Ram Rijhan Sahi and Others vs Mt. Razia Begam and Another

Shearer, J.—These appeals arise out of five suits instituted in the Court of the first Subordinate Judge at Muzaffarpur. The plaintiffs in the suits were co-proprietors in a revenue paying estate known as mahal Baruraj Panapur Nurjahan bearing tauzi No. 1356 in the Muzafferpur collectorate. The estate is an extensive one, comprising no fewer than 89 mauzas and belonging to a very large number of co-proprietors many of whom have taken the precaution of opening separate accounts. The land revenue payable for the mahal is Rs. 17,894-1-5; but, in consequence of the opening of separate accounts, the land revenue payable for the residuary estate is Rs. 3633-3-2. On 12th January 1935, which was one of the latest dates fixed by the Board of Revenue for the payment of arrears of revenue u/s 3, Bengal Land-Revenue Sales Act (11 of 1859), the residuary estate was in arrears to the extent of rupees 460-2-8.

A notification was accordingly issued that it would be sold for arrears of revenue on 26th March 1935, and on that date it was sold and was purchased by one Balchand Marwari, who was impleaded in the suits as defendant 1, for a sum of Rs. 5400. On 5th April 1935, Balchand Marwari executed a sale deed conveying the property which he had purchased to nine persons who were impleaded in the suits as defendants 2 to 10. Two of these persons, namely, defendant 8, Jahurimul, and defendant 10, Sitaram Marwari, were persons who had not previously had any interest in the estate. One of them, defendant 7, Syed Khurshaid Hussain, was a co-proprietor in the estate, but had opened a separate account for his share and had no interest in the residuary estate itself. The others were all persons who were co-owners of the plaintiffs in the property which was sold. The plaintiffs contended that the sale was either without jurisdiction or was, for one reason or another, irregular and ought to be annulled. Alternatively, they asserted that the sale had been brought about by the fraud of some of the defendants who were their co-owners and that they were, in any case, entitled to have their interest in the estate reconveyed to them. The learned Subordinate Judge was of opinion that the sale was a valid sale and could not be annulled, but gave the plaintiffs a decree, entitling them to have their interest in the property reconveyed to them by defendants 2 to 9. Immediately after notice of the appeals was issued, cross-objections were put in by the plaintiffs, claiming mesne profits. Subsequently, these cross-objections were permitted to be amended so as to include a prayer that the sale should be annulled. It will be convenient to deal, in the first place, with the latter point taken in the cross-objections.

It is not denied that the notification required by Section 6, Bengal Land Revenue Sales. Act, was issued and duly published It is, however, contended that the notification was defective. In the first place, it is pointed out that the entry in column 6, which is headed "Name of the proprietor of the property which will be sold" is "Ram Rijhan Prasad Sahi and others". As I have already said, the property belonged to a very large number of persons, and it is suggested that the names of these various persons should have appeared in the notification. Section 6 of the Act does not, however, require this and clearly it is quite unnecessary to set out in the notification the names of all the proprietors as persons intending to bid at a revenue sale do not at all require such information in order to know what the property advertised for sale is.

Then, it is said that the interest in one of the 89 mauzas included in the list appended to the notification, namely, Baruraj Sumer, was not an interest of 2 annas 2 gandas odd but an interest of 1 anna 18 gandas odd. Apparently, the interest to be sold in each of the other 88 mauzas was correctly specified. Even, therefore, assuming that in the case of this particular mauza a mistake was in fact made, it cannot obviously be said to [be a mistake which could, in any way, have contributed to the property being sold for an inadequate price. Lastly, Mr. L.K. Jha for the respondents, has drawn our attention to a statement contained in the notification immediately above the list of mauzas appended to it. This has been translated at page 147 of the paper-book as follows:

Besides the share given below other shares will be excluded. If besides the milkiat property given in the ijmal property fallen in arrear, other milkiat property be found, the same will also be considered as sold.

This may not perhaps be as intelligible as it might. When, however, the actual entry in the notification which is in the vernacular is looked into, the meaning is, to my mind, perfectly clear. In the first place, there is a plain intimation that what is to be sold is the ijmal or residuary estate. That was very necessary and indeed was required by Section 13 of the Act as, when a residuary estate or a share in an estate for which a separate account has been opened is sold the purchaser takes it subject to encumbrances. Secondly, there was an intimation that if the property to be sold had not been exhaustively described, that is, if some mauza had been omitted, or the interest shown against any particular mauza was in fact greater than that shown in the notification, the purchaser would obtain a valid title to that mauza or interest. As I have already said, this notification was duly published. It is clear that it was most carefully drawn up and at the worst contained no more than one trivial error or mistake. So, far from there having been any danger of intending, purchasers being misled by it, they were, in my opinion, given a very clear and. accurate description of the property which was to be sold. Mr. L.K. Jha in the course of his argument on this point referred to the decision in Ravaneshwar Prasad Singh v. Baijnath Ram Goenka AIR 1915 P.C. 24. That also was a case in which a residuary estate was sold, the estate being an extensive one comprising a large number of mauzas and belonging to numerous persons many of whom had opened separate accounts. Instead of the various mauzas being set out in the notification, and the interest to be sold in each of them being accurately specified as was done in this case, the notification merely stated that what was to be sold was the ijmali share and that so many separate accounts, the numbers thereof being given, had been opened. Such a notification was obviously a misleading one and did not and could not convey any idea at all to intending purchasers of what was to be sold.

Mr. L.K. Jha for the respondents then contended that a notification should have been issued u/s 5 of the Act. This admittedly was not done. It appears that a portion of the property which was sold was mortgaged to one Rai Bahadur Krishnadeva Narain Mahtha and that the latter instituted a suit upon his mortgage and obtained a decree for sale. A sale proclamation was issued on 19th November 1934, and was published in the Bihar and Orissa Gazette on 28th November 1934. This sale proclamation stated that the mortgaged property would be sold on 3rd December 1934. A portion of the property was then actually sold and a fresh sale proclamation was issued, stating that the rest of it would be sold on 10th January 1935. Most of the property was apparently sold then. Eventually, however, on 8th April 1935, the sales, it appears, were set aside. Sale proclamations are published in the same manner as writs of attachment so that when the property to be sold in execution of a mortgage decree is an estate or a portion of an estate paying land revenue, a copy of the sale proclamation is sent to the Collector. The Board of Revenue in its miscellaneous proceeding of 11th May 1895, appears to have instructed Collectors to issue a notification u/s 5 on the receipt of such sale proclamations relating to estates of which the land revenue is in arrears. It may be very desirable that a notification u/s 5 should issue in such cases, but Section 5 does not itself require that one should. As has been pointed out in Krishna Chandra Bhowmik Vs. Pabna Dhana Bhandar Co. Ltd. and Others, the words in Clause (3) of Section 5, namely, "arrears of estates under attachment by order of any judicial authority" must be strictly construed, and do not and cannot apply in cases in which estates have not been attached but have been advertised to be sold in execution of mortgage decrees. The ground, however, on which Mr. L.K. Jha for the respondents, mainly contended that a notification u/s 5 ought to have issued was that the arrears for which the property was to be sold were not, or at least were not wholly, arrears of land revenue. Reliance is placed on the words used in Clause (i) of Section 5, namely, "arrears due on account of takavi pulbandi or other demands not being land revenue, but recoverable by the same process as arrears of land revenue."

In 1849 the proprietors of this mahal entered into an engagement foe the payment of salt saer. The relevant portion of this agreement has been translated as follows:

Therefore we do of our freewill and accord by accepting Rs. 2350-5-0 in company''s coin as jama of salt saer mahal in respect of salt petre and khari (alkalim) for ever with effect from the beginning of 1256 Kasli, declare that we shall pay with the land revenue the said salt saer jama, instalment after instalment, year after year, without any objection and that in case of non-payment with the land revenue in time the Collector will be competent to put to sale the said mauzas for the recovery of the arrear of salt saer jama also. Therefore we have put into writing these few words by way of a perpetual ekrarnama (deed of agreement) for payment of the salt saer jama to the Government.

It appears that at some time after this engagement was entered into, the sum of Rs. 2350-5-0 duo on account of the salt saer was added to the sum of Rs. 15,243-12-5 payable on account of the land revenue as fixed at the permanent settlement. In consequence the total revenue now shown as payable in respect of the mahal in the revenue roll is Rs. 17,594-1-5. This is shown as being payable in instalments in each of the months from Asin to Asarh. Our attention has been invited to Appendix G at pp. 227-228 of the Manual of the Revenue and the Patni Sale Laws. This appears to show that in the tauzi ledgers and the other revenue registers of the Collector of Darbhanga the payments to be made on account of land revenue and nimaksair are shown separately. Apparently, in the Muzaffarpur collectorate they are not, presumably because some former Collector of Muzaffarpur was advised or assumed that nimaksair had become, and might be treated as, land revenue. In Moghul times there were two sources of revenue, namely, the mal or revenue from land and the sairat or revenue from miscellaneous sources, the principal of which were internal custom duties. Some time before the permanent settlement the sairat were abolished, the zamindars who had collected them as they had collected the mal, or land revenue, being granted compensation. It was for this reason that, when the jama or land revenue was fixed at the permanent settlement, the sairat were not taken into consideration.

The zamindars however succeeded in appropriating to themselves certain sairat such as jalkar, falkar and bankar. This they were apparently allowed to do as they soon came to be regarded as standing in the same position as landlords in England. The nimaksair consists of licence fees paid to the zamindar by persons who collect earth in his estate and prepare saltpetre from it. If the zamindars were permitted to appropriate the jalkar and falkar, and not to appropriate the nimaksair, the reason would seem to have been that in the late 18th and early 19th centuries saltpetre was a valuable product and was for a time a Government monopoly as was salt. This, and the desire to augment the revenues, which had been one reason why the sairat was not taken into consideration in fixing the jamaor land revenue at the permanent settlement, may have been why the nimaksair mahal was leased out separately to the zamindars and why eventually they were asked to enter into engagements to pay in respect of it a sum fixed in perpetuity along with the land revenue. The question that arises is whether nimaksair is one of the "other demands not being land revenue, but recoverable by the same process as arrears of land revenue" or whether it is part and parcel of the "land revenue" as these words are used in Section 5 of the Act. The expression "other demands" must be construed on the ejusdem generis principle. Now, the words immediately preceding them are "arrears due on account of takavi, pulbundi." Takavi was a loan made by Government to relieve distress, while pulbundi was a ''loan made to proprietors of estates in order to enable them to improve or maintain irrigation facilities. Payments made in order to liquidate such loans were not payments which had to be made at fixed regular inter, vals along with the land revenue, and still less payments which had to be made, as payments on account of land revenue had to be made, in perpetuity. The word "revenue" as it occurs in Act 11 of 1859 was later defined in Act 7 of 1868. It was there said:

The word "revenue" includes every sum annually-payable to Government by the proprietor of any estate or tenure in respect thereof, and every sum payable to Government in respect of takavi, or of any money advanced by Government to proprietors of land for making or repairing embankments, re-servoires or, water-courses, or other improvements, on the land held by them.

Nimaksair is quite clearly a sum "annually payable to Government by the proprietor of an estate in respect thereof." Mr. L.K. Jha for the respondents concedes this, but contends that it is not land revenue, and points out that the expression used in Clause (4) of Section 5 of Act 11 of 1859 is "land revenue" and not "revenue". The expression "land revenue" occurs only in the title of the Act and in Clause (&) of Section 5. Elsewhere the expression used is "arrears of revenue". The words "land revenue" would seem to have been used advisedly in Clause (4) of 8.5 as meaning revenue payable in respect of an estate. Having regard to the definition of "revenue" in the subsequent Act (7 of 1868), I can see no reason to construe the expression "land revenue" in Clause (4) of Section 5 in the manner in which Mr. L.K. Jha for the respondents would have us construe it, namely, as the jama fixed at the time of the permanent settlement.

The scope of the expression "land revenue" in Act 11 of 1859 and Act 7 of 1868 was considered by the Calcutta High Court and later by the Judicial Committee in Bageshwari Prasad Singh v. Mahomed Gouhar Ali Khan (04) 31 Cal. 256. The question that arose there was whether malikana was land revenue within the definition in these Acts, and it was decided that it was. Now, malikana was something apart from, and in addition to, the jama or land revenue proper fixed at the permanent settlement. This decision fortifies me in my conclusion that the expression "land revenue" ought not to and cannot be construed in the very restricted way contended for by Mr. L.K. Jha. For these reasons, I am not satisfied that on this other ground either a notification u/s 5 of Act 11 of 1859 ought to have been issued. In any event, assuming that such a notification was required and was not issued, it was incumbent on the plaintiffs to show, in the first place, that the omission to issue it was specifically taken as a ground in the petition of appeal to the Commissioner, and, in the second, that in a consequence of this omission substantial injury had been caused to them. Now, the plaintiffs in one of these suits did not prefer any appeal to the Commissioner at all. In the petitions of appeal which were preferred by the other four set of plaintiffs no complaint was made that a notification u/s 5 ought to have been issued as the arrears for which the estate was advertised to be sold were arrears due on account of nimaksair, and not on account of land revenue. It is true that the judgment of the Commissioner shows that the point was taken in argument before him, but it does not appear t that it was taken on behalf of the plaintiffs. Ten other sets of co-proprietors besides these plaintiffs had, it should be explained, preferred appeals to the Commissioner and these appeals and the appeals of the plaintiffs or certain of the plaintiffs were disposed of by the same judgment. In Gobind Lal Roy v. Ramjanam Misser (94) 21 Cal. 70 their Lordships of the Judicial Committee took the view that there had not been a sufficient compliance with the provisions contained in Section 33 of Act 11 of 1859 when the ground on which the sale was sought to be set aside had not been specifically taken in the petition of appeal to the Commissioner and had merely been advanced tentatively when the appeal came on for hearing.

The learned advocate for the respondents apparently realised this obstacle in the way of his clients, as in the latter part of his argument he contended that the sale was altogether void and was not merely liable to be annulled on the ground of irregularity and hardship. This contention was based on a construction sought to be put on Section 5 of Act 11 of 1859. The construction is a novel one and except for certain observations of Khwaja Mohamad Noor J. in Prithwi Chand Lal v. Kirtyanand Singh AIR 1932 Pat. 21 no authority was cited in support of it. The observations relied on were, moreover, largely in the nature of obiter dicta. It is said that u/s 5 the Collector is required to fix a date on or before which any arrears of revenue must be paid and that, when no notification is issued and, in consequence, no such date is fixed, the Collector has no jurisdiction to sell the estate. The words that occur in Section 5, namely, "specifying the latest date on which payment thereof shall be received," scarcely suggest that it was the intention of the Legislature to give the Collector a discretion in the matter. If it had been its intention that the Collector should himself fix a date on or before which payment of the arrears should be made, one would expect it to have used the word "fix" or some other more appropriate word than "specify." It may be observed that in Section 3 the Legislature did in fact use such expressions.

At the commencement of the Section there occur the words "shall determine upon what dates all arrears of revenue shall be paid up" and towards the end of it "the dates so fixed." Also in construing Section 5 the preamble to the Act ought not to be overlooked. This contains among other recitals the following:

Whereas it is just that a person having lien upon an estate, and paying the money necessary to protect it from sale for arrears of revenue, should be reasonably secured; and whereas it is expedient to afford landholders, particularly absentees, facilities in guarding against the accidental sale of their estates for arrears of revenues.

Clearly, the intention of the Legislature in enacting Section 5 was to ensure that persons who had attached estates in execution of decrees and so had a lien on them and in certain cases the owners of estates themselves should be warned that there were arrears of revenue to be paid and that in default of their being paid before a certain date the estates were liable to be sold. The notification by means of which this warning was to be conveyed was to specify the latest date on which payment of the arrears would be received. Such latest date to be inserted in the notification would appear to be one of the latest dates fixed by the Board of Revenue u/s 3 of the Act, the discretion of the Collector in selecting the particular date being fettered by the discretion that the notification should be published not less than 15 clear days preceding it. That the Section has been so understood and in practice acted upon by the revenue authorities themselves is shown by the form of the notification prescribed by the Board of Revenue which is to be found at p. 173 of the Manual of the Revenue Sale Laws and by the procedure laid down by the Board of Revenue for the guidance of Collectors in Part 3, Section 3 of the same Manual.

Apart from this, it is now well settled by a long current of decisions that when an estate is in arrears on one of the latest dates for payment fixed u/s 3 of the Act the Collector has jurisdiction to sell it and that the omission to issue a notification u/s 5 in any case in which such a notification is required does not render the sale void but is a mere irregularity which may in certain cases render it liable e to be annulled. This particular argument put forward by Mr. L.K. Jha, was not, in my opinion, well grounded and moreover proceeded on the assumption that a notification u/s 5 ought to have been issued which was not the case. There is, in my view, no merit in the supplementary ground permitted to be added to and taken in the cross-objection. I now proceed to consider the grounds on which the propriety of the decree passed by the learned Subordinate Judge, directing the defendants to reconvey to the plaintiffs their respective interest in the property sold, is assailed. Particulars of the fraud alleged by the plaintiffs were set out in paras. 10 and 11 of the plaint which were as follows:

(10) That so far as the plaintiff has been able to ascertain the sale in question was brought about by the fraud of the defendant second party in concert and collusion with the defendant first party and other defendants second party who are all creatures of the said defendants 2 to 5.

(11) That the said defendant 2 and his family who are proprietors and own share in farzi name of Ablakh Lal had always an eye on the remaining share in the mahal and with that object in view intentionally defaulted in payment of the Government revenue and thus got the estate put up for sale and in concert and collusion with the peon got the notices under Sections 6 and 7 fraudulently suppressed and himself purchased the property at the sale in farzi name of the defendant first party with whom they had previously arranged for reconveyance of the share in their own name as also the other defendants second party who are all their creatures with a view to give assemblance of reality to the sale in their favour and to conceal their own fraud.

Along with their written statements defendants 2 to 5 put in chalans showing that they had in fact paid their quota of the land revenue. They also then or later put in a copy of the notification which had been issued by the Collector under Sections 6 and 13 of Act 11 of 1859. As I have already said, this notification was duly published, and except perhaps for one trivial mistake, was correctly drawn up. Presumably, on seeing it and the land revenue chalans, the plaintiffs or their advisers realised that they could not possibly establish the kind of fraud which they had set out in their plaint. At the trial, therefore, evidence was led to show that a fraud of quite another kind had been perpetrated. One Muhammad Mujtaba, a pleader who was also the mukhtar-am of one of the plaintiffs and another man, Jang Bahadur Lal, went into the witness box and spoke to certain incidents which they said had occurred in the Court of the Collector immediately before or during the sale. Maulavi Muhammad Mujtaba said that on being told that the estate had been advertised for sale he went to the Court of the Collector where he found defendant 2, Babu Brij Nandan Prasad Sahi and certain other co-proprietors. According to him, he asked them to pay up their quotas of the land revenue, and gave them an undertaking that if they did so he would pay up the arrears due by his own employer. This Babu Brij Nandan Prasad Sahi declined to do and instead told him plainly that he intended to lot the sale take place and to purchase the estate himself. Maulavi Muhammad Mujtaba then went on to describe what happened when the estate was actually put up for sale and bids for it were made. He said that before the price had been run up to any extent, Babu Brij Nandan Prasad Sahi induced two of the three bidders, namely, Sitaram Marwari and Syed Khurshaid Hussain, to stop bidding with the result that the property was knocked to the third bidder, Balchand Marwari.

Finally, Maulavi Muhammad Mujtaba said that after the sale had taken place and before he left the Court of the Collector, Babu Brij Nandan Prasad Sahi told him that he would arrange for his employer to get from Balchand Marwari a reconveyance of her share in the estate. Jang Bahadur Lal gave a shorter and less circumstantial account of what had taken place and in one particular did not, by any means, support what Maulavi Muhammad Mujtaba had said. According to him, Maulavi Muhammad Mujtaba had asked him to put down the money necessary to avoid the sale. Jang Bahadur Lal is an employee of the Deoria Factoy to which apparently the interest of Ladley Begum in the estate had been leased out. It is thus possible that such a request was in fact made and was not acceded to. If, however, it was Maulavi Muhammad Mujtaba''s story of how Babu Brij Nandan Prasad Sahi obstinately and unreasonably declined to cooperate with him in preventing the sale becomes still more fantastic and incredible. Defendant 2, Babu Brij Nandan Prasad Sahi, is a gentleman of some position, being a member of the Bihar Legislature and the Chairman of the Local Board at Muzaffar-pur. He went into the witness-box and denied that he had been present at the sale or indeed had been at Muzaffarpur for two or three days prior to it. He also said that he was absorbed in politics and that this and other property belonging to his family was managed by his cousin, Babu Ram Rijhan Prasad Sahi, defendant 1.

The learned Subordinate Judge had no hesitation in relying on the evidence of Babu Brij Nandan Prasad Sahi, and expressed the opinion that the evidence given by Maulavi Muhammad Mujtaba was worthless "and stood self-condemned." I have no doubt whatever that the learned Subordinate Judge was correct and that there was no substratum even of truth in the account given by Maulavi Muhammad Mujtaba and Jang Bahadur Lal of what took place prior to and during the sale. Nevertheless although the plaintiffs, in the opinion of the learned Subordinate Judge, failed to establish either the fraud set out in the plaint or the fraud put forward in evidence at the trial, the learned Subordinate Judge took the view that fraud had in fact been practised. The Court below apparently felt itself driven to such a conclusion by a consideration of certain circumstances, one of which was that the property was sold for a great deal less than, in the opinion of the learned Subordinate Judge, it was worth.

The learned Subordinate Judge, relying on certain evidence which was adduced and need not be considered in detail here, was satisfied that, if the property had been free from encumbrances, it would have been worth one and a half lakh and that the encumbrances on it amounted to no more than Rs. 80,000. It is very difficult indeed to say what the market value of such a property is. Clearly, even a person in a position to pay off the encumbrances immediately would not be at all likely to give anything like as much as Rs. 70,000 for it. How much exactly such a person would have been prepared to give is not however very material. What is material is that the property was subject to very heavy, encumbrances and for that reason was not a property which many persons would be at all anxious to purchase. It has to be remembered that the sale notification was duly published and that persons, if there were any likely to purchase the property, presumably, knew that it was to be sold. If no one came forward to bid for the property except two professional bidders and another man who was already a co-proprietor in the estate, the conclusion to be drawn is, in my view, that the property was so heavily encumbered that no one was prepared to take the risk of buying it. The mere circumstance that at the sale the property fetched no more than Rs. 5400 does not, I think, at all warrant the con-elusion or even by itself raise a suspicion that the sale was brought about by fraud.

The other circumstance on which the learned Subordinate Judge relied was that the negotiations between defendant 1 and the other defendants which led to the former conveying the property to the latter were concluded within a space of two or three hours on the day succeeding the sale. Defendant 1, Babu Rijhan Prasad Sahi, attempted to make it appear that the sale came as a surprise to him when he returned from Sitamarhi on the morning of 27th March 1935. He said that he had then met, more or less by accident defendant 7, Syed Khurshaid Hussain, who had been one of the bidders at the sale, and wais told by him that the property had been purchased by defendant 1, Balchand Marwari. He went on to say that he had at once gone and consulted a lawyer who had advisee] him to approach Balchand Marwari and try to induce him to reconvey his interest in the property to him. As Balchand Marwari was not personally known to him, he went to Jahurimul, defendant 8, with whom he had previously done business, and got him to take and introduce him to Balchand Marwari. "When they arrived at the house of Balchand Marwari, they found the gomastha of Rai Bahadur Sheo Bux Lal, defendant 9, and an agent of Jugeshwar Chatterji, defendant 6 already there. Babu Rijan Prasad Sahi then went on to describe the conversations which took place, the agreement ultimately arrived at, and the steps he took to procure the necessary money.

The story told by Babu Rijhan Prasad Sahi was in some respects not very convincing, and the learned Subordinate Judge was perhaps justified in not believing it. It is, for instance, very difficult indeed to suppose that the sale came altogether as a surprise to Babu Rijhan Prasad Sahi. Syed Khurshid Hussain admitted that he had known for a week or more prior to the sale that the estate had been advertised for sale and as the notification was duly published it is probable I that Babu Rijan Prasad Sahi knew as much about it as did Syed Khurshaid Hussain. Certainly, there is reason to suspect that Babu Rijan Prasad Sahi may have been well aware that the property was likely to be sold on 26th March 1935, and even that in anticipation of this he had arranged with Balchand Marwari that the latter should bid for it and should subsequently reconvey his interest in the property to him. Even, however, if this is what actually happened, and it is not easy to feel at all certain that it did, there was no fraud or sharp practice on the part of the defendants such as would justify a Court in directing a reconveyance of the property. When an estate has been sold in consequence of a default on the part of some of the co-owners, there is no reason why a co-owner who has not himself been in default should not repurchase the property or his interest in it if he can. Such conduct, it is obvious, is not in any way fraudulent or indeed open to any criticism whatever on moral grounds. The co-owner in question merely takes steps to recover his own property which has been lost to him through the default of another. Does it make any difference if, knowing that a sale is bound to take place, he arranges with potential purchasers to reconvey his interest to him in the event of the property being knocked down to any of them or even sets up an agent to outbid them and buy the property on his own behalf? In my view, it does not. The co-owner, again in such a case, does no more than protect his own interests and ensure the recovery of property which would otherwise be lost to him through some one else''s default.

Moreover, in this particular case, as I have just said, it is not at all certain that Balchand Marwari was instructed by defendants 2 to 5 or any one else to buy the property for them. There is no direct evidence of this and it may well perhaps be that defendant 2, realising that the property was very heavily encumbered, took the risk that no one except professional bidders such as Balchand Marwari and Sitaram Marwari would bid for it, anticipating that he would have no difficulty in later inducing them to reconvey his own interest in it to him. It is notorious that professional bidders at revenue sales are as a rule disinclined to retain the estates they buy in for any length of time in order to dispose of them by private treaty at the highest possible price and are ready enough to reconvey them to the original proprietors or some of the original proprietors, if the latter are willing to compensate them handsomely for the expenditure they have incurred. The learned Subordinate Judge expressed the opinion not merely that there was a conspiracy but that Sitaram Marwari and Syed Khursheid Hussain as well as Balchand Marwari were parties to it. There is no evidence whatever of this. Eeliance is placed on the bid-sheet, but this merely shows that Sitaram Marwari stopped bidding when the price rose to Rs. 3300 and that Syed Khurshaid Hussain continued to bid against Balchand Marwari until the price r eached Rs. 5400 when he too stopped bidding and allowed the property to be knocked down to Balchand Marwari. The proper inference to be drawn is, in my view, no more than this, that Syed Khurshaid Hussain either did not consider the property to be worth as much as Rs. 5400 or, if he did, was not in possession of sufficient funds to pay more for it. The circumstance that Sitaram Marwari stopped bidding at comparatively early stage and the bidding was continued for some considerable time further by Syed Khurshaid Hussain and Balchand Marwari is, on the whole, inconsistent with there having been any arrangement between them.

The learned Subordinate Judge disbelieved the evidence of Maulavi Muhammad Mujtaba and Jang Bahadur Lal as to what took place in the sale room and, in view of this, it is the more difficult to understand how he came to the conclusion that the bidding at the sale was not free. In Gobindo Chandra Jha v. Shyam Lal Jha (05) 1 C.L.J. 85, it has been pointed out that an agreement between bidders at an auction not to bid against one another and later to divide the property between them is not void as against public policy and may be enforced. Moreover, even assuming that there was such an agreement in this ease, the sale would nevertheless in any event have taken place. The agreement, if there was one, may have resulted in the price being kept down but that by itself could not entitle the plaintiffs to a reconveyance or indeed to any relief. If persons allow their property to be sold at a revenue sale, they take the risk of its being sold for less than it is actually worth. In order to justify a sale being interfered with on the ground of fraud, it must be shown that the fraud in question took place not during the sale but prior to it, the sale having been directly brought about or engineered by means of it and that the perpetrators of the fraud were the co-owners of the plaintiffs or otherwise stood in a fiduciary relationship to them: Deonandan Singh v. Manbodh Singh (05) 32 Cal. 111.

In my judgment there is no reason whatever to suppose that this particular sale was in fact brought about by any kind of fraud on the part of any of the defendants. That being so, I would allow the appeals and dismiss the suits with costs in this Court and in the Court below. The cross-objections will also be dismissed.

Agarwala, J.

I agree.