from the judgment of the Court below; and we may add here that theevidence adduced to show that the plaintiffs have suffered injury by reason oftheir property having been sold for a price below its proper value is, in ouropinion, neither satisfactory nor precise. Upon all these grounds, therefore,we think that the decree of the Court below must be set aside, and theplaintiffs suit dismissed with costs in both Courts.

.

Sheo Pershad Singh and Ors.vs. Doorga Singh and Ors.(08.01.1889 - CALHC)