Poshan Mandal and Others vs Jhagroo Mandal and Others

Ross, J.—This is an appeal by the defendants. The facts are that the plaintiffs'' father was a cousin of defendant 1 and they were separate. The plaintiffs'' father died leaving a debt on which a decree had been passed for money and in execution of that decree the land in suit was sold for Rs. 100 to one Raghunandan Chaudhury. The amount of the debt was Rs. 300. At this time the plaintiffs were minors and defendant 1 was in possession of the land on their behalf as the land formed, along with the defendant''s land, one holding.

The defendant purchased the land from the auction purchaser for Rs. 300 a sum which satisfied the judgment-debt. On these facts the Courts below have found that defendant 1 was in a fiduciary relation to the plaintiffs and is bound to recovery the property to them on receiving what he paid for it.

The case in the plaint was a case of fraud; that the property had in fact been purchased by the plaintiff''s mother who provided the money, but the conveyance was fraudulently taken in the name of the defendant. The Courts have found against the plaintiffs on this case.

The contention on behalf of the defendant who appeals is that no fiduciary relation has been established. The test is whether the defendant was in a position where his interest and his duty conflicted; if he was, then the Court will not allow him to occupy that position. But I am unable to find on the facts any conflict of duty and interest. The learned Subordinate Judge uses the word ''guardian or agent'' in connexion with the position of the defendant; but he was not an agent of the plaintiffs for the purchase of this land from the auction purchaser; that is nowhere suggested. It is not found that he purchased the land at an under-value.

All that the learned Judge says is that the land was sold not with reference to its market value but with reference to the satisfaction of the decree and he seems to think that this sale was in essence a reconveyance to the judgment-debtor. This is a pure speculation. If it had been found that the land had been sold at an under-value, then it might have been said that the defendant had taken advantage of his position. But there is no such finding and the fact that the value of the land coincides with the amount of the judgment-debt throws no light on the question. The defendant was under no obligation to satisfy this decree and he was in no way responsible for its discharge. The land was sold in satisfaction of the decree. He was not bound to protect the land from sale; and when the land came into the market again, I can see nothing to prevent him from buying it, as there is no suggestion that he took advantage of his position towards the plaintiffs. I think the Courts below in deciding the case as they have done, have gone on speculative grounds which were not justified on the facts.

I would, therefore, allow this appeal and set aside the decrees of the Courts below and dismiss the suit with costs throughout.

Wort, J.

I agree.