Baswali Shrikh and Others vs Matangi Charan Ghose

Bachawat, J.—I regret I cannot interfere in this matter. The learned Munsif held that there has been gross under-valuation amounting to fraud. The holding consists of several acres containing paddy land, bastu, doba and tanks. It was valued at Rs. 501|- only. It was sold for Rs. 161-3. There is evidence on the record showing that the property is worth Rs. 6,000|-. The decree-holder is the landlord and had certainly means of knowledge of the actual value of the property. There is no doubt that he well knew the real price of the holding and in stating that the value of the property is Rs. 50|- he is guilty of deliberate fraud. The learned District Judge was in error in reversing this finding of fraud. He held that though gross under-valuation raises a presumption of fraud, that presumption had been rebutted by the positive evidence of service of the processes. In my opinion, the fraud to be inferred from the deliberate under-valuation is not to be necessarily rebutted by clear evidence of service. The cases reported in Marudanayagam Pillai v. Manickavasakam (1) (49 C.W.N. 292 P.C.: 72 I.A. 101) and in Manmatha v. Sachindra (2) (59 C.W.N. 1082), show that in spite of clear evidence of service of processes fraud may be inferred from gross under-valuation. Evidence of service is one of the considerations in determining whether fraud should be presumed from the under-valuation. Here the true value is 120 times the value shown in the sale proclamation The decree-holder being the landlord is also expected to be well acquainted with the price of the property. In such circumstances evidence of service does not rebut the presumption of fraud.

The fraud to be inferred from gross under-valuation is, however, not by itself fraudulent concealment within the meaning of section 18 of the Indian Limitation Act.: see Sarat v. Abdul (3) (49 C.W.N. 731); Abdul Janail v. Ambia (4) 43 C.W.N. 862; Narayan v. Mohanth Damodar (5) (16 C.W.N. 894) and Lord Bishop of Mylapore v. Mehar Ali (6) (41 C.W.N. 993).

The sale was held on the 21st November, 1952. The application for setting aside the sale was made on the 19th August, 1953. Unless the applicant obtains extension of time u/s 18 of the Indian Limitation Act, the application is clearly barred by the law of limitation.

In order to bring himself within section 18 of the Limitation Act the applicant must establish that there was fraud and that by means of such fraud he was kept from the knowledge of his right to make the application. There must be fraudulent concealment by the opposite party of facts giving rise to the right to apply.

Both courts have concurrently found that the concise statement was duly served upon all the petitioners. This finding is a finding of fact and is binding upon me. It is amply supported by the evidence on the record. The concise statement was sent to all the three petitioners by registered post. The acknowledgment receipt Ext. A is signed by Taphser. His signature is admitted. The postal cover containing the concise statement was duly addressed to Saheran Bibi. There is an endorsement on the cover showing that it was refused by Saheran Bibi. The postal registration receipt, of the despatch of the letter containing the concise statement to Burshed has been exhibited.

The acknowledgment receipt is not on the record. Barshed denied receipt. His testimony has been disbelieved by both courts.

Both Courts have also concurrently found that the sale proclamation was duly published on the holding on the 27th August, 1952. This is a finding of fact again and is binding upon me. The return of the process-server regarding publication of the sale proclamation is an exhibit. There is the presumption that official acts have been duly performed. The onus is upon the petitioner to show that there was no publication of the sale proclamation as alleged. The petitioners called several witnesses but they have been disbelieved by both courts. The circumstances regarding publication are certainly suspicious inasmuch as no local man witnessed the proclamation. The identifier and the drummer are landlord''s men and the witnesses who are said to have signed the sale proclamation appear to be the landlord''s creatures. There are circumstances giving rise to strong suspicion, Suspicion is, however, not proof. Sitting in revision I cannot interfere with the finding of fact by the lower courts.

The concise statement was also duly published in Biswadoot. In the courts below only the receipt showing the payment of fees for the publication was exhibited. In course of the hearing before me the learned lawyer for the opposite party has produced a copy of the Biswadoot in which the sale proclamation was published. I have received that paper in evidence. There was no objection to the production of the paper before me. Let the paper be kept on the record. It is, therefore, clear that the sale proclamation was also duly published in the Biswadoot.

On the materials before me there can be no doubt therefore, that publicity was given to the sale, and that the processes and the notices were duly served.

It appears that the registered covers containing the concise statement were actually served on the 24th October, 1952, whereas the sale was fixed to be held on the 22nd October, 1952. The sale was actually not held on the 22nd October, 1952. and, therefore, there does not appear to have been any breach of non-service of the notice on the 22nd October, 1952.

The learned District Judge observed that there has been a breach of rule 235 of Civil Rules and Orders. Under Order 21, rule 69(2) C.P.C. as amended by this Court a fresh proclamation under rule 67 has to be issued if the sale is adjourned for a period longer than one calendar month. This rule applies to sale under the Bengal Tenancy Act having regard to section 143(2)of the Bengal Tenancy Act. The date of sale originally fixed was the 22nd October, 1952. The sale was actually held on the 21st November, 1952. The sale was, therefore, not adjourned for a period longer than one calendar month. There was, therefore, no breach of rule 235 of the Civil Rules and Orders inasmuch as the sale was not adjourned for a period longer than one calendar month. There was no question of issue and publication of a fresh sale proclamation under Order 21, rule 69(2) C.P.C.

On the 21st of November, 1952, all the acknowledgment receipts had not been returned. In fact, even now the acknowledgment receipt in respect of the registered cover sent to Barshed has not been returned. In this state of affairs the decree-holder filed a petition stating that he is certain that all the judgment-debtors have been served with the notices and that the sale may be held, at his own risk. The learned Munsif allowed this prayer and directed that the sale be held at the risk of the decree-holder. From a perusal of the petition and the order dated the 21st November, 1952, and the surrounding circumstances it is clear that the apprehended risk was non-service of the concise statement by registered post to some of the parties. The evidence on the record, however, now show clearly that Barshed has been served. The risk apprehended on the 21st November, 1952, has, therefore, not materialised.

There is no question of proving the issue of a fresh sale proclamation by any artful device inasmuch as the sale was held within a month from the date originally fixed for the sale. The court was entitled to sell the property without the issue of fresh sale proclamation.

There is no concealment and no artful device, no contrivance preventing the judgment debtors from haying knowledge of the right to apply for the setting aside of the sale.

The judgment-debtors are, therefore, not entitled to extension of time u/s 18 of the Indian Limitation Act.

I regret the result. The decree-holder and his officers appear to be very clever and subtle men. Property worth Rs. 6,000|- has been sold for Rs. 161-3. It, however, often happens that the rights regarding valuable property are barred by limitation. This Court cannot interfere if the right of the applicant is barred by limitation.

I pass the following order:--

The Rule is discharged.

There will be no order as to costs in this Rule.