Decided on July 13,1953



Narasimham J. - (1.) 'Touzi' No. 2717/3 of Cuttack Collectorate, bearing a 'Sadarzama' of Rs. 2, 701/3/-, originally belonged to Gajarajpur Choudhuries represented by defendants 3 to 8 in this litigation. In that 'touzi' were included two villages known as Korkar and Erada bearing a 'Sadarzama' of Rs. 846/-. The said two villages had been previously mortgaged by the Choudhuries with Sri M.S. Rao, an Advocate of Cuttack. On 2-3-40 the Choudhuries registred a 'Kabala' (Ext. 6-a) purporting to convey their-entire interest in the said two villages in favour of the plaintiff for a consideration of Rs. 1,205/--On the same day the said vendors registered another sale deed (Ext. 6) transferring to the plaintiff for a sum of Rs. 975/- their right to recover arrear rental in the said two 'mouzas' In the second sale-deed (Ext. 6) it was stated that the vendors had transferred their proprietary interest in the two villages to the plaintiff & that they were, therefore, transferring their right to recover arrear rental from the tenants of the villages in favour of the new proprietor. On 5-3-40 the entire consideration of the second 'Kabala' (Rs. 975/-) was received by defendant 3 on behalf of the Choudhuries and the original 'Kabala' (Ext. 6) was handed over to the plaintiff along with a receipt Ext. 1. The original of the main 'Kabala' (Ext. 6-a) relating to the transfer of the proprietary interest in the two villages, however, remained with the vendors as some differences arose between the parties regarding the procedure to be adopted for payment of the money to the mortgagee, namely, Sri M.S. Rao, before obtaining delivery of the document. On 15-6- 1940 a notice was issued by the Advocate of the Choudhuries calling upon the plaintiff to pay the entire consideration money of the 'Kabala' within seven days. The plaintiff also sent a reply notice through her Advocate (Ext, 5) on 31-8-40 expressing her readiness and willingness to pay, the consideration to the mortgagee and obtain custody of the document. There was exchange of telegram and letters between the parties on 3-8-40, and 58- 40. On 5-8-40 the Choudhuries executed a 'Nadavi' deed (Ext. B) cancelling the previous sale-deed executed by them in favour of the plaintiff and on the same day executed another sale-deed (Ext. A) conveying their proprietary interest in the two villages to defendant 1. This led to a dispute between the plaintiff and defendant 1 as to whose title to the villages should prevail. As is to be expected, the dispute was first fought in the mutation proceedings before the Collector under the Bengal Land Registration Act. Defendant 1, however, succeeded in getting his name mutated on 29-10-41. He paid his quota of the Government revenue; but his co-sharers in the 'touzi' namely, the Choudhuries (defendants 3 to 8) defaulted in payment of their quota and on 13-3-42 'touzi' No. 2717/3 was put up for revenue sale for arrears of revenue and purchased ,by defendant 2, Dewan Bahadur Lakshmidhar Mohanty, who is a senior Advocate of Cuttack Bar. On 13-10-42 he conveyed the proprietary interest in the two villages in favour of defendant 1, Subsequently, in December 1942 and January 1943 he conveyed other portions of the said 'touzi' in favour of defendants 3 to 8 and also in favour of de-fendants 10 and 11 retaining a small portion of the 'touzi' for himself.
(2.) The plaintiff's case was that the title to the two 'mouzas', namely, Korkar and Erada had been completely transferred to her by the Choudhuries as soon as the first 'Kabala' (Ext. 6-a) was registered on 2-3-40. The Choudhuries had, therefore, no right to cancel the 'Kabala' and re-transfer the said two villages in favour of defendant 1 by their second 'Kabala' (Ext. A) and that no title passed by that 'Kabala'. The plaintiff further urged that defendant 2 entered into a fraudulent conspiracy with defendant 1 and the Choudhuries for the purpose of extinguishing the rights of the plaintiff and that in pursuance of this fraud there was a deliberate default in payment of Government revenue by defendants 3 to 8 and that the purchase by defendant 2 in the revenue sale was 'benami' on behalf of defendant 1 himself. She, therefore, claimed that she was entitled to a reconveyance of the disputed property by defendant 1. Though Section 90, Trusts Act, was not expressly mentioned in the plaint it appears from a fair reading of paras 13 and 16 of the plaint that the plaintiff's case all along was that defendant 1 was in the position of a trustee of the plaintiff and inasmuch as he gained an advantage by availing himself of his position as that trustee he should reconvey the property to the plaintiff by way of equitable relief. The suit was not brought for the purpose of annulling the revenue sale under Section 33, Bengal Land Revenue Sales Act (Act 11 of 1859) and there was not even an allegation that there was any fraud in publishing and conducting the sale or else that the processes were fraudulently suppressed. It appears from the judgment of the trial Court that this position was not disputed by the learned Advocate for the plaintiff who clearly stated before the trial Court that he did not want the revenue sale to be set aside but only prayed for a decree for reconveyance of the suit property in favour of the plaintiff by defendant 1, No relief was asked for either against defendant 2 or against the other defendants in whose favour portions of the 'touzi' had been transferred by defendant 2 after his purchase in the revenue sale. Consequently, the only contesting defendant was defendant 1.
(3.) The trial Court (2nd Munsif of Cuttack) and the lower appellate Court (Addl. Subordi- nate Judge, Cuttack) both held that the title to the suit property passed to the plaintiff by virtue of the first 'Kabala' (Ext. 6-a) dated 2-3-40 and that it was not the intention of the parties that the title should pass only after payment of the consideration of the 'Kabala'. But they concurrently held that the revenue sale and purchase of the 'touzi' by defendant 2 were brought about in pursuance of a fraudulent conspiracy on the part of defendants 1 and 2 and the Choudhuries (defendants 3 to 8) with a view to extinguish the plaintiff's right in the suit property and that the equitable principles of Section 90, Trusts Act, would apply to the present case. The main motive for such a fraudulent con-spiracy was said to be the bitter enmity between the plaintiff's husband on the one hand and defendant 2 on the other in an adoption suit which was then pending. Defendant 1 had deposed on behalf of defendant 2 in that adoption suit and the Courts accepted the-plaintiff's evidence to the effect that defendant 1 was an intimate friend and practically a tool in the hands of defendant 2, one of the senior Advocates of Cuttack Bar. Defendant 1 has preferred this second appeal against the concurrent decisions of the two Courts.;

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