Patna High Court
Harakali Bose vs Sm. Janaki Devi Choudharani And Ors. on 16 August, 1955
Equivalent citations: AIR1956PAT161, 1955(3)BLJR583, AIR 1956 PATNA 161
JUDGMENT Sinha, J.
1. Defendant 2 is the appellant before this Court. The plaintiff brought the suit for declaration that the auction sale in Certificate case No. 56/BH of 1939-40, held on 15-7-1940 in the Court of the Certificate Officer, Dhanbad, was vitiated by fraud and collusion on the part of the defendants, and, therefore, the sale was null and void and did not bind the plaintiff, and her rights in the property sold, the property in suit, were not affected by the said auction sale.
There were other consequential reliefs also asked for. Defendant 1 is the auction purchaser at the certificate sale, and defendant 2 is a purchaser of a part of the property auction-purchsed by defendant 1.
2. Sometime in 1301 B. S. by a registered deed, of lease, the proprietor of the Jharia Estate leased out the underground rights of mauza Balliary to four persons, namely, Durga Prasad Singh, Hardayal Singh, Rameshwar Chakravarty & Ramkalpa Chakravarty. Each of these four persons had equal shares, namely, four annas each.
Later, in 1307 B. S. Durga Prasad Singh, Hardayal Singh, Rameshwar Chakravarty and the two sons of Ramkalpa Chakravarty namely Nagendra-nath Chakravarty (defendant 3) and Kishori Mohan Chakravarty (defendant 4), then minors, through their guardian, Ramchandra Chakravarty, granted a permanent mokrrari lease to Chunilal Marwari and Srimati Matkuri Dasi in respect of 279 bighas of underground rights in the aforesaid mauza Balliary on a minimum royalty of Rs. 1.3957-per year, besides commission etc. There was a partition in the family of defendants 3 and 4, and, by partition, defendants 3 and 4 each got 17/62nd share in the four annas interest once belonging to Ramkalpa Chakravarty in the said mauza. By two registered sale deeds, dated 17-10-1932 and 25-8-1933, defendants 4 ana 3, respectively, sold share in the aforesaid 279 bighas of coal land to the plaintiff.
The sale deed of defendant 3 was for a sum of Rs. 1,900/- and the one by defendant 4 was for a consideration of Rs. 2,500/-. The plaintiff, therefore, got the entire interest of defendants 3 and 4 in the lease granted to Chuniial Marwari and Srimati Maturi Dasi. The plaintiff, from the dates of purchase, came in possession of the property sold to her and she had been realising royalty, commission etc., from the sub-lessees. Chunilal Marwari and Srimati Matkuri Dasi, who had started a private limited liability company known as "Chunilal Tikamchand Coal Company Limited".
To be more exact, the company had been started by the heirs of Chuniial Marwari and by Srimati Matkuri Dasi. The lessees from the proprietor of the Jharia Estate, including the plaintiff, were liable to pay royalty and cesses to the Jharia Mines Board of Health.
The said Jharia Mines Board of Health, which will hereafter be referred to as the certificate-holder, filed a certificate case No. 567BH of 1939-40 in the Court of the Certificate Officer, Dhanbad, for royalty and cesses for the year 1938-39 in respect of the Balliary mines against the plaintiff and defendants 3 to 5 and defendants 7 and 8 for a sum of Rs. 257- only.
The certificate-holder executed the certificate and put up the Balliary mines to auction, and, at the sale, defendant 1 purchased the whole of the Balliary mines on 15-7-1940, for a sum of Rs. 50/-only. It is to be noted that the Balliary mines consisted not only of the 279 bighas of coal land mentioned above, which were leased out to Chuniial Marwari and Srimati Matkuri Dasi, but it consisted of several other mines.
Defendant 1 got delivery of possession on 8-9-1942. On 1-10-1942, defendant 1 sold to defendants 7 and 8 the interest which originally belonged to them before the auction sale for a sum of Rs. 19-8-0. These defendants 7 and 8 were purchasers from father of defendants 3 and 4. Defendant 1 sold the interest in the auction sale belonging to the plaintiff to defendant 2 for Rs. 500/-.
Although there is no document showing the sale of the interest of defendants 5 and 9 to them toy defendant 1, who was the auction purchaser of the whole of the interest, defendants 5 and 6 dealt with the property, as will be considered later, as if there was no sale in the certificate case.
Defendant 2 instituted a suit No. 192 of 1943, against the sub-lessees namely, Chunilal Tikamchand Coal Company Limited, and also against the plaintiff for arrears of royalty in the Court of the Munsif at Dhanbad claiming a decree for Rs. 799/- as being the arrears of royalty and com-mission; the plaintiff was made party because, it was alleged, she had wrongly realised royalty from the sub-lessees for the period in suit.
The plaintiff, as alleged by her, got information for the first time about the certificate sale after receipt of the summons of this suit, and then she learnt of the sale and of defendant 1 being the auction-purchaser at the sale. She instituted inquiries in the certificate office and obtained copies of certain documents relating to the certificate sale. She alleges that, before the summons in suit No. 192 of 1943 by defendant 2, she had absolutely no information about the certificate case or the certificate sale.
It is said by the plaintiff that none of the notices required by law under the Public Demands Recovery Act was served upon her, and under the special circumstances of this case, she alleges that all the processes in the certificate case were dishonestly and fraudulently suppressed by or on behalf of defendants 3 to 8 in collusion with the process servers, and the plaintiff was kept deliberately in dark and she could not know about the certificate case as all the processes had been fraudulently suppressed with a purpose.
She says that this device of fraudulently suppressing the processes- in connection with the certificate and the certificate sale was adopted in order to deprive the plaintiff of her rights in the property. She further alleges that defendant 1, the auction purchaser, is a servant and employee of defendants 3 to 8 and his purchase is a purchase 'benami' for those defendants.
It is further alleged that defendant 2 also is a benamidar inasmuch as his purchase from defendant 1 is merely a sham, transaction and in fact, he is acting as benamidar of defendants 3 to 8. The plaintiff says that defendants 3 to 8 and the plaintiff were jointly and severally liable for the certificate dues, taut defendants 3 to 8 brought about the sale and did not pay the paltry sum of Rs. 25/-, for which the certificate case was instituted, deliberately and dishonestly with the sole motive of depriving the plaintiff of her valuable rights.
The value of the ' property is said to be Rs. 6,000/-, the annual income of the property being Rs. 199-4-0 as minimum royalty. It is said that no delivery of possession was ever given and that the plaintiff is still in peaceful possession of her share of the property by realising royalty and cesses from Ghunilal Tikamchand Coal Company Limited. On these grounds, the plaintiff wants the relief mentioned above.
The property in suit comprises of the right, title and interest in. 17/31st share in four annas' interest of 279 bighas of coal land worked by the said private limited company, the details of the property having been given in the schedule to the plaint.
3. Several written statements had been filed by all the defendants. Defendant 1 pleads that the nut is bad for defect of parties because the Chairman, Jharia Mines Board of Health, was a necessary party, that the suit is barred by limitation that he is not a benamidar of defendants 3 to 8 and that he is the real purchaser and purchased the property at auction sale for his own benefit and got delivery of possession in due course, acquired valid title and parted with major portion of his interest in favour of different persons.
He asserts that proper notices and other processes were duly served on the certificate-debtors and the allegations regarding fraud, collusion and non-service are incorrect. He denies that lie is the servant and employee of defendants 3 to 8 and says that he is a registered clerk of one Babu K. P. Singh Choudhary, pleader, Dhonbad, and, in this way he denies all the allegations of the plain-tiff regarding fraud, collusion and non-service.
Defendant 2 has filed his written statement on the same lines, and has further said that the suit is barred under Sections 45 and 46, Bihar find Orissa Public Demands Recovery Act (B and O Act 4 of 1914), that he is not a 'benamidar' for defendants 3 to 8. and that his purchase is real and genuine, and he purchased the property for valuable consideration.
Defendant 6 also made the allegations con-tained in the written statement of defendant 1. Only defendants 2, 5 and 6, however, contested the suit.
4. Several issues were struck, and the issue regarding non-joinder of parties, which was issue 2, was not pressed at the hearing.
The Court below has found that the notices and the other processes in the certificate case and in the execution proceedings for sale were not only not served upon the plaintiff but that they were fraudulently suppressed, that defendant 1 was a 'benamidar' for defendants 3 to 8 & purchased the property at auction in that capacity, that a very valuable property valued at aboub Rs. 6,000/- was sold for a grossly inadequate price of Rs. 50/- only, which was almost shocking to the conscience of the Court that defendant 2 is not a real purchaser from defendant 1 that his purchase is a sham transaction that these defendants 3 to 8 come from the common stock, though most of them are separate for the last many years, that the plaintiff alone was a stranger so far as this property in suit was concerned, that in spite of the auction sale of the whole interest, including the interest of defendants 5 and 6 defendants 5 and 6 dealt with the property to the knowledge of defendant 1 as if there had been no auction sale of their interest and that the sale in question was not: only brought about by the fraud and collusion of defendants 3 to 8 and defendant 1 but was in contravention of the statute. Upon these findings, the Court below decreed the suit in full.
5. Mr. Advocate-General, who argued the case on behalf of the appellant has contended:
1. that the allegations made by the plaintiff in the plaint were covered by the provisions of Section 29, Public Demands Recovery Act and no suit was maintainable:
2. that a suit like the present one was barred under Section 45 of the Act, because the suit was brought more than one year after the date on winch the possession of the property was delivered to the auction-purchaser (the delivery of possession to the auction-purchaser in this case was given, on 8-9-1942, and the present suit was brought en 29-8-1944);
3. that Section 46 of the Act is a bar to the present suit;
4. that the certificate-holder was a necessary party to the suit, and the suit was not maintainable in his absence;
5. that the order-sheet of the certificate case was evidence of the service of notice and other processes, and the Court below was wrong in holding that there was no service of notice;
6. that a purchase by a cosharer is not bad and the right to purchase is given to a cosharer expressly by Rule 48 framed under the Public Demands Recovery Act; and
7. that mere non-service of sale proclamation will not vitiate the sale.
6. Mr. S. C. Ghosh who followed the learned Advocate-General, also submitted that the finding of fraud is not substantiated by the evidence on record. I shall consider these several points in the order in which they are mentioned.
7. It has to be borne in mind that the present suit is based upon fraud and is not based upon mere non-service or mere material irregularity in the certificate proceedings or in publishing or conducting the sale. The whole basis for the suit, as given out in the plaint is that the certificate proceedings, including the sale, are bad because of fraud perpetrated on the plaintiff and upon the Certificate Officer by defendants 3 to 8.
Section 29. Public Demands Recovery Act, therefore, has no application. It contains a provision for an application to set aside sale of immovable property on the ground of non service of notice under Section 7 of the Act or material irregularity in the certificate proceedings or in publishing or conducting the sale.
Learned Advocate-General has suggested that the question of fraud also can be gone into under the provisions of Section 29, but there appears to be no warrant for this suggestion upon the language used in Section 29. Section 29, Public Demands Recovery Act is similar to the provisions contained in Order 21, Rule 90, Civil" P. C., with this difference that in Order 21, Rule 90, Civil P. C. an application can also be founded on fraud in publishing or conducting the sale. Section 29, therefore, in my opinion, has no application when the suit is founded upon fraud which attacks the proceedings from beginning to end.
8. Section 45, Public Demands Recovery Act envisages a suit to recover possession of or to set aside sale of immovable property where notice under Section 7 of the Act has not been served, and it further says that, because of mere non-service of notice under Section 7, the sale of immovable property in execution of a certificate shall noli be void. This suit is not based on mere non-service of notices and, therefore, that section also can have no application.
9. So far as Section 46, Public Demands Recovery Act is concerned, this section, as the learned Advocate-General reads it, may, suggest that, on the ground of fraud, a suit can be maintainable if there be a question arising between the certificate-holder and the certificate-debtor or their representatives relating to the making, execution, discharge or satisfaction of a certificate under the Act or relating to confirmation or setting aside, by an order under this Act, of a sale held in execution of such certificate.
He says that no suit is maintainable even on the ground of fraud if no question is raised between the certificate-holder and the certificate-debtor or their representatives, and no such question having been raised in the present suit, it is not maintainable. It is, however, to be borne in mind that even solemn proceedings of a Court of law are vitiated by fraud, and that a Civil Court has complete jurisdiction to impugn any such proceeding on the ground of fraud.
Section 9. Civil P. C. lays down that the Court shall have jurisdiction, subject to the provisions contained in the Code of Civil Procedure, to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Section 46, Public Demands Recovery Act is a general bar to the jurisdiction of Civil Courts in cases where a question arises between the certificate-holder and the certificate-debtor or their representatives, but it permits a suit to be brought in the Civil Court in respsct of questions, mentioned therein on the ground of fraud.
In my opinion, the present suit cannot be barred under, Section 46 inasmuch as the allegations of the plaintiff are that it was the fraud of defendants 3 to 8 and not the certificate-holder, which brought about the sale of her property. The question, therefore, is raised not between, the certificate-holder, on the one hand, and the certificate-debtor, on the other, or their representatives, but the question is raised between one certificate-debtor and the other certificate-debtors. In my judgment, therefore, the general jurisdiction of the Civil Court to entertain suits of civil nature in this case on the ground of fraud, is not barred.
Generally speaking, the decree-holder is the target of attack where a suit is instituted or an application is filed attacking the proceedings and the sale in consequence thereof on the ground of fraud. In the present case, no fraud is alleged against the certificate-holder, and, in my opinion the provisions of Section 46, Public Demands Recovery Ace have no application to the present case. It will indeed be a sad day for the administration of justice if the Civil Courts refused to entertain suits on the ground that a certain sale or other proceeding was brought about by the fraud of the other judgment-debtors or certificate-debtors. In the present suit, definite allegations are made that the certificate proceedings and the sale in consequence thereof were brought about] by collusion and fraud of the other certificate-debtors. I would hold, therefore, that there is no merit in this contention and the suit is not barred.
10. It is also urged that the certificate-holder, namely, the Jharia Mines Board of Health, was a necessary party to the suit and, in its absence, the suit is not maintainable. I have already said that no allegations of any kind are made against the Jharia Mines Board of Health in the plaint and, therefore, no relief is claimed against the Board.
In that view of the matter, in my opinion, there was no necessity of impleading the certificate-holder in the present suit. I have also indicated that an issue was raised as to whether the suit was maintainable in the absence of the certificate-holder, but that issue was not pressed. That being the position, I felt surprised when this point was vehemently urged by the learned Advocate-General.
Even if the issue had been pressed, in my opinion, there is no merit in the contention of the learned Advocate-General. He has relied upon the case of -- 'Gaibandha Loan Office Ltd. v. Mt. Saiyadunnessa Khatun', AIR 1943 Cal 114 (A). In that case, a certain property had been sold in execution of certificate under the Bengal Public Demands Recovery Act (Bengal Act 3 of 1913).
That suit was brought under Section 36 of that Act, and it was held that, in such a suit, the certificate-holder, namely, the Secretary of State, was a necessary party. That suit was based on the ground that notice under Section 7 of that Act had not been served, and the alternative case was that fraud was committed by the auction-purchaser.
Section 36 of the Bengal Act corresponds to Section 45 of the Bihar and Orissa Act. Their Lordships in that case held that, under the Pub-lic Demands Recovery Act, there are two alternative but mutually exclusive procedures to set aside a certificate sale on the ground of non-service of the notice issued under Section 7 of the Act; One Is by application to the Certificate Officer under Section 23 of that Act, and the other by suit in Civil Court under Section 36.
It was said in that case that where the first method was adopted by the certificate-debtor, his application must be heard with notice to both the auction-purchaser and the certificate-holder; and their Lordships did not see any reason why both of them should not be necessary parties to a suit under Section 36 where the same relief was asked for on the same ground.
In my judgment, that case is not an authority for the proposition that the certificate-holder is a necessary party where the suit is not on the ground that notice has not been served (Section 45 of the Bihar and Orissa Act), but the suit is bas-ed on fraud committed upon the Certificate Officer and the plaintiff, a certificate-debtor in the certificate proceeding by a co-certificate-debtor.
In the case of -- 'Arun Chandra Ray v. Ramanath Karmakar', AIR 1932 Cal 115 (B), the same Court held that, where a suit is not for setting aside a sale but to recover possession of the property, the Collector, the certificate-holder, was not a necessary party, and that only the parties who were in possession were necessary parties and, therefore, the suit could not fail on the ground that the Collector was not a party to the proceeding.
In 'Raghuraj Singh v. Maharaj Lal', 14 Cal CWN 606 (C), the same view had been taken to the effect that, where a plaintiff sued to recover possession of a property sold under the Public Demands Recovery Act on the ground that the certificate and the sale under it had in no way affected his rigms, being 'ab initio' null and void, and did not seek to set aside the sale, the plaintiff was not bound to malts the Secretary of State, the certificate-holder, a party to the suit.
A similar view was taken by our own High Court by a learned Single Judge in -- 'Lachmikant Deo v. Rameshwar Chaudhury', AIR 1948 Pat 104 CD), and it was held that, in a suit by a certificate-debtor to set aside a certificate sale held under the Act and for recovery of possession from the auction-purchaser, the Province of Bihar, which was the certificate-holder, was not a necessary party.
I must, therefore, hold that, in a suit where the plaintiff challenges the certificate proceeding and the sale on the ground of fraud of a, co-certificate-debtor and wants confirmation of possession, or recovery of possession of the property from the auction-purchaser or the persons in possession of the property, the certificate-holder is not a necessary party to the suit inasmuch as no relief is asked for against him and the whole proceeding is attacked from, beginning to end on the ground of fraud.
11. Learned Advocate-General has attacked] the finding of the Court below as to non-service of notice under Section 7 and other processes under the Public Demands Recovery Act on the ground that the Court below should nave held that the entry in the order-sheet showing service of notice was a good evidence of such service. The argument is based on the provisions of Section 114, Evidence Act, and specially on illustration (e) appended to that section.
Section 114 contains provisions relating to presumption, and illustration (e) reads as follows: "The Court may presume that judicial and official acts have been regularly performed", Under that section, read with the illustration, there is no doubt that, if ascertain judicial act has been performed and there is evidence to that effect, the presumption of law will be that it has been regularly performed.
It should he borne in mind that the section, read with the illustration, only raises a presumption but that presumption must naturally be a re_ buttable presumption; and a presumption is only a mode of proof which has to be considered along with other evidence. If there is evidence to the contrary, which the Court believes, the presumption can be of little avail.
Learned Advocate-General placed reliance on, the same case of -- 'AIR 1943 Cal 114 (A)', already referred to. Their Lordships at page 118 of the report say as follows:--
"We take it that where in a suit instituted/ by the certificate-debtor under Section 36 of the Act, service of notice under Section 7 is! denied by the plaintiff the initial onus is on the person who alleges service, that is tc say, on the defendant who tries to maintain the certificate sale".
After discussing several cases of that Court and a Privy Council case, viz., -- 'Collector of Gorakhpur v. Ram Sundar Mal', AIR 1934 PC 157 (E), their Lordships held that, under Section 35, Evidence Act, the entry in the order-sheet was evidence of the fact of service of notice, but their Lordships were careful to observe:
"It is no doubt only one item of evidence. But whether from that item of direct evidence the Court would be justified in holding that the fact of the service of the notices had been sufficiently proved would depend upon the facts and circumstances of the particular case".
Their Lordships of the Privy Council had only decided that, the statement in a certain decree that a pedigree had been filed by both the parties, to that suit, was admissible under Section 33, Evidence Act. The entry in the order-sheet about the service of notice is merely, to quote their Lordships of the Calcutta High Court, "one item of evidence", and that evidence must be considered along with other evidence on record, and, on a consideration of all evidence, the Court has to form its own opinion as to whether notice was served or not.
This 'prima facie' evidence, however, furnished by the entry in the order-sheet is not conclusive. (See also -- 'Parmeshwar Sahu v. Nandkishore Lal', AIR 1932 Pat 123 (F) ). I hold, therefore, that the Court below was right in considering all the evidence furnished by the parties, including the entry in the order-sheet; and, upon a consideration of the entire evidence on record, it held that the notice was not served.
The order-sheet, of the certificate case (Ex. I) shows that a notice, which, was ordered to be issued on 28-8-1939, when the certificate case was registered, was served, as indicated by the next order dated 16-10-1939. It is not disputed that this notice, though not specifically so mentioned, must be the notice under Section 7, Public Demands Recovery Act.
On 15-11-1939, the next date, the order-sheet shows that the certificate was made absolute, and the certificate-holder was to take step for D. W. N. S. T. by 28-11-1939. "D. W./N. S. T", perhaps, stand for "distress warrant and notice to settle terms". On the next date, no step was taken. After several dates, the order-sheet dated 11-5-1940 (not printed in the paper book) shows that N. S. T. was served.
On 24-5-1940, written sale proclamation was filed, and the order directed issue of sale proclamation fixing 15-7-1940, for sale. On 15-7-1940, the property was sold to defendant 1, Mritunjoy Mandal, for Rs. 50/-. It should be remembered that, under Section 7 of the Act, notice is given to the certificate-debtor to show cause as to why the certificate should not be executed, if he denies his liability to pay the amount mentioned in the certificate.
Upon the order-sheet, as it stands, this notice was served as also N.S.T.; but even the entry in the order-sheet does not show that the sale proclamation itself was at all served. Rule 25, made under the Public Demands Recovery Act, Schedule II, requires a proclamation of the intended sale to be made in the language of the Court, and such proclamation has to be drawn up after notice to the certificate-debtor.
Then, again, under Rule 26, the proclamation for sale has to be made at some place on or near such, property by beat of drum or other customary mode. It further requires that a copy of the proclamation shall be affixed on a, conspicuous part of the property and then upon a conspicuous part of the office of the Certificate Officer. Then it says, "A copy of the proclamation shall also be sent by registered pest to the certificate-debtor."
None of these requirements of the law appears to have been complied with before the sale was held. It has been already indicated that it is the established law that, where a sale or a decree is impeached on the ground of non-service or fraudulent suppression of notices and summonses and where the plaintiff denies such notices, the initial onus is on the person who alleges service, that is to say, on the defendant to the action who tries to maintain the impugned sale (AIR. 1943 Cal 114 (A)).
The answer given by the contesting defendants is that the connected papers' of the certificate proceeding were destroyed and not available. It is interesting to note that the Bihar Records Manual, 1941, App D, R. 5, Part I, at p. 149, describes the contents of file C of the record, and it includes all summons processes returns thereto etc, & it says that the file shall be destroyed at the end of two years. But there is an exception, and that reads as follows:
"When, a case has been decided ex parte, all the papers of the C file of the case will be treated as D class and will be destroyed after 12 years from the date of the decree."
There is no dispute that this rule applies to certificate proceedings, also inasmuch as the learned Advocate-General had himself relied, on this rule, without noticing at first the exception. Besides this, we hare the evidence of the Nazir of the Certificate Officer, Umashankar Ghose, witness No. 3 for defendant 2, who says that the records of certificate cases are sent to Purulia and they are at Purulia, The plaintiff, in her plaint, has stated that she had got an inquiry made after she was informed of the certificate sale, and all the necessary informations were ascertained and copies of papers were obtained. Her statement in the plaint is supported by the evidence of P. W. 3, the son of the plaintiff.
He says that he learnt about the entire proceeding when he took copies of all papers in August, 1944, he saw the papers of the certificate case also, and further that he came to know that there was an entry in the service of notice that notice on the plaintiff had been served in presence of Bhagirath Agrawal; and, therefore, Bhagirath Agrawal had been examined by the plaintiff as P. W. 1.
Prom the written statement of defendant 2, it appears that the notice under Section 7, Public Demands Recovery Act and all other processes were duly and properly served on the plaintiff in presence of her son. There is no doubt, therefore, that the relevant documents relating to the service of notice and other processes must have been available but were deliberately withheld and not produced by the defendants on whom the onus lay to prove that the notice and other processes had been served in the certificate proceeding on the plaintiff.
As I have said, the plaintiff has examined her son, P. W. 3, and Bhagirath Agrawal (P. W. 1), and they have denied service of notice on the plaintiff. The Court below has believed their statement, and no reason has been suggested here in this Court as to why they should not be believed. It must, therefore, be held that the notice and other processes in the certificate proceeding had not been served upon the plaintiff.
I am conscious of the position in law that mere, non-service of summonses or other notices is not enough for a declaration that the plaintiff's property in suit was not affected by the certificate sale: the plaintiff has to prove fraudulent suppression off summonses and other processes. I will refer to this a little later.
I would, therefore, hold, negativing the contention of the learned Advocate-General, that in the present case, in view of the evidence on record, there was no service of notice under Section 7 or of any other notice under the Public Demands Recovery Act on the plaintiff.
12. It is urged further that a cosharer is entitled to bid and purchase a property put at auction sale, and for that purpose Rule 48, Public Demands Recovery Act has been placed before us. It says that where the property sold is a share of undivided immovable property, and two or more persons, of whom one is a co-sharer, respectively bid the same sum for such property or for any lot, the bid shall be deemed to be the bid of the co-sharer.
In my opinion, this matter is of no importance at all. The question here is that fraud has been practised upon the Certificate Officer and the plaintiff by one or all the other co-sharers of the plaintiff. If no fraud is established, the matter is at an end and the suit must be dismissed. If, on the other hand, fraud is established, then it must be held that the plaintiff's right in the property has not been affected.
13. The last point urged by the learned Advocate-General is in regard to the effect of non-service of the sale proclamation. In a way, I have already answered this question by expressing my opinion that mere non-service of notice will not invalidate either the decree or the sale if the non-service is not due to fraud or collusion.
The question, however, has to be viewed differently. If a certain special tribunal is given power to do a particular thing in a particular manner, that tribunal must do that thing in the manner indicated by the statute or not at all; and if the thing done by the special tribunal is in contravention of the statute, then the Civil Court has ample power to interfere and give relief to the party aggrieved.
I, however, do not think I am called upon in the present case to give my decision on this question, because I am going to hold that the entire proceeding is vitiated by fraud and collusion. I would, therefore, now address myself to the consideration of the question of fraud.
In the majority of cases fraud acts in a very mysterious manner. The man, who commits fraud, takes all possible precaution to conceal the same, and it is done in such a manner that it requires going beneath the surface to discover the fraud. I have already held that mere non-service of summons by itself cannot give any relief to the plaintiff and that it does not by itself amount to fraud. Summonses, however, where they are suppressed with intent to deceive and take undue advantage of the party affected, is certainly fraud.
If there is a deliberate contrivance on the part of the defendants to suppress the notices for their own advantage, then their conduct amounts to fraud and non-service of the notices must be held fraudulent. In the present case, therefore, we shall consider the question in this background.
I have said that defendants 3 and 4, along with their other three partners, Durga Prasad Singh, Hardayal Singh and Rameshwar Chakravarty, had granted a mokarrari lease in respect of 279 bighas of coal land to Chunilal Marwari and Srimati Mat-kuri Dasi, and, after partition amongst the family members of defendants 3 and 4, defendants 3 and 4 each got 17/G2nd share out of the four annas share held by their father, Ramkalpa Chakravarty, and the plaintiff had purchased the shave of these defendants 3 and 4 in these 279 bighas of coal land given to Chunilal Marwari and Srimati Matkuri Dasi.
The defendants 3, 4, 5, 6, 7 and 8, are all related to each other, and at one time they belonged to one family, though there had been partition in the family long time before the present proceeding started. The plaintiff was the only stranger amongst these defendants.
According to defendant 6, on the death of the father of defendants 5 and 6, defendant 5 got all the interest" in the coal lands by private arrangement between the two brothers and defendant 6 had no concern with it, and it was in 1943 that, on actual partition, defendant 6 got the entire interest in these coal lands, including the lands in suit; and, perhaps, that is the reason suggested why defendant 6 was not made a party to the certificate proceedings.
Defendant 6 does not say so clearly, but that is his insinuation. It would be surprising indeed if of the two brothers only defendant 5 was mentioned in the records of the Jharia Mines Board of Health, the certificate-holder, and defendant 8 was not at all mentioned on the death of their father. Defendant 5, however, in the written states menthas made statements to the following effect:
1. That both the brothers inherited the 17/31st share in Balliaiy property, including the property in suit, and "Possessed the same jointly by realising royalty from tenants and paying Mines Board, Water Board, Road Cess according to that share", and, by family partition, the entire share fell to the share of defendant 6, and a formal partition deed was executed on 17-3-1943;
2. That defendant 5 was not aware of the certificate sale, and "The property Baliary having fallen in the share of defendant 6, this defendant has not taken any interest or information regarding that property", and further
3. That defendant 1 was in charge of court case of this defendant (defendant 5) and defendant 6, but he had not given any account nor any information up to the date of the filing of the written statement to defendant 5 in respect of that property.
This written statement, therefore, suggests that at first both the brothers were jointly interested and both used to pay the cesses to the certificate-holder, and, after partition, defendant 6 alone was interested in the property. Defendant 6, in this evidence in Court, says that he did not know the details of the certificate case and that he did not remember whether he knew anything about the certificate case.
According to him, one month after their father's death, there was a private partition between him and his brother (defendant 5) and defendant 6 was not given any share in Balliary; and when there was re-partition in March, 1943 by a register, ed partition deed by arbitrators, then he got the entire share in Balliary. He was not in a position to deny whether he had any interest in the property in suit at the time of the auction sale in the certificate case in question and whether defendant 5 had any interest at the time of the auction sale.
Then he changed Ms statement and said that defendant 5 had interest and that he had no interest in this property in July, 1940 when the sale took place, as he got the Balliary property in March, 1943, oil re-partition with defendant 5. I do not believe a bit of what he has said. He is trying to prevaricate and to show that he had no interest at the time when the certificate proceedings started or at the time when the property in suit was sold.
The way in which he has deposed leaves no room for doubt that he had ample interest in the property at all relevant times, and that becomes clear from his other statements in the witness-box. He had said in unequivocal terms that he had taken no transfer, or re-transfer from defendant 1 in respect of the disputed property and that at the time of re-partition it was known to him that the disputed property had already been sold.
In spite of it however, there was no mention of the certificate sale in the partition deed. Then he says that he and defendant 5 mortgaged their share in Balliary properties to one Gauri Rani Devi (Ex. 1) on 14-3-1943. This property was given in mortgage, according to him, a few days before the registration of the partition deed. It does not stand to reason how he could mortgage the property when he had no interest up to the date of the mortgage in the property mortgaged.
According to him, the partition deed is subsequent to the mortgage deed. This mortgage, as I have said, is of the year 1943 and the sale of the property in the certificate proceedings had taken place in July, 1940. It is not understandable how this mortgage could be executed by these two brothers if their interest also had been sold in the certificate proceedings.
The climax is reached when defendant 1 became a witness to this mortgage and, according to this witness, defendant 1 knew full well that defendants 5 and 6 were mortgaging their share in the suit property to Gauri Rani Devi. Defendant 9 got the entire consideration money of Rs. 9,000/-and defendant 1, who was the auction-purchaser and who had not sold his interest in favour of defendant 5 or defendant 6, did not get anything out of the consideration money. Even this mortgage does not mention the fact of the auction pur., chase. He says, "At the time of mortgage, I was the real owner of the disputed property as I had got it by arbitration but the partition deed was registered a few days afterwards."
In his previous statement, already referred to, he had said unequivocally that he got the entire property on re-partition in March, 1943, by the registered partition deed. How could he have mortgaged the property as his own before the execution of the partition deed? That is a question which needs no answer as the answer is, obvious.
After the mortgage, defendant 6 alone sold the entire interest in the Balliary lands, including the land in suit, to defendants 7 and 8 and their mother in 1945 for a consideration of Rs. 16,000/-. The auction sale is not mentioned even in this sale deed to defendants 7 and 8 and their mother.
This defendant 6 is a lawyer and a lawyer of some standing, and he confesses that he should have taken a sale deed from defendant 1 with regard to his share in the property in suit before he gave the property in mortgage and before he sold the same to defendants 7 and 8 and their mother. He says that defendant 1 signed as a witness in the mortgage bond knowing the full details of the mortgage and, therefore, this witness felt confident that he could not refuse, if he would ask him, to execute any sale deed later on.
All these statements of defendant 6 leave absolutely no doubt in my mind that there was no private or other arrangement by which defendant 5 alone was to be the owner of the interest belonging to defendants 5 and 6 in the property. Defendant 6 was the owner of that property jointly if not solely. Is it not curious then that defendant 6 would not be made a party to the certificate proceedings?
It appears to me, that conclusion is inevitable, that defendant 6 has manoeuvred the whole thing; in collusion with defendant I, who is no other person than a very trusted servant or friend of defendant 6. Defendant 1 has not chosen, in spite of his written statement, to come to the witness-box. Defendant 1, according to the plaintiff's allegations, is the servant of defendant 6.
Defendant 5, as I have already said, in his written statement admitted that defendant 1 used to look after the court cases of defendants 5 and 6. Let us see what defendant 6 says about him In his written statement, para. 7, he says that defendant 1 is not a servant and employee of defendants 3 to 8, and the allegations to the contrary in the plaint are false, and that the said defendant 1 is a registered clerk of one Babu K. P. Singh Chaudhury, pleader, Dhanbad.
In his evidence, however, he denied that Mritunjoy Mandal, defendant 1, was his servant and that he used to look after his works. He said, however, that he used to live with him at his house and that formerly he was his registered clerk for 15 years, and then he became clerk of another pleader, and further that even thereafter this defendant 6 used to give him food as he was a poor man.
It was defendant 1 who informed him about the sale after his purchase at auction sale in question, and that he gave this information the very day oh which the auction took place. He boldly asserted that he was not a party to the certificate case and his interest was not affected.
In cross examination, he says first that defendant 1 is not at his house for the last two or three months, but before that he used to give him food; and later, he said that he did not meet defendant 1 for the last two days before the date he was examined. He admitted that defendant 1 used to look after the case work of defendants 3 and 4 and defendants 7 and 8.
All this shows that defendant 1 was intimately connected with defendant 6 and also with the other defendants. He was his clerk for 15 years and then, even after he ceased to be his clerk, he was given food by defendant 6. According to the plaintiff's case, defendant 1 used to make realisation of all dues from all the cosharers, including the plaintiff, and then he used to make deposit in the office of the Jharia Mines Board of Health.
The plaintiff has produced Ex. 8, a copy of local cess chalan. This chalan is a copy of the chalan by which local cess was deposited for the year 1939-40 in respect of another certificate case. No. 224/RC of 1939-40. This is not the chalan for the year 1938-39, for which the certificate case had been started and at which the property had been sold in 1940; this chalan is for the subsequent year.
According to the plaintiff's evidence, defendant 1. in the usual course, came to demand from the plaintiff her share in the cess for depositing in the office of the Jharia Mines Board of Health.
The plaintiff's son insisted that the name of Janki Devi also should be mentioned in the column meant for the name of the prayer.
The defendant 1 came to the plaintiff with a chalan already filled up and upon the insistence of the plaintiff's son, P. W. .3, the name of Janki Devi was added later, and then the money was paid and the money was deposited.
The plaintiff therefore, by this transaction intends to snow that defendant usually used to collect local cess from the respective persons interested in the Balliary collieries and the plaintiff also used to pay to defendant 1 her share of the cess, When this defendant 6 is asked about this, he says.
"I can't say whether defendant 1 used to make realisation of all dues from all the cosharers of 4 annas and then used to make deposit. Defendant 1 deposited cess on my behalf and Khudi Ram (Defendant 5) on some occasions prior to auction purchase."
Defendant 1, as admitted by this witness (defendant 6), was a witness in the sale deed executed by defendant 3 in favour of the plaintiff. P. W. 3 says that defendant 1 lives with defendant 6 and dines with defendant 6 in his house, and further that defendant 1 looks after the case of defendants 3 to 8 in Court. He also says that defendant 1 used to realise cess and also the cess of the Jharia Mines Board of Health of the plaintiff's share from) the plaintiff for the purpose of making payment.
All these statements taken together show that defendant 1 used to look after the work of defendants 5 and 6, as admitted by defendant 6, and also of defendants 3, 4, 7 and 8, who were all related to each other, and that the plaintiff's case that defendant I used to collect money from the defendants and the plaintiff for payment to the certificate-holder is not improbable.
Defendant 1, therefore, must have been known to the office of the certificate-holder; and if that be so, it was not very difficult to manipulate in the office of the Jharia Mines Board of Health by which the name of defendant 6 should not be mentioned in the certificate proceedings at all. Defendant 1, as soon as he purchased the property at the auction, informed defendant 6 about it.
I find apparently no reason why he should have done so unless there had been some previous collaboration between defendant 1, on the one hand, and defendant 6, on the other. Defendant 1, upon the materials furnished on record, was a mere 'benamidar'. He bought the property for a sum, of Rs. 50/- only, a property which is valued at, at least, Rs. 6,000/-, if not more.
It had been purchased by the plaintiff for Rs. 4,400/- by two sale deeds, the first was in 1932 and the other in 1933. Soon after his purchase, defendant 1 sold to defendants 7 and 8 their interest in the property sold for a sum of Rs. 19-8-0, and to defendant 2 in 1943 for a sum of Rs. 500/-, and the share belonging to defendants 5 and 6 was not sold by defendant 1. In spite of it, we have seen that interest was mortgaged in 1343 and then sold by defendant 6 to defendants 7 and 8 and their mother.
The conduct of defendant 1 at the time of the mortgage by defendants 5 and 6 to Gauri Rant Devi by witnessing the mortgage deed speaks for itself. When the property was sold by defendant 6 to defendants 7 and 8 and their mother for a sum of Rs. 16,000/- not a shell was Raid to defendant 1. This is not enough.
According to defendant 1, he took delivery of possession of the property, which he had bought at the auction sale, on 8-9-1942. The receipt for delivery of possession is given by one Umapado Das, and, according to the plaintiff, he was a servant of Anath Lal Chakravarty and defendants 7 and Section and that he was still in service of defendants 7 and 8.
Defendant 1 also appears to have been a servant of defendant 5 from the receipts Exs. 4 (s) to 4 (x), which are in the pen of Mirtunjoy Mandal. These receipts were granted on behalf of defendant 5. There are other documents also showing connection of defendant 1 with defendants 5 and 6. From the evidence of witness No. 2 for the plaintiff, who has proved a number of receipts, Exs. 4 (e), 4 (h) and 4 (i), it is clear that these receipts were in the pen of Umapado Das as servant of defendants 7 and 8.
There is no doubt, therefore, that Umapado Das was a servant of defendants 7 and 8, and he is the person who has taken delivery of possession on behalf of defendant 1, although it is said by defendant 6 that defendant 5 was not dispossessed by this delivery of possession and the delivery of possession wa's a mere symbolical delivery of possession.
In my judgment, all these facts leave no room for doubt that defendant 1 was a mere 'benamidar1 either for defendant 6 alone or for the whole lot of the defendants, defendants 3 to 8. The sale by defendant 1 to defendant 2 also, in my judgment, appears to be a mere sham transaction. Defendant 2 has examined himself as witness No. 2 for defendant 2, and a perusal of his evidence leaves no room for doubt that he is merely a name-lender. He did not know anything about the certificate case before his purchase and did not look to the sale certificate before his purchase.
One Mr. B. K. Mitra, his pleader, asked him to purchase and he told him that everything was all right, and so he purchased. This witness did not even ask Mr. Mitra whether he himself had made any enquiry. There was an offer for Rs. 500/-os the consideration money and this man accepted the same. He did not even make enquiry whether defendant 1 had taken delivery of possession. So far as the consideration money is concerned, he does not remember whether he withdrew it from bank or took it from his house. This fact could be known from his khata bahis, but these khata bahis are not before the Court. He does not even remember whether the money was paid after registration or before registration, and the climax is reached when he says that he had no talk with defendant 1 and he did not meet defendant 1 up to the time of his deposition on 30-4-1947.
His Tahsildar, D. W. 1 for defendant 2, also says that he did not make any enquiry nor was defendant 1 asked by this witness to show any paper. He brought the money from defendant 2 and he gave it to Mr. B. K. Mitra, and Mr. B. K. Mitra is supposed to have given that money to defendant I. But Mr. B. K. Mitra, who was an important witness on the passing of consideration, when the nature of the transaction was challenged, did not choose to come to the witness-box. In his written statement, as I have already said, defendant 2 had mentioned that the service of notice in the certificate proceedings was done on the plaintiff in presence of the plaintiffs son.
When asked about it in the witness box he said, "I do not remember whether I have noted in the written statement that service in the certificate case was made on the plaintiff in presence of the plaintiff's son". In my opinion, the Court bslow is absolutely right when it characterises this sale as a mere sham transaction and that defendant 2 is not a real purchaser but a mere name-lender.
14. All these facts and the circumstances mentioned above leave no room for doubt in my mind that the plaintiff was deliberately kept unaware of the certificate proceeding which was only for a sum of Rs. 25/- and that all the processes were suppressed with a purpose, the purpose being to anyhow grab the property of th'e plaintiff, the only stranger cosharer to defendants 3 to 8.
It also appears to me that defendant 6 manipulated the whole thing through his agent, defendant 1, and it is also likely that the other defendants were privy to these machinations of defendant 6 or at least they were aware of the fraud of defendant 6.
I hold, therefore, that the notice in the certificate proceedings and other processes were fraudulently suppressed, and I agree with the Court below in holding that the sale brought about by such fraud cannot affect the interest of the plaintiff in the property sold. Mr. Ghosh referred to the case of -- 'Nanda Kumar v. Ram Jiban', AIR 1914 Cal 232 (G). I respectfully agree with the observations of Jenkins, C. J. at pages 232-233, where it is said:
"The Jurisdiction to impugn a previous decree for fraud is beyond the question: it is recognised by Section 44, Evidence Act and is confirmed by a long line of authority. But it is a jurisdiction to be exercised with care and reserve, for it would be highly detrimental to encourage the idea in litigants that the final judgment in a suit is to be merely a prelude to further litigation.
The fraud used in obtaining the decree being the principal point in issue, it is necessary to establish it by proof before the propriety of the prior decree can be investigated: Mitford on Pleadings, 113. Decrees may be (i) by consent: (ii) ex parte, or (iii) after contest, apparent or real; and though each is liable to be attacked for fraud, the character of the fraud would vary with the circumstances of each case One who seeks to impugn a decree passed after contest takes on himself a very heavy burden, and it is not satisfied by merely inducing the Court to come to the conclusion that the appreciation of the evidence and the ultimate decision in the former suit was erroneous.
A prior judgment, it has been said, cannot be upset on a mere general allegation of fraud or collusion; it must be shown how, when, where and in what way the fraud was committed: --'Shedden v. Patrick', (1854) 1 Macq 535 (H). Sir John Rolt L. J. in -- 'Patch v. Ward', (1867) 3 Ch A 203 (I), discussing what is meant by fraud when it is said that a decree may be impeached for fraud, said 'the fraud must be actual, positive fraud, a-meditated and intentional contrivance to keep the parties and the Court in ignorance of the real facts, of the case and obtaining that decree by that contrivance'.
And Lord Selborne, in -- 'Ochsenbein v. Papelier', (1873) 8 Ch App 695 at page 698 (J), quotes as sound law the dictum of Chief Justice De Grey in the -- 'Dutchess of Kingston's case', (1776) 2 Sm LC 11th Ed. 731 (K), that a judgment, 'like all other acts of the highest judicial authority, is impeachable from without; although it is not permitted to show that the Court was mistaken, it may be shown that they were misled" '.
I was quite alive to the dictum laid above in considering the evidence relating to fraud, and I could not have come to any other decision than I have arrived at.
15. I have already referred to Mr. B. K. Mitra, on whose sole advice defendant 2 purchased this property. Mr. B. K. Mitra appeared in, the suit for defendant 2. Mr, Mitra ought to have known that he was an important witness in the suit as he was the only person who had negotiated with defendant 1 for the sale of the property to defendant 2 and he was the witness who is supposed to have handed over the consideration to defendant 1 on behalf of defendant 2.
There was no other evidence. He should therefore, have refrained from accepting the brief on behalf of defendant 2, As he was himself a lawyer for defendant 2, it appears, he was not offered for examination on behalf of defendant 2. This Court has more than once condemned this practice of a person appearing as a lawyer in a case in which he was a likely witness for one party or the other -- 'Dharnidhar Roy v. Phul Kumari Debi', AIR 1945 Pat 391 (L).
Mr. B. K. Mitra by his appearing as a lawyer in this case has shown "regrettable want of sense of profession etiquette", and he would do well to remember that an advocate or a pleader should not act as a witness and as a counsel in the same case, and that he should not accept a brief in a Case in which he has reasons to believe that he will be a witness and if being engaged in a case it becomes apparent that he is a witness on a material question of fact he ought not to continue to appear as a counsel if he can retire without jeopardising his client's interest (See Halsbury's Laws of England, Third Edn., Volume III, page 68, Article 102).
16. In the result, I would dismiss this appeal with costs.
Ahmad, J.
17. I agree.