Oldfield, J.:— The main facts of this case can be stated shortly. Plaintiff obtained a decree against defendants 2, 3 and 4, and after attaching money, alleged to belong to them and to be in defendant 1's possession was appointed receiver in his own execution and in that capacity is now attempting to recover from defendant 1, the other defendants being impleaded as persons interested. The defence of defendant 1, the appellant before us is that (1) the money is a sum due to defendants 2, 8 and 4, and one Rajappa Mudali, the right to collect which he acquired in a legal manner (2) if his own title is bad some at least of the money has vested in persons other than plaintiff those who are administering defendants 2 and 3's estates in insolvency. The lower Appellate Court's judgment is mainly occupied with the second of these contentions. The facts relied on are that defendant 2 on 18th March 1911 and defendant 3 on 7th October 1911 became insolvents the one in Tinnevelly and the other in Madura and their assets therefore vested for the benefit of all their creditors before plaintiff attached this portion of them on 15th July 1914. The District Munsif's finding that this was so in the case of defendant 2 has not been attacked. He and the lower appellate Court found otherwise in the case of defendant 3, because he was adjudicated insolvent by the Official Receiver, Madura and no distinct vesting order such as Official Receiver of Trichinopoly v. Somasundaram Chettiar(1) requires having been passed the debtor's estate is still available to satisfy individual claims. But this is unsustainable.
2. The authority cited may entail that the estate did not in the absence of a distinct order vest in the Official Receiver. The fact which the lower Courts overlooked remains that in any case it vested under Section 16(1) of the Prov. Insol. Act, in the Court and became divisible among the creditors from the date of the petition and that under S. 16(2) after the date of the adjudication which related back to that of the petition no creditor had any remedy against it. The cases of defendants 2 and 3, are therefore similar. Plaintiff can execute his decree only by proving in their insolvencies and on this ground at least his claim to what is alleged to be in part their money in defendant 1's hands must fail. The lower appellate Court has next held against defendant 1's right to that money on the special ground that he obtained it in proceedings which could not bind them or defendant 4. It consists in a debt which he has collected in virtue of his purchase at a sale held by the Official Receiver, Tinnevelly, in the administration of the estate of Rajappa Mudali above referred to and of an assignment to him, Ex. 1 by defendant 2. That sale is represented by defendant 1 as being of the debts due to a firm composed of Rajappa and defendants' 2, 3 and 4. But, as Ex. B, the auction list, shows, what was sold was only
“the right to arrears due to Rajappa Mudali, insolvent petitioner, as due under the day book and ledger of R.M shop,”
3. R.M.N being the firm above referred to. Ex. K, the sale-dead by the official receiver to defendant 1, is no doubt for
“the debts due to the joint shop conducted under the style of R.M by Rajappa Mudali.”
4. But the insolvency was, it is not disputed, that of Rajappa, not the firm; and it is sufficiently clear that only his share, not defendants' 2, 3 and 4, purported to be or could have been sold. How the Official Receiver could sell one partner's share of the debts due to the firm, instead of following the normal course and selling his share in its assets, as it might; be ascertained, is not clear; but this irregularity appears to have gone unnoticed until the hearing in this Court and on the view I take would not affect the conclusion. The sale in these circumstances giving no title to any portion of the debts except Rajappa's, defendant 1, has relied also on Ex. 1, the assignment of 2nd and 3rd defendants' shares, which he obtained shortly after. It is, I agree with the lower Court, ineffectual as regards defendant 3's share because Ex. A, his power of attorney in defendant 2's favour, authorized the latter only to collect debts due to the shop, not to realize their value or any part of it by selling them. The result so far is that defendant 1's right to the debts has been established only in respect of defendant 2's and Rajappa's shares, but that, as already found, plaintiff cannot be heard to deny it in respect of the former's. The question is next of the general objection, which has been made to his claim to the share of defendant 4. That objection would, it may be observed, be available against his claim to the other shares also. Before referring to this objection, I observe that plaintiff's decree, which has been shown us during the hearing, was obtained against defendants 2, 3 and 4, Rajappa not being a party. It may be permissible in India, as it is in England, [Hawkins v. Ramsbottom(2)] to sue only the solvent members of a firm, when a decree is sought against it. But there is nothing in the decree, except the use of the Vilasam E.M.N before each defendant's name, and that is insufficient, to indicate that relief was sought or given against the firm's assets, not the defendants individually, and on such a decree plaintiff's proper course was after exhausting their separate property to proceed against their shares in those assets after they had been ascertained in proper dissolution proceedings, if necessary at his instance in defendants' insolvencies or otherwise. Again, however this point has not been taken at any stage and, I, therefore turn to the general argument already referred to.
5. It may for the present purpose be considered only as regards defendant 4, and it is that the suit will not lie, because plaintiff cannot recover from defendant 1 money which he received owing to a mistake from the debtors of defendant 4, plaintiff's debtor. Certainly defendant 1 had no right to receive the money. But there is no finding that in doing so, he acted otherwise than honestly and in bona fide mistake as to his right. When or how he became aware of the invalidity of his title, as based on his purchase at the Official Receiver's sale or his assignment (in the case of defendant 3), if he did become aware before collecting the money, has not been ascertained; but, the plaint containing no suggestion of fraud or collusion between him and the Official Receiver or any person concerned, no presumption can be made against him and then, as plaintiff's position can be no better than that of his debtors, the question simplified is, whether defendant 4 or either of the others could recover from defendant 1 what he has received mistakenly as due to them.
6. This question in terms of English law is, whether in the circumstances an action would lie against defendant 1 for money had and received for their use; that is, for the use of plaintiff. The scope of this form of action and the considerations which led to its extension are discussed fully in Sinclair v. Brougham(3), although it is possible that the former has never been defined exhaustively. Plaintiff's argument hag accordingly been that it comprehends all claims arising, in the words of Blackstone's definition (Comm. 3, 162), ex aequo et bono and “the justice of the case.”
7. Defendant 1 contends, and I shall hold, that one test of its applicability to such facts, as those before us, is afforded by the existence of privity between the plaintiff and defendant, a test which those facts do not satisfy. For it is not suggested that plaintiff or defendants 2, 3 and 4 bad any knowledge of or connexion with the payment to defendant 1. No doubt there are, as is to be expected in the circumstances referred to in Sinclair v. Brougham, decisions, in which this test was not applied clearly. But, so far as they cannot be distinguished, they must be regarded as discredited by the mass of cases, in which the general rule was enunciated. To refer to cases, in which the question arose, as it arises here, in connexion with the recovery of payments mistakenly made to the defendant, not by the plaintiff directly, but by a third person alleged to be liable to the plaintiff and in which there was no direct or obvious fiduciary relation between the parties, reliance has been placed first on Litt v. Martindale(4) and it is certainly in plaintiff's favour. But, although the objection taken by the defendant was that money had and received would not lie, the judgments (which are laconic) indicate that the action was treated as founded on fraud, of which there is no question in the case before us. In Littlewood v. Williams(5) the point of privity was not dealt with distinctly, but would appear to have been decided in the plaintiff's favour on the ground of their previous relation with the defendants and their servant and his, from whom he received the money, the conclusion being that it was the plaintiff's money in his hands. These English cases, therefore the strongest on plaintiff's side, in no way detract from the insistence on the necessity for evidence of privity in others, to which I turn. In Rogers v. Kelly(6) the defendant received money due on plaintiff's bill from his bankers owing to a clerk confusing a bill which had been provided for with one which had not been; and the action was dismissed on the ground that whatever plaintiff's position as against his bankers or theirs against defendant, there was no privity between the parties before the Court and so also in Chambers v. Miller(7) and Aiken v. Short(8) in which it was regarded as material that the mistake owing to which the defendant received the money was one, with which he had nothing to do, since it was between the person who paid him, and the plaintiff. In these cases defendant was no doubt entitled to the money, though not from that person. But that was not so in Rogers v. Ingham(9) a suit between two persons claiming to be legatees of whom the defendant had been paid by the executor's mistake; and, though the action for money had and received was not in question, the principle now under discussion was applied, James, L.J, observing that relief against mistake had never been given in the case of a simple money demand between the parties, there being no fiduciary, relation between them and no equity to supervene by reason of the conduct of either.
8. So also in Mackersy v. Ramsays(10), where it was held that, because privity existed between plaintiff and defendant, his banker who had undertaken to collect the amount of his bill and had agreed to credit him with the amount received, the latter was liable to him and that, because privity did not exist between him and the banker's agents, whose insolvency caused loss of the money, those agents were not and in Prince v. Oriental Bank Corporation(11), in which Mackersy v. Ramsays was approved, the absence of privity again afforded a ground of decision. It is to be observed that the language in Sincliar v. Brougham, on which plaintiff's claim to a liberal view of the action for money had and received mainly rests, was used rather of its early development than of its scope as settled at the present time by authority. It is no doubt still to be regarded, as it was originally, as based on an implied or fictional promise (see the judgments of Lords Haldane and Dunedin). But Sinclar v. Brougham is completely in accordance with the great body of other authority in negativing the possibility of such a promise being deduced, as plaintiff here would deduce it from the aequum et bonum, as it may appeal to the sympathy of the Court in the particular case, or from circumstances, in which the defendant having no privity with the plaintiff, when the money was received, need not be supposed to have given and had no duty to give any promise. Here defendant 1 was clearly under no such duty. For he collected the debts due to defendant 4 and others without reference to them and was not enabled to do so by reason of any fiduciary relation with them or in consequence of any fact independent of the willingness of their debtors to pay him.
9. The conditions, on which a plaintiff can sue for money received to his use, have been discussed in India more often with reference to the applicability of Article 62, Sch. 1, Lim. Act, than to the existence of a right of action; and when the latter has been in question, the issue of privity has seldom arisen or been raised. The cases, therefore, are of little assistance. Plaintiff, however, relies on Syud Lootf Ali Khan v. Musammit Afzuloonissa Begum(12) and Tellis v. Saldanha(13), the latter being explained in Vaidyanath Aiyar v. Aiyasamy Aiyar(14). But in all these the parties were in the relation of joint tenants or co-owners and the principle of Section 90 of the Trusts' Act, was applicable, the defendants having in each case received the money sued for as representing the plaintiffs and themselves; and a fiduciary relation was, therefore, in question. Sankunni Menon v. Govindan Menon(15) was no doubt decided with reference to Black-stone definition of the action and a very general statement that the defendant's obligation arose ex aequo et bono. But the suit was to recover money, for which no doubt defendant, a member of a tarwad and plaintiff had given a pro-note, apparently by way of acknowledgment, to the karnavan; and, when the money was returned from the Government deposit, for which defendant originally received it, his receipt of it was apparently regarded as part of the transaction, into which he had entered with the karnavan's concurrence for the tarwad's benefit. The decision, therefore, might, it would seem, have been based on a ground narrower than the one adopted and consistent with the conclusion already reached on English authority.
10. In it reference was made to Mahomed Wahib v. Mahomed Ameer(16), a case, in which the fiduciary relation between the parties, co-sharers, was clear and in which therefore, nothing turned on the reference it contains to Litt v. Martindale, already cited, as an action for money had and received. This reference in fact merely reproduced that made in another case relied on by plaintiff, Raghumoni Audhikary v. Nilmoni Singh Deo(17), in which Litt v. Martindale, Neate v. Harding(18), and Holt v. Ely(19) were referred to. But the claim in the two last mentioned cases was for money taken wrongfully from the plaintiff, directly in the one and from his agent in the other; and the question of privity was, therefore, not raised in them. It has been pointed out that it was not discussed in the first mentioned; and in Raghumoni Audhikary v. Nilmoni Singh Deo, the claim being for money obtained fraudulently by the defendant from the Collector, who received it as plaintiff's deposit and apparently was holding it for him, it would probably have been useless to raise it. On the other hand, in Ramaswami Aiyar v. Kanthayyan(20), also a case of withdrawal of money from a collector are but not one in which it was held as a deposit or withdrawn by fraud although the relevancy of the reference to Kendal v. Wood(21) is not clear, the suit was held unsustainable, on the ground that the payment by the Collector and the receipt by defendants were bona fide and without notice of plaintiff's preferential right and Harihar Missir v. Syed Mohammad(22) was a case, in which evidence of privity was insisted on and the suit was held to be governed by Article 62 only because that evident was sufficient. There is accordingly no reason for holding that the principle accepted in England has been rejected in this country. We must therefore decide that plaintiff's suit does not lie for any of the money claimed.
11. This conclusion renders it unnecessary to deal with the argument of Mr. A. Krishnaswamy Aiyar for plaintiff relating to defendant 4's share of the amount received by defendant 1 and based on Lindley on Partnership, Edn. 6, p. 692, or with the memorandum of objections. The result is that the appeal is allowed and the suit dismissed, plaintiff to pay defendant 1's costs throughout. The other defendants have not been made parties to the appeal. The memorandum of objections is dismissed with costs.
Sadasiva Aiyar, J.:— The material facts may be shortly stated thus;—The Official Receiver of the Tinnevelly District sold by public auction the debts due to a partnership of four persons who carried on business in Tutioorin. The principal partner, Rajappa Madali, was adjudicated an insolvent with effect from 5th December 1908. The partnership business itself had been closed in February 1908 (see Ex. 1). I think it may be taken that the partnership had become dissolved between February 1908 when the business was closed in December 1908 when Rajappa was declared insolvent, except, of course, that the rights and obligation of the partners continued in all things necessary for winding up the business of the partnership. (Section 263 of the Contract Act.) When Rajappa Mudali was adjudicated an insolvent, he was entitled only to ¼th share in the assets of the partnership, which assets principally consisted of the out standings due to the partnership by its debtors. The Official Receiver seems to have put up for auction sale the whole of the outstandings due to the partnership and defendant 1 became the purchaser thereof in October 1910 (see Ex. K) for Rs. 250. I think it is clear that defendant 1 (the appellant before us) never intended to purchase only Rajappa Mudali's ¼th share in the outstandings and it follows that he never considered himself as a co-sharer with the other three partners of Rajappa Mudali, (namely, the defendants 2, 3 and 4) of the right to recover those outstandings. He never recognized defendant 4 as having been a partner at all, and defendant 4 himself always repudiated that he was a partner, though the finding of the lower Courts (which is binding on us in second appeal) is that he was a partner.
12. Defendant 2 in November 1910 (within three weeks of defendant 1's purchase) admitted in Ex. 1 that the whole of the outstandings belonged to defendant 1 by his purchase at the Receiver's sale, and on receipt of a consideration released all his (defendant 2's) right in, or connexion with, the outstandings in favour of defendant 1. Thus defendant 1 became legally entitled at least to half share in those outstandings, whether his claim to the whole of the outstandings was well founded or not.
13. The plaintiff got a decree for money against defendants 2 to 4 in a Small Cause Suit of 1910. Defendant 1 persuaded a debtor of the firm to agree to pay about Rs. 1,650 to him in compromise of a suit brought by him against that debtor and afterwards received Rs. 450 more then three years before this suit and again Rs. 1,200 in 1912 within three years before this suit from that debtor. The plaintiff, in execution of his Small Cause decree against defendants 2 to 4, attached the of this amount of Rs. 1,650 in July 1914, though meanwhile defendant 2 had relinquished his rights to defendant 1 in November 1910 and had even been declared insolvent in the Madura District Court with effect from March 1911. Defendant 3 also had been adjudicated insolvent in the same Court with effect from October 1911. Thus it is clear that the plaintiff's attachment in 1914 (assuming that defendants 2 and 3 continued to have each 1/4th share in the outstandings of the firm notwithstanding the Tinnevelly Receiver's auction sale of the whole to defendant 1 in October 1910) was wholly ineffectual so far as defendants 2 and 3's shares were concerned, as the said shares had become vested in defendant 1 and the Official Receiver respectively or in the Official? Receiver of Madura alone before the attachment of July 1914.
14. The plaintiff brought the present suit in April 1915 for recovery of ¾ths of Rs. 1,650 (Rs. 1,237-8-0) recovered by defendant 1 in 1911–1912 from the partner-ship-debtor. (The plaintiff had been appointed receiver in the suit in which the shares of defendants 2 to 4 were attached in 1914.) The suit was brought on the allegation that ¾ths share of the money so recovered by defendant 1 was money had and received by defendant 1 for the use of defendants 2 to 4. The lower Courts have given a decree in favour of the plaintiff for half of Rs. 1,200 (that is, Rs. 600) which defendant 1 collected from the partnership-debtor in 1912 within three years of the suit, treating that Rs. 600 as the half share of defendants 3 and 4 received by defendant 1 for the use of defendants 3 and 4, I shall at once dispose of one of the points that arise in the case by stating that the plaintiff's attachment of defendant 3's alleged 1/4th share in the Rs. 1,200 is legally ineffective as that share, assuming it to have existed in 1911, had become vested in the official receiver of Madura who was not a party to the plaintiff's execution proceedings of 1914. The second appeal has therefore to be allowed in any event to the extent of half the amount decreed in plaintiff's (respondent's) favour by the lower Courts. The only question therefore remaining, is whether defendant 1 received Rs. 300, being the 1/4th share (of the Rs. 1200) due to defendant 4, for the use of defendant 4 and whether defendant 1 is therefore liable to pay over that Rs. 300 with interest from 23rd April 1915 to the plaintiff. The question of law involved must be admitted to be one of very great difficulty. Suppose A and B are joint creditors of C, who owes them Rs. 100. D, a stranger, purchases the whole debt from A, believing that A was entitled to transfer the whole debt of Rs. 100 to D. D then is paid by C, the debtor, the whole of the Rs. 100. Can B, the co-creditor, rent Rs. 50 of the Rs. 100 as having been received by D for B's use and sue be recover it from D? (It will be seen that I have tried in the above illustration to eliminate as far as possible unnecessary incidents appearing in the facts of the present case but not bearing on the question of law.) Now it is clear that if A himself received the whole of the Rs. 100 from the debtor C, B, his co-creditor, could treat Rs. 50 as money had and received by A for B and sue A for it. The question is whether when D got the transfer of the debt from A, believing that D got the title to it free from any claim to any portion of it on the part of anybody else, and when D recovered the whole of the money from the debtor C on that footing, D could be treated as having received half of it on behalf of B. In Sinclair v. Brougham (House of Lords), Lord Chancellor Haldane, Lord Dunedin and Lord Sumner have considered the nature of the action for money had and received. The Lord Chancellor says (see pp. 415 to 417 of 1914 A.C):
‘Broadly speaking, so far as proceedings in personam are concerned, the common law of England recognizes only actions of two classes, those founded on contract and those founded on tort. When it speaks of actions arising quasi ex contractu, it refers merely to a class of actions in theory based on a contract which is imputed to the defendant by a fiction of law. The action (for money had and received) was in principle one which rested on a promise to pay, either actual or imputed by law…. Lord Mansfield explained…. ‘If the defendant be under an obligation, from the ties of natural justice, to refund, the law implies a debt, and gives this action founded on the equity of the plaintiff's case, as it were upon a contract’…. The form of the common indebitatus asumpsit count….was a form of a claim which had been very gradually evolved. The researches of recent writers appear to ma to have placed its origin in its true light. The basis of actions of this kind was originally tort, a writ having been framed in consimili casu under the provisions of Ch. 24 of the Statute of Westminster (13 Edw. 1)
By degrees, out of this action on the case and as one of its forms, a new form which was seen to diverge wholly form tort, the action of assumpsit arose…. Holt, C.J, is reported to have said: ‘That the notion of promises in law was a metaphysical notion for the law makes no promise, but where there is a promise of the party.’ Yet the observation of Holt, C.J, notwithstanding, a little later on this ‘metaphysical notion’ became firmly established. For it was just the fiction of attributing a promise in a multitude of cases where in reality there was none, which finally gave the action its comprehensive range and made it available even where no fact importing or implying privity of contract could be proved. The history of the action of the assumpsit has been described by a writer to whom lawyers and historians alike owe much, the late Professor Ames of Harvard University, in language which shows how easily the fiction of a promise grew into part of the law. Speaking of the action of assumpsit generally he says: ‘In its origin an action of tort, it was soon transformed into an action of contract, becoming afterwards a remedy where there was neither tort nor contract. Based at first only upon an express promise, it was afterwards supported upon an implied promise, and even upon a fictitious promise. Introduced as a special manifestation of the action on the case, it soon acquired the dignity of a distinct form of action, which superseded debt, became concurrent with account, with case upon a bailment, a warranty, and bills of exchange, and competed with equity in the case of the essentially equitable quasi contracts growing out of the principle of unjust enrichment.”
15. Lord Dunedin says at pp. 431 to 433 (of 1914 A.C):
“The familiar case is the paying of money by A to B under the mistaken impression in fact that a debt was due, when in truth there was no debt due. It was to fit cases of this sort that the common law evolved the action for money had and received. I think one cannot help feeling that this action was truly the putting of an equitable doctrine under a legal form. I am using the word equitable in a non-technical sense, for I am not suggesting for a moment that the action was borrowed from technical equity. My noble and learned friend Lord Sumner in his opinion, which I have had the advantage of seeing, has conclusively shown that it was not. But being a legal form, it does not admit in spite of Lord Mansfield's dictum that such an action was very beneficial and to be encouraged, of being stretched beyond its capacity…. My Lords, I confess that for a person not bred to the common law to express an opinion as to the true meaning aud extent of common law actions is to handle periculosae plenum onus aleae.”
16. Lord Sumner, says at pp. 453 to 456 (of 1914 A.C):
“The action for money had and received cannot now be extended beyond the principles illustrated in the decided cases, and although it is hard to reduce to one common formula the conditions under which the law will imply a promise to repay money received to the plaintiff's use, I think it is clear that no authority extends them far enough to help the appellants now.”
17. Then the noble Lord referred to the argument invoking Lord Mansfield's authority that:
“Whenever it is es aequo et bono for A to repay money which he has received from B and would be against conscience for A to keep it, then B has an equity to have A decreed to repay it,”
18. And proceeded:
“My Lords, I cannot but think that Lord Mansfield's language has been completely misunderstood…. Even the decision in Moses v. Macferlan(23), which has since been dissented from, for some time unsettled the lay [see Smith's Leading Cases, Notes to Marriot v. Hampton(24)], and this last mentioned case is one which illustrates the proposition that money is not thus recoverable in all cases where it is unconscientious for the defendant to retain it, for no one could doubt that Hampton's retention of the money in that case was very like sharp practice…. With whatever complacency the Court of King's Bench might regard the views expressed in Moses v. Macferlan, protests were very early made against it in the Common Pleas [Johnson v. Johnson(25)], and in Miller v. Atlee(26) Pollock, C.B, bluntly declared the notion that the action for money had and received was an equitable action to be ‘exploded’ and Parke, B., sitting by him, did not say him nay. This episode is reported only in 13 Jurist, but it smacks of truth…. There is now no ground for suggesting as a recognizable ‘equity’ the right to recover money in personam merely because it would be the right and fair thing that it should be refunded to the payer.”
19. I have quoted thus at a length, which may be called wearisome, to show how dangerous it would be for an Indian Judge like myself to deal in my own language with the nature, scope and extent of the action for money had and received or to classify accurately and exhaustively the circumstances which would entitle a person to bring an action for money bad and received against another, especially when Latin phrases like aequo et bono have to be freely used by Judges and counsel to explain themselves fully. Lord Sumner at p. 458 (of 1914 A.C) says: “Of equitable principles I hesitate to speak confidently.” Lord Dunedin has in a passage which I have already quoted expressed himself even still more diffidently as “a person not bred to the common law” about his ability to express an opinion as to the true meaning and extent of common law actions. In Sankunni Menon v. Govindan Menon Benson, J., and myself did quote Blackstone to indicate the wide nature of the common law action for money had and received in the olden days. But the scope of that action ought not to be extended beyond what would be covered by the principles governing the numerous decisions which have laid down whit kinds of actions do come within it and what kinds of actions do not. In the case in Sankunni Menon v. Govindan Menon the defendant who received the money knew from the beginning that the money belonged to his tarwad and not to himself and the person who paid it did not know it. While privity of contract between the parties is, of course, not necessary to sustain such an action, I think there must be what might be called some privity of a legally recognizable nature, such as some knowledge of particular facts in the man who received the money, and some mistake or ignorance of fact on the part of the man who paid the money, or some relation of trust and confidence between the person who received the money and the person claiming the money or a portion thereof, on which the Court could fasten as creating the relation of principal and agent (though by fiction) between the plaintiff and the defendant. I shall try to illustrate what I mean by a simple example: B owes money to A. A dies. There is a dispute between C & D, each claiming to be the sole heir of A. B pays the money to C. Can D sustain an action for money had and received against C even if he establishes against C that he is the rightful heir and not C? I am clearly of opinion that he could not do so, his only remedy being against the debtor B. In the present case, it is not shown that when the partnership-debtor paid money to defendant 1, defendant 1 knew that he had not a right to the whole of the money paid to him and it is also not shown that he was ever in a position of trust or confidence towards defendant 4 and it is also not shown that the debtor had any fraudulent motive in paying the whole money to defendant 1. A co-sharer may by a stretch of language, be treated as standing in a position of confidence towards his cosharers, but a person who ignorantly purchases from a cosharer the whole of the claim of all the cosharers cannot be said to be in such a position. I therefore agree that the plaintiff has no cause of action against defendant 1 and I concur in the order proposed by my learned brother.
S.N/R.K
20. Appeal allowed.