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Smart Summary

Summary of the Legal Opinion — Letters Patent Appeal (Baker, J.)

Factual and Procedural Background

The appeal is a Letters Patent appeal from the decision of Shingne, J., confirming earlier decisions in favour of the plaintiff in a suit to recover by partition a moiety (half share) of certain sheri lands with mesne profits and costs.

Procedural history provided in the opinion:

  • At trial the Subordinate Judge of Vengurla awarded the plaintiff's claim.
  • On appeal the decision was confirmed by the First Class Subordinate (Eatnagiri) with appellate powers.
  • A second appeal was heard and confirmed by Shingne, J.
  • The present Letters Patent appeal is against Shingne, J.'s decision.

Material facts (as stated in the opinion):

  • Government had let certain sheri lands in Malvan taluka on 30-year leases (a patta of 1883 is mentioned).
  • The family holding the lands included the father of defendants 1 and 2 (the actual lessee) and another member named Anant (in whose name the lease originally stood).
  • On the father's death defendants 1 and 2 became entitled to equal shares; defendant 2 mortgaged his share to the plaintiff and, in execution of a decree, the plaintiff purchased half of defendant 2's interest in the equity of redemption.
  • In 1897 defendant 2 let his half to defendant 1 by a kabuliyat (a rent-note) for ten years (expiring 1907); the plaintiff brought rent suits to recover the income of the mortgaged half.
  • Defendant 1 did not give possession on expiry in 1907, litigation ensued and the question of the new Government grant arose when the 30-year lease expired circa 1913; a revenue inquiry resulted in an occupancy tenancy being granted in 1914 to defendant 1.
  • The plaintiff sued as the representative/alienee of defendant 2 (Atmaram) to recover possession of the half share; lower courts and the High Court found against the appellant (defendant 1).

Legal Issues Presented

  1. Whether Section 90 of the Trusts Act applies where the patta of 1883 was in another family member's name and defendant 1 was said to be a trespasser on the suit lands (i.e., whether defendant 1 was a trespasser so that S. 90 would not apply).
  2. Whether defendant 1's possession after expiry of the 1897 kabuliyat (in 1907) was adverse to defendant 2 (and the plaintiff who claims under him) such that adverse possession barred the co-sharer's rights and S. 90 would not apply.
  3. Whether defendant 1 was merely a tenant-in-common/co-owner (and not a trustee for his co-sharer) such that Section 90 of the Trusts Act would not apply to the grant obtained from revenue authorities.

Arguments of the Parties

Appellant's Arguments (defendant 1)

  • Initially contended that the patta of 1883 was in the name of Dadaji (another branch) and that Eaghunath (father of defendants 1 and 2) and hence defendant 1 were trespassers on the suit lands; on that basis Section 90 would not apply.
  • Alternatively argued that defendant 1 held the moiety under a kabuliyat as a tenant-on-sufferance after 1907 and therefore in adverse possession vis-à-vis defendant 2 and the plaintiff, so Section 90 would not operate.
  • Alternatively, argued that defendant 1 was at most a tenant-in-common (co-owner) and not a trustee for his co-sharer, so S. 90 of the Trusts Act would not apply to the occupancy grant obtained by defendant 1.
  • The appellant also relied on certain English authorities (Kennedy v. De Trafford and Re Biss) to guide the legal approach, as was argued below.

Respondent's / Plaintiff's Arguments

  • The plaintiff, as purchaser of defendant 2's mortgaged interest and as his alienee, maintained that defendant 1 had, by suppressing material evidence (partition deed Ex. 102) and making false statements (Ex. 77) before the revenue authorities, unfairly gained the occupancy grant to defendant 1's own advantage.
  • The respondent invoked Section 90 (and Section 94) of the Trusts Act, arguing that where a co-owner, by availing himself of his position, gains an advantage to the detriment of the other co-owner, he must hold the advantage for the benefit of all interested persons.
  • The plaintiff relied on the compromise and partition documents (compromise Ex. 79 and partition Ex. 102) and on the chronology of events (kabuliyat, mortgage, purchase, and partition instruments) to show the plaintiff's equitable interest and that defendant 1's conduct caused the revenue authorities to overlook plaintiff's claim.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Ichalal v. Nago, AIR 1921 Bom 462, 60 IC 589 Article 144 — principle applicable to co-owners and the doctrine of adverse possession between co-owners. The court cited this authority to show the correct article applicable where co-owners are concerned and to support the conclusion that the case was not one where a co-sharer's title had been extinguished by adverse possession.
Kennedy v. De Trafford (1897) AC 180 English authority on fiduciary/advantage issues (relied on by appellant). Cited by the appellant; the court noted the English cases had been placed before Shingne, J., but emphasised that in India the Trusts Act and relevant Indian authorities are the guiding authorities rather than pure English rulings.
Re Biss / Biss v. Biss (1903) 2 Ch 40 English authority on analogous trustee/fiduciary principles (relied on by appellant). Quoted by the appellant; the court observed the English cases were put before Shingne, J., but preferred to apply the Trusts Act and Indian decisions.
Faizur Rahman v. Maimuna Khatum (1913) 20 IC 510 Indian authority upholding approaches under the Trusts Act rather than the older English reasoning (supporting application of S. 90). The court treated this case as an authority supportive of deciding questions under the Trusts Act; it was noted as quoted before Shingne, J., and later approved by the Privy Council (see Deonandan Prashad).
Doorga Singh v. Sheo Pershad Singh (1889) 16 Cal 194 Earlier Indian decision which was criticised for not giving proper weight to co-owners' obligations and was later disapproved by Privy Council authority. Recognised as a ruling that had been questioned; the court accepted that where there is fraud or deliberate suppression by a co-owner, the principle in Doorga Singh operates (i.e., that a co-owner who gains advantage by such means must hold it for others); but the opinion notes Doorga Singh was disapproved by a later Privy Council ruling.
Deonandan Prashad v. Janki Singh, AIR 1916 PC 227, 39 IC 346, 44 IA 30, 44 Cal 573 (PC) Privy Council decision disapproving Doorga Singh and approving Faizur Rahman; contains observations on co-owners' duties and need for candid dealing and good faith. The court relied on the Privy Council's disapproval of Doorga Singh and approval of Faizur Rahman, citing particularly a passage (p. 34 of 44 I.A.) stressing the duty of good faith among co-owners — reasoning the present case falls squarely within that principle because defendant 1 concealed material facts and made false statements.

Court's Reasoning and Analysis

The court proceeded issue by issue, applying facts found on the record and relevant legal principles:

  1. On the first contention (that defendant 1 was a trespasser because the patta of 1883 was in another branch's name):
    • The appellant abandoned the original framing of this point in argument because all courts had found as a fact that the actual lessee of the original public lease was the father of defendants 1 and 2, and defendant 1 had consistently been treated as a lessee from Government.
    • The court found there was effectively no interval when defendant 1 held the land in any capacity other than as lessee from Government: government action for renewal began in 1912, a revenue inquiry occurred in 1913 and the occupancy tenancy was granted in 1914.
    • In the revenue inquiry (Ex. 52, p. 26) defendant 1 was described as “heir of the lessee,” and therefore no title other than as lessee from Government arose — disposing of the first point as currently framed.
  2. On the second contention (adverse possession after the 1897 kabuliyat expired in 1907):
    • The court emphasised the special relationship: the kabuliyat was between cosharers (brothers), not a simple landlord-tenant relationship. Although relation as landlord/tenant under the rent-note ceased in 1907, the parties remained co-owners.
    • There was no evidence of an adverse assertion of title by defendant 1 that would oust defendant 2; the plaintiff brought a suit in 1912 (so the 12-year period for adverse possession would not have run in a way to extinguish the co-sharer's rights prior to that suit).
    • The court cited Ichalal v. Nago and Article 144 as applicable in co-owner adverse-possession contexts and agreed with Shingne, J.'s conclusion that this was not a case where a co-sharer's title had been extinguished by adverse possession.
  3. On the third and main contention (that Section 90 of the Trusts Act does not apply because defendant 1 was at most a tenant-in-common and not a trustee):
    • The court examined documentary history: a compromise (Ex. 79) envisaged that the disputed Kalse property would continue with defendant 1 for the rent-note period but that Atmaram's share was to be given to the plaintiff as auction-purchaser on expiry; partition deeds Ex. 65 and Ex. 102 were also executed and Ex. 102 stated Atmaram's half-share as “continuing with Keshav Gunaji Kondkar” (the plaintiff).
    • At the 1914 revenue inquiry defendant 1 produced Ex. 65 (relating to other property) but did not produce Ex. 102 (which specifically showed defendant 2's interest in the suit lands). Defendant 1 made a statement (Ex. 77) falsely asserting that Atmaram had no right over the property and did not want it.
    • The revenue authorities, acting on the information before them, awarded the occupancy tenancy to defendant 1. The court treated defendant 1's suppression of Ex. 102 and false statement as a deliberate misrepresentation that gained him the advantage of exclusive grant.
    • Applying Section 90 of the Trusts Act — which the court quoted — the court held that where a co-owner avails himself of his position to gain an advantage to the derogation of others interested, he must hold that advantage for their benefit.
    • The court rejected reliance solely on English cases advanced by the appellant and instead followed Indian authorities and the Privy Council's guidance (Deonandan Prashad), which emphasise the special duties of co-owners and require candid dealing; the court saw the facts as amounting to fraud such that Section 90 must operate.
  4. Additional procedural relief considered:
    • The trial court had included a clause allowing defendant 1 to approach Government not to recognise the plaintiff or defendant 2; Shingne, J. deleted that clause and the appellate court agreed that the clause should be deleted because the revenue grants were expressly made subject to civil rights determined by the civil court, and a civil court should not assist the defendant to re-agitate the matter before the revenue authorities.

Holding and Implications

Holding (core ruling):

APPEAL DISMISSED WITH COSTS

Direct consequences and implications as stated in the opinion:

  • The court agreed with Shingne, J.'s conclusion that Section 90 of the Trusts Act applies: the appellant (defendant 1) did not obtain a beneficial interest by the revenue grant but must be held to hold the advantage (the occupancy grant) for the benefit of the plaintiff (as representative/alienee of defendant 2) and defendant 2.
  • The clause in the lower court's decree that would have enabled defendant 1 to move Government not to recognise the plaintiff or defendant 2 was deleted — the court refused to give defendant 1 assistance to re-agitate the matter before the revenue authorities in view of the civil court's determination.
  • The appeal was dismissed and the respondent (plaintiff) succeeded; the order of Shingne, J. was affirmed.

The opinion grounds its decision on the documentary record (compromise and partition documents), the conduct before the revenue authorities (suppression of Ex. 102 and false statement Ex. 77), and the operation of Sections 90 (and 94) of the Trusts Act as explained by Indian authorities and the Privy Council in Deonandan Prashad v. Janki Singh.

Decision rendered: Appeal dismissed.

Show full summary ...

    Dharma Raghunath Desai v. Keshav Gunajee Kondkar

    Baker, J.:— This is a Letters Patent appeal against the decision of Shingne, J., sitting singly, in a suit brought by the plaintiff, to recover by partition a moiety of the plaint property with mesne profits and costs. The Subordinate Judge of Vengurla awarded the plaintiff's claim, and on appeal, this decision was confirmed by the first Class Subordinate of Eatnagiri with appellate powers. There was a second appeal against that decision, which was confirmed by Shingne, J., and there is now a Letters Patent appeal against his decision. The facts are simple. There were certain sheri lands in the Malvan taluka which were let out by Government on lease for 30 years. The lands in suit were in the possession of the father of defendants 1 and 2. The present defendant 1 is the appellant. Although the lease was in the name of Anant, a member of another branch of the family, it is now quite clear that the actual lessee was the father of defendants 1 and 2. On his death, defendants 1 and 2 became entitled to equal shares in these lands. Defendant 2 let his half share of the lands to his brother, defendant 1. Now defendant 2 had mortgaged his share to the present plaintiff, and in execution of a decree against him the present plaintiff had purchased half of defendant 2's interest in the equity of redemption. There was a kabuliyat in the year 1897 and the plaintiff was obliged to bring various rent suits against defendant 1 to recover the income of the half share which defendant 2 had mortgaged to him.

    2. The kabuliyat expired in 1907, but defendant 1 did not give possession to defendant 2 or to his mortgagee, the plaintiff, and there was a suit brought on that account which went up to the High Court. Meanwhile in 1913 the 30 years' lease granted by Government expired, and under the orders of Government the revenue authorities held inquiries to see to whom a new lease under the ordinary occupancy tenure could be granted. At the revenue inquiry defendant 1 appeared, as did one or two other claimants including the plaintiff, and ultimately the revenue Page: 220authorities decided to grant the occupancy tenancy to defendant 1. That was in 1914 and the present suit was brought by the plaintiff as representing the interest of Atmaram, defendant 2, who is the brother of defendant 1, to recover possession of his half share in the property. This suit has been contested on every possible ground, but all the Courts up to the High Court have found against the appellant defendant 1. In this Letters Patent appeal one or two issues have been introduced, which, so far as I can see, were in to argued before in spite of the lengthy litigation which has already proceeded with regard to this property. Before Shingne, J., the points raised were (1) that the patta of 1883 was in the name of Dadaji, the father of defendant 3, and that Eaghunath, the father of defendants 1 and 2, and after him defendant 1 were trespassers on suit lands and therefore Section 90 of the Trusts Act, will not apply; (2) that failing on this point, it was contended that defendant 1 was holding the moiety in suit lands as a tenant-on-sufferance and was, therefore, in adverse possession, and so S. 90 will not apply; (3) that failing on these points, it was contended that defendant 1 will at the most be a tenant-in-common of suit lands and cannot be said to be a trustee for his co-sharer, and therefore S. 90 will not apply. Now the first of these points has been expressly given up by the learned counsel for the appellant. But he has slightly shifted his ground and has taken a point that after the expiration of the patta from Government defendant 1 is a tenant-on-sufferance holding the lands for himself as a lessee from Government. The reason why the point as originally framed is given up is probably that it has been found by all the Courts as a fact that in the lease the real lessee was Baghunatb, the father of defendants 1 and 2, and that defendant 1, appellant 1, has throughout been treated as a lessee from Government. It was never his case anywhere that he was a trespasser as against Government. That point, therefore, as put in the argument before Shingne, J., has not been taken now. But it was contended that in the interval between the expiry of the patta of 1883 and the grant of the new lease, the possession of defendant 1 was not that of a lessee from Government. That argument is entirely untenable. There was, as a matter of fact, no such interval. The exact date when the patta of 1883 expired is not on the record, but the order of Government for renewing the lease was in 1912. The revenue inquiry began in 1913 and the order giving out the lands on occupancy tenure to the actual occupant was issued in 1914. There was no question of defendant 1 having been in possession during the period in any other capacity than that of a lessee-from Government. On the contrary, in the proceedings before the Revenue-Officer (Ex. 52, p. 26) in the column headed “the right claimed, viz.: whether as lessee, alienee or sub-sharer of tenant” defendant 1, Dharma Raghunath is shown as the “heir of the lessee.” No question therefore of defendant 1 deriving any title other than as-lessee from Government arises. This disposes of the first point even as it is put now.

    3. The second point argued by the learned counsel for the appellant is this After the expiry of the kabuliyat of 1897, the possession of defendant 1 was adverse to defendant 2. That kabuliyat was passed by defendant 1 to defendant 2 for ten years expiring in 1907 It is contended that when the kabuliyat expired, inasmuch as under it defendant 1 was bound to give possession to defendant 2 his brother, or the plaintiff his alienee, as he failed to do so, his possession from 1907 was adverse to Atmaram, defendant 2, and the plaintiff who claims under defendant 2. Now till 1897, defendant 2 was in actual occupation along with defendant 1. In 1897, defendant 1 was put into possession of defendant 2's share on payment of Rs. 90 a year by a kabuliyat, Ex. 73 at p. 34. The parties were brothers and cosharers each holding a half-share in the property. By that rent-note defendant 1 contracted to hold the property for ten years and thereafter to make over possession of the joint share of defendant 2 to him. This is not an ordinary case between a landlord and a tenant, but between two cosharers one of whom hands over his share of the property to his brother. Although the relation of landlord and tenant between defendant 1 and defendant 2 ceased Page: 221from 1907, their relation as oo-owners of the property in question continued, and it has not been shown that there was any adverse assertion of title by defendant 1, by which defendant 2 was ousted.

    4. The article applicable in such a case would be Article 144 as laid down in Ichalal v. Nago AIR 1921 Bom 462 , 60 IC 589. But in any case 12 years' period of limitation did not expire before the plaintiff, who represents the, interest of defendant 2, filed a suit in 1912. Now before that suit was filed the original lease or patta of 1883, from Government expired and a fresh grant had been made by Government in favour of defendant 1, and the High Court pointed out in its judgment that it was not possible in that case to determine the rights of the parties which arose under the new lease. No question therefore of adverse possession arises. The 12 years' adverse possession did not become perfect until 1919. The plaintiff filed a suit in 1912 and in the following years the possession of the parties as regards the lands is altogether changed by the lease originally granted by Government having expired and a new grant being made, and the new lease by Government is expressly made subject to the decision of the civil Court. Therefore I agree with the view of Shingne, J., in para. 9 of his judgment that this is not a case of an ordinary landlord and tenant but a case between co-owners and that there is no section of the title of Atmaram being axtinguished by adverse possession.

    5. Then as regards the third contention, which is the main contention taken in this case, it is contended that Section 90 of the Trusts Act, does not apply because defendant 1 is not a trustee for his co-sharer and that, he is, at the most, a tanant-in-common of the suit lands. I have already dealt with the contention which I do not think is very seriously raised, that defendant 1 was not a tenant-in-common with defendant 2 at the data of the new grant in 1914. Until the expiry of the lease granted by Government undoubtedly he was a tenant-in-common or a joint tenant according as the parties were joint or separate of the lands which had been leased to the family by Government. It in quite clear from the Government Resolution, Ex. 136, that the intention of Government was to give preference in granting occupancy rights to the lessees who were already in possession. We find in that resolution that the Collector was authorized to give out the sheri lands on the restricted tenure or on the full survey tenure to such lessees, alienee, or their sub-sharers, as actually cultivate the lands, and I have already pointed out that in the revenue proceedings at p. 26 that defendant 1, the present appellant, claims as “heir of the lessee” and in so described in the papers.

    6. Now on this point it is necessary to give a little history which will be found in extenso in the judgment of Shingne, J. It appears that there was partition between defendant 1 and defendant 2. There was also a suit pending, by the plaintiff against the defendants, in 1902, in which a compromise was arrived at and the compromise was that a partition should be effected of the family property at Varad and Kalse and one of the terms was that the property in suit now which is at Kalse should be given to defendant 1 and defendant 2's share of the Kalse property should be placed in the plaintiff's possession as the auction-purchaser on the expiry of the lease. That compromise application is Ex. 79 at p. 36. In that it is distinctly mentioned:

    “The property mentioned in the rent-note is to be continued with defendant 1 for the period mentioned therein on payment of fixed rent as given in the same. After the expiry of the fixed period the possesaion of Atmram'a share is to be given to the plaintiff as Atmaram's auction-purchaser.”

    7. In addition to this there were two partition deeds executed. One is Ex. 65 and the other Ex. 102. Ex. 65 refers to the property at Varad which went to defendant 2 and Ex. 102 refers to the property in dispute. Now we are not directly concerned with Ex. 65. But Ex. 102, executed by Atmaram, defendant 2, says at p. 45:

    “Thikan Java (that is the land in diapute) and his house (half share) is continuing with Keshav Gunaji Kondkar (present plaintiff)”

    and then he goes on to say that

    “there are houses and a shed (with which we are not concerned) and they have been given to defendant 1.”

    8. I read this as a clear indication that defendant 2 did not give up his half share in the lands but that they continued to be with his mortgagee, the Page: 222present plaintiff. Now at the inquiry which was held before the revenue authorities in 1914, when the question of giving out the lands on ordinary occupancy tenure arose, the claimants who appeared were the present defendant 1, the present plaintiff and two other persons. Another person who was an alienee from another member of the family claimed the lands. Defendant 2 did not appear because he had mortgaged his whole interest in the land to the plaintiff. Now in the course of the inquiry the present defendant 1 produced the deed Ex. 65 which refers to Varad property, but did not produce Ex. 102 which refers to this property. Ex. 102 shows that defendant 2 has still an interest in it. He also made a statement Ex. 77 before the District Deputy Collector in which he says as follows:

    “In this partition deed the sheri property on 30 years' lease situated at Kalse, Thikan Juve by name, standing in my name as vahiwatdar, is not partitioned, and according to this partition deed the parties have taken possession. Now Atmaram Raghnnath has no right over the property standing in the name of Dharma Raghunath. Similarly Dharma Raghnnath has no interest in the property of Atmaram. The land at Raise being Sheri land, Atmaram did not want it and therefore it as not partitioned.”

    9. Defendant 1 suppressed the fact that the right of defendant 2 in this property was still existing, and the statement that defendant 2 did not want the property is, so far as I can see from the record, a falsehood. Acting on this information the revenue authorities brushed aside the claim of the plaintiff, alienee of Atmaram, and gave the lands to defendant 1. Under Section 90 of the Trusts Act:

    “Where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained.…”

    10. Now it has been contended by the learned counsel for the appellant that we should be guided in the case by the English cases which were quoted before Shingne, J., Kennedy v. De Trafford (1897) AC 180 , 66 LJ Ch 413 , 45 WR 671 , 76 LT 427 and Biss, In re: Biss v. Biss (1903) 2 Ch 40 , 72 LJ Ch 473 , 51 WR 504 , 88 LT 403. But it has been held on several occasions by the Calcutta High Court that in this country we are to be guided by the Trusts Act, and not by the English cases on the subject and the same cases have been quoted here that were quoted before Shingne, J., viz., Faizur Rahman v. Maimuna Khatum (1913) 20 IC 510 in which Doorga Singh v. Sheo Pershad Singh (1889) 16 Cal 194 is referred to. At that time it was not dissented from although it was questioned. Later on the same, Judge, Sir Lawrence Jenkins, who was then a member of the Privy Council, in the case of Deonandan Prashad v. Janki Singh AIR 1916 PC 227 , 39 IC 346 , 44 IA 30 , 44 Cal 573 (PC) has disapproved the ruling in Doorga Singh v. Sheo Pershad Singh (1889) 16 Cal 194 and has approved the ruling in Faizur Rahman v. Maimuna Khatum (1913) 20 IC 510, and there are certain remarks at p. 34 (of 44 I.A) which are very apposite to the present case. While referring to Doorga Singh v. Sheo Pershad Singh (1889) 16 Cal 194, the judgment says (p. 34 of 44 I.A):

    “It failed to pay due regard to the relative position of co-owner in respect of the payment of revenue and to the need of demanding from each such measure of candid dealing and good faith as would ensure that a sharer would not be tempted to make a deliberate default with a view to ousting his cosharers and appropriating to himself their common property.”

    11. The same remarks, I think, will apply to the case of a co-owner of the occupancy tenancy, who was examined in the revenue inquiry and who has concealed the fact of the existence of a certain document showing defendant 2's ownership of the lands in suit as still subsisting and was prepared to make a false statement that the other co-owner had abandoned his claim to this land. Now it has been argued by the learned counsel for the appellant in his reply that the plaintiff was a party to the revenue inquiry and that he was aware of these facts and it was open to him to put his case before the revenue authorities by producing Ex. 102 or by producing Atmaram and so establishing his case. But it is no answer, in my opinion, to say that because one party does not put forward his case as well as he should have done before the Court therefore the other party is justified in making a false statement and suppressing a document. It was practically conceded by Page: 223the learned counsel for the appellant that if there was a case of a fraud the ruling in Doorga Singh v. Sheo Pershad Singh (1889) 16 Cal 194 operates, and it seems that there has been a fraud in this case and that view has been upheld by Shingne, J., in para. 19 of his judgment where he holds:

    “All these facts and circumstances are, in my opinion, sufficient to prove that defendant 1 by availing himself of his position as a co-owner in actual possession gained the occupancy right relating to the suit lands in his own name to the derogation of the rights of the plaintiff and defendant 2 and must be held to hold the same for the benefit, of himself, and the plaintiff and defendant 2.”

    12. It has been argued that Government had a perfect right to give the lands to whom they liked and therefore it must be taken that Government decided to give them to defendant 1 and defendant 2, or rather his representative, the alienee, plaintiff, has no ground for objecting to the choice which Government had made. But it will be seen from the Government Resolution to which I have already referred and from the orders of the revenue officers in the revenue inquiry that the lands were given to defendant 1 because he was in exclusive occupation. The reason why he was in occupation was that his brother, defendant 2, had executed a kabuliyat in his favour and under that kabuliyat he had undertaken to restore possession to defendant 2 or his representative, the plaintiff, on the expiry of the lease in 1907, but he refused to do so in spite of the compromise referred to above. And owing to the circumstances alluded to above and the approaching expiry of the Government lease, the question between him and Atmaram had not been settled, and therefore he was not entitled to exclusive possession at the time when the lands were granted to him as considered by the revenue authorities. In these circumstances there is no doubt that defendants 1 and 2 at the date of the grant by Government to defendant 1 in 1914 were co-owners of these lands and that defendant 1 made use of his possession to put forward his own claim and by suppressing evidence to cause the claim of the plaintiff as the representative of defendant 2 to be overlooked in the revenue proceedings.

    13. It is stated by the Mamlatdar (at p. 27 of the paper book) that the kabuliyat, etc., leading to the establishment of Atmaram's share were all purposely framed documents and that they were not true. That is a finding presumably arrived at on an incorrect representation of the facts made by defendant 1 to the revenue authorities and is incorrect. In these circumstances, I have not the least doubt that the view by Shingne, J., is right that Section 90 of the Trusts Act, operates inasmuch as the present appellant has not got the beneficial interest therein and must be held to hold the same for the benefit of the plaintiff having such interest.

    14. One more point has been taken, and that is that the lower Court had given a direction enabling defendant 1 to move Government not to recognize the plaintiff or defendant 2. That order was deleted by Shingne, J., and in view of the fact that the orders of the revenue authorities were expressly made subject to the decision of the civil Court on the rights of the order claimants, including, the present plaintiff, and those rights have now been decided, I fail to see why the Court should give assistance to defendant 1 in further re-agitating the matter before the revenue authorities. I agree therefore that clause should be deleted. The result is that I agree with the view taken by Shingne, J., and am of opinion that the appeal should be dismissed with costs.

    15. Wadia, J.:— I agree. It is, in my opinion, clear, looking to the terms of the Government Resolution of 1912, under which a fresh grant to the appellant was made in 1914, that the lands were granted to him as the heir of the original lessee and because he was in possession. The contention now raised that in 1913 the possession of appellant 1 was that of a trespasser and not that of a lessee from Government is one, which, in my opinion, is untenable and in entire contradiction to defendant 1's previous statements. The proceedings before the revenue authorities in 1913 show that defendant 1 claimed the lands then on the ground that he was the heir of the original lessee. Reading the order of the Deputy-Colleetor it seems to me that if defendant 1 had then contended that he claimed the land not because he was the representative of the family of the original lessee but because he was in possession Page: 224adversely to the members of the family as a trespasser, he would never have got the grant. The Resolution of Government authorized the Collector to give out the sheri lands to such lessees, alienees or their sub-sharers as actually cultivated the land, and to tenants who were found to have permanent rights of tenancy. That they did not contemplate that the fact of actual possession should be the sole consideration to be taken into account in making the grant is clear from the second paragraph of the Resolution which provided that:

    “Where the land is not in the actual cultivation and occupation of any of the persons—lessees, alienees or their sub-sharers—the survey occupancy should be given to the person whether lessee, alienee, cosharer, sub-sharer or permanent tenant from whom the tenant at will holds the lands and to whom he pays the rent.”

    16. There is therefore no doubt in my mind that defendant 1 got the lands because he claimed to be the heir of the original lessee and to be solely in possession. From the papers it appears that up to 1897 the defendant Atmaram through whom the plaintiff claims, was actually in possession of a half share in the lands. In 1897 he leased this half share to defendant 2. Subsequent to this lease he mortgaged his share to the plaintiff in 1899, and in 1901 the plaintiff acquired a half of this mortgaged portion by purchase. Till the termination of the lease in 1907 the plaintiff had been recovering the rent for his half share from defendant 1 under the terms of the compromise application Ex. 79 to which defendant 1 was a party and which was put in suit No. 66 of 1902, which had been filed by the plaintiff against defendant 1 for arrears of rent. Defendant 1 had agreed to hand over possession of Atmaram's half share to the plaintiff as Atmaram's auction-purchaser. In the partition deed Ex. 102, which was passed a fortnight after the compromise application, and in accordance with its terms, it was stated that Atmaram's share in the suit lands was with the plaintiff. On the expiry of the period of the lease in 1907 defendant 1 refused to hand over possession. But the position of the plaintiff is against defendant 1 was not merely that of a landlord but also that of a co-owner; and though from 1907 to 1913 defendant 1 was no longer a tenant of the plaintiff, and was in adverse possession, he continued to be a co-owner with the plaintiff. There is no evidence to show that his possession as a co-owner during this period was adverse. In any case, even if the possession was adverse, it had not ripened into a full title. In 1913 therefore the plaintiff and defendant 1 appeared before the revenue authorities as co-owners.

    17. The Deputy Collector's order shows that the grant of the lands to defendant 1 in 1914 was not based solely on the ground that he happened to be in actual possession. An inquiry was made as to the rights of the claimants including the plaintiff, and the plaintiff's claim appears to have been rejected on the ground that he had not established his title, and was not in actual possession. But the appellant's possession at that time of the share of the plaintiff was a wrongful one and it does not appear that he anywhere claimed that in respect of the lease under which he had held the land from the plaintiff for ten years, his possession as against the plaintiff was a rightful one. Judging by the recommendations of the Mamlatdar and the order finally passed by the Deputy Collector, it would appear that defendant 1 repudiated the lease and suggested that it was a bogus document created only to support the plaintiff's claim. Having thus remained in wrongful possession of the land and having himself agreed that suit No. 228 of 1912 which the plaintiff had filed to get possession should be kept pending the decision of the revenue authorities, he then contended before the revenue authorities that the plaintiff had no title to the lands at all, and in support of this contention he clearly put forward a fraudulent claim. His statement before the revenue authorities that the suit lands were not included in the partition between him and his brother Atmaram in 1903 because Atmaram did not want any share in these lands, was clearly false. Ex. 10:2, which was passed on the same day as the partition deed, Ex. 65, which defendant 1 produced before the revenue authorities, shows that the propecty at Kalse, that is the suit property, was included in the partition between the two brothers. In that partition deed the house standing on the suit lands was given to defendant 1, while the half Page: 225share of Atmaram in the suit lands was mentioned as “continuing with Keshav Gunaji Kondkar.”

    18. The order of the Deputy Collector shows clearly that one of the principal grounds which led to the decision in favour of defendant 1 was the fact that in the partition deed no mention was made of this sheri land.

    19. Defendant 1, to whom Ex. 102 had been passed, and in whose possession it was, had not produced it also before the revenue authorities. It is clear that the order of the Deputy Collector in defendant 1's favour was due to defendant 1's deliberate suppression of the partition deed Ex. 102, and to his false statement that Atmaram had refused his share in the suit lands. The facts that the plaintiff was also present before the revenue authorities to put forward his own case does not justify the defendant's action in deliberately suppressing the documentary evidence which was in his possession, and deliberately making a false statement. It was a deliberate fraud practised by him on the revenue; authorities. His possession at the time I as against the plaintiff was that of a no owner and it is clear on the facts that as ja co-owner he gained an advantage in derogation of the rights of the other co-owner, the plaintiff, and he must, therefore be considered to hold the grant which he obtained from the revenue authorities for the benefit of the plaintiff. The case is clearly governed by Sections 90 and 94 of the Trusts Act. The order of the Deputy Collector, dated 21th March 1914, made it clear that the grant by the revenue authorities to defendant 1 was without prejudice to any rights which the plaintiff might establish in the civil Court. The revenue authorities did not think it necessary that they should be given a further opportunity of reconsidering the position after the civil litigation had been decided. In the circumstances I consider that the deletion of Cl. 3-A from the decree of the trial Court is justified. I agree that the appeal should be dismissed with costs.

    R.K

    20. Appeal dismissed.

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    Dharma Raghunath Desai v. Keshav Gunajee Kondkar
    (Oct 5, 1933)