1. This appeal arises out of a suit brought by the plaintiffs for a declaration (1) that the decree obtained by defendant No. 1, dated the 9th of February 1917, is fraudulent and not binding upon them and the deity Thakur Madan Mohan Lalji and (2) that the property sold in execution of that decree is the endowed property and belongs to Thakur Madan Mohan Lilji and that it was wrongly sold in execution of the said decree. The plaintiffs further pray for having the sale set aside and for a permanent injunction against defendant No. 1 restraining him from executing the decree any further. Subsequent to the filing of the plaint, the plaintiffs added a further prayer for the recovery of possession of the property with mesne profits.
2. The plaintiffs are the daughters in law of one Nownit Lal, who died on the 11th of January 1904, leaving his last Will, dated the 20 th of March 1898. By the Will Nownit Lal dedicated all his properties moveable and immoveable--to Sri Thakur Madan Mohan Lilji, making him the absolute proprietor and possessor of the properties after his death. Ha appointed the plaintiffs as managers or muntazims of the properties and of the Thankur sewa , The plaintiffs obtained Probate of the Will on the 20th of March 1804.
3. On the 9th of January 1914 plaintiff No. Musammat Bahurani alias Bari Bahu, executed a hand note in lieu of a loan of R. 300 in favour of defendant No. 1. In the hand note she described herself as shebaith and muntazim, estate Thakur Madan Mohan Lalji. The object of the loan is described in the hand-note to be to pay off Government revenue, etc. On foot of this hand-note, the defendant No. 1 obtained an ex parte decree against the plaintiffs in the Court of the Small Cause court Judge on the 9th of February 1917. In execution of that decree, the defendant No. 1 put the property in dispute to auction. Defendant No. 3 purchased the said property on the 23rd of November at the auction sale, Consequently, the present suit has been instituted by the plaintiffs to have the aforesaid decree and the sale set aside.
4. The plaintiffs have described themselves in the suit as shebuiths of Thakur Madan Mohan Lalji and the suit purports to have been brought on behalf of the deity. The decree in question is sought to be set aside, on the ground that it was obtained by perjured evidence and fraudulently by suppressing the summons and thereby fraudulently keeping the plaintiffs out of the knowledge of the suit; that it was not binding on the idol and that the sale was brought about by suppression of processes in execution. Defendant No. 1, the decree-holder, and defendant" No. 3, the purchaser, contested the plaintiffs' suit, denying categorically all the allegations relating to fraud and affirming that the defendant No. 3 was the real purchaser, that the decree was a proper one and not obtained by fraud and so binding on the idol's estate.
5. Both the Courts below have decreed the plaintiffs' suit and hence this is an appeal by defendant No. 1.
6. The lower Appellate court raised the following question! for determination:
(1) Whether the Small cause Court decree was a valid decree against the idol.
(2) Whether summonses in the Small Causa Court suit were properly served on the present plaintiffs,
(3) Whether the decree in question was fraudulent and whether a regular suit would lie for setting aside the decree on that ground.
7. The first two issues were decided against the plaintiffs, and the last one in their favour.
8. As to the first point, the decision of the lower Appellate Court was in variance of that of the Munsif. The Munsif held that the decree and the sale of the property in question were not binding on the idol, inasmuch as he was not a party to the suit as well as to the execution proceedings; that the decree was incapable of execution against the estate of the idol and the execution sale was not a valid one. The learned District Judge in appeal, differing from the view taken by the Munsif, held that the idol was a party to the decree, inasmuch as the present plaintiffs were described as shebaiths of the idol, and that the decree directed the money to be realised from the estate of Babu Nownit Lal. The Court below has come to this conclusion upon a construction of the plaint and the decree. The respondents, while supporting the decree of the lower Appellate Court, question the validity of the aforesaid finding. They contend that the view taken by the Munsif was correct and that the plaintiffs were not sued in their representative capacity as shebaiths or managers of the estate of Babu Nownit Lal. The idol was, therefore, not represented and the decree is not binding upon him. In doing so, their object is to attack the very foundation of the defendants' suit which resulted in the decree in question. If this contention were upheld, the consideration of the further questions raised in the case will necessarily be obviated.
9. It may be mentioned here that the genuineness of the hand-note in lieu whereof the decree was obtained, or the passing of the consideration, is not disputed in the present case. The band-note in question describes the executant, plaintiff No. 1, as the shebaith or munlazim, estate Sri Thakur Madan Mohan Lalji." The loan was, therefore, taken by the plaintiff No. 1 on behalf of the idol. In the plaint of defendant No. 1 (Exhibit 9), the present plaintiffs, who were defendants in that case, were described as "Muntaziman Estate mokoofa Babu Nownit Lal deceased" (managers of the estate en do wed by Babu Nownit Lal deceased;. In the body of the plaint, it has been made more clear by stating that the defendants Nos. 1 and 2 "are the managers of the estate of Babu Nownit Lal deceased, who in his Will, dated the 20th March 1893, made a private waqf of his property in favour of his family god, Thakur Madan Mohan Lalji." In paragraph No. 4 it was clearly stated that the loan in question was taken for the benefit of the endowed property and that the defend ant No. 1 as a manager of the property is bound to pay the said money. There was a clear prayer in the plaint for making the said endowed estate of Nownit Lal, in the management of defendants Nos. 1 and 2, liable for the decree passed in the case. The decree in question clearly stated that the money was borrowed by defendant Nos. 1 and 2 for the benefit of the endowed estate, of which they are the executrices, and that the estate would be liable for the claim. The description of the plaintiffs as defend, ants in that case was in accordance with the Will itself, which described them as muntazim and as being the managers of the endowed estate. The defendant No. 1, an plaintiff in that case, did not conceal any fact, but clearly stated the purpose of the loan and the capacity in which the loan was contracted, and the decree was accordingly obtained as against the endowed estate of Nownit Lal, of which the idol under the Will is the proprietor, The view taken by the lower Appellate Court is, therefore, in agreement with the true object and scope of the suit and the express terms of the decree. The decree in question was, therefore, a valid decree against the idol and was capable of being executed against the endowed property., Agreeing with the finding of the Court below, I overrule the objection of the respondents.
10. The next question is as to whether the processes in the suit, namely, the summonses, etc., were properly served on the plaintiffs. The Courts below have concurred in their finding, which is to the effect that the present plaintiffs were aware of the Small Cause Court suit and that the summonses were served upon them properly. This is a finding of fact, and nothing has been urged to show that it is not born out by the evidence on the record and that it is not a valid finding. I, therefore, accept this finding as conclusive in second appeal.
11. The Court below has also held that although the hand-note in question was executed by plaintiff No. 1 in the temporary absence of plaintiff No. 2, the former must be held to have had ample authority to act on behalf of the latter so as to bind her also. Consequently the Court held that the hand-note in question was binding on the Thakur, although only one of the plaintiffs executed the same. As to the necessity for the loan, it is better to reproduce the finding of the Court below, inasmuch as upon it the Court below has based its entire derision in favour of the present plaintiffs:--
"The next question that arises for decision is whether the hand-note was executed for legal necessity. The recital in the hand-note shows that the money was borrowed for payment of revenue and other expenses. What those other expenses are is nowhere skated. From the evidence it appears Rs.102-1.3 were necessary for payment of Government revenue of one particular estate. In the evidence it is not stated that any money was required to be raised for payment of Government revenue of any other property. About the other necessity the evidence is most unsatisfactory, as has been actually found by the lower Court. In fast the learned Vakil for the appellant, defendant No 1, did not seriously challenge this finding of the Court. I am, therefore, of opinion that only a part of the consideration of the hand note (Rs. 102-1-3) was for a necessity binding on the estate of the idol and there ought not to have been a decree against the estate for more than this sum and interest and Coats. This fact was concealed from the Small Cause Court Judge and as such the decree obtained in the Small Cause Court suit for a sum beyond this amount must be held to be fraudulent."
12. The Court then discussed the authorities on the subject and same to the conclusion that fraud was comitted by defendant No 1 in obtaining the decree by concealing the material fact from the Court, "which, if not concealed, would have affected the decision in the other way," and "this concealment would amount to a fraud which would vitiate the decree." The material fact concealed from the Court, as stated by the learned Judge, is ''that part of the consideration of the hand-note was not binding on the idol."
13. The lower court is further of opinion that the defendant No. 1 as plaintiff in the former suit was bound to disclose the aforesaid fact, inasmuch as the parson sought to be bound by the decree is the idol in the position of a minor in the eye of the law.
14. Upon the aforesaid finding the Court below held that the suit to set aside the decree on the ground of the aforesaid fraud does lie and that the decree obtained was fraudulent.
15. As regards the legal necessity of the loan, the Court below has in the aforesaid hading differed from the view of the Munsif. The Munsif held that the necessity as regards Rs. 102-1-3, as Government revenue payable for the January kisht for Jagdishpur Balia for the year 1914, was fully established and that the balance of the money was also presumably taken for the purposes of the estate, it having been proved that the present plaintiffs, manager, had to incur heavy debts for the estate, Mr, Manuk on behalf of the appellant contends that the view taken by the Munsif is correct. In the hand-note the purpose of the loan is state to be "for the payment of Government revenue, etc." The onus of proving the necessity was upon the defendant No. 1, who was plaintiff in the case, and as the evidence in the case upon the finding of the Munsif also was unsatisfactory, the finding of the learned District Judge, that the necessity of the loan except for Rs. 102 1-3 has not been proved, must be adapted for the purposes of this case.
16. The question is whether the aforesaid finding is sufficient to vitiate the decree as having been tainted with fraud, upon which ground alone the decree in question can be set aside. To my mind the issue as to the necessity of the idol or the estate, with regard to part of the consideration money, does not arise in the present case, unless it was shown that the present plaintiffs, who were defendants in the former case as representing the idol, were prevented from proving their case by means of fraud practised upon them by the defendant No. 1, plaintiff in the former suit. The Courts below have held that there was no suppression of summonses, and as a matter of fast one of the defendants in the former case did appear. If the plaintiff) were aware of the suit, it was their bounden duty to place before the Court the fast that the entire loan' money was not taken for the purpose of the idol. This is a ground which appertained to the former case. The plaint clearly stated that the loan was taken for the benefit of the estate. In the judgment of that case the point has been fully discussed and the Courts came to the conclusion that the loan was for the benefit of the estate of which the defendants Nos. 1 and 2 were executrices and that the estate was liable for the same. That finding operates as res judicata and cannot be opened, unless the decree is assailed on the ground that it was procured by means of fraud. The issue as to the necessity for the loan, which appertained to that case, cannot be tried anew in the present suit. The fraud must be proved as being extraneous to the decree. This has been made clear by the recent decision of this Court in Manindra Nath Mittra v. Hari Mondal 54 Ind. Cas. 626 : (1920) Pat. 98 : 24 C.W.N. 133 and the oases of Logadapatti Chinnoyya v. Kotla Ramanna 19 Ind. Cas. 579 : 38 M. 203 at p. 208 : (1913) M.W.N. 387 : 13 M.L.T. 421 : 25 M.L.J. 228; kndirvelu Nainar v. Kuppuswami Naicker 45 Ind. Cas. 774 : 41 M. 748 : 34 M.L.J. 590 : 23 M.L.T. 372 : 8 L W. 103 : (1918) M.W.N. 514 (F.B.); Nanda Kumar Howladar v, Ram Jiban Howladar 23 Ind. Cas. 337 : 41 C. 990 : 18 C.W.N. 681 : 19 C.L.J. 457 and Maung Aung Myat v. Ma Ywet 10 Ind. Cas. 780 : 4 Bur. L.T. 76.
17 I, therefore, hold that the finding of the Court below is not sufficient to set aside the decree in question on the ground of fraud.
18. Now, the defendant No. 3 appellant is the purchaser of the property at the auction sale. His appeal is No. 16 of 1919. His case is that he is a bona fide purchaser for value and as such was not bound to enquire whether the decree was fraudulent and that the sale in question in execution of the decree will stand, even if the decree be proved to be fraudulent. The Court below has conceded the law on the subject, which is borne out by the authorities: Nagendra Nath Basu v. Parbati Charan Royal 35 Ind. Cas. 339 : 20 C.W.N. 819. and Radha Madhab v. Kalpataru Roy 16 Ind. Cas 811 : 17 C.L.J. 209, namely, that a sale in execution of a decree will not be rendered void even if the decree in execution whereof the sale took place ware fraudulent, unless the auction purchaser was a party to fraud in the execution proceedings which vitiated the sale itself. The Court below has not held that there was any fraud in the execution proceedings or in the conduct of the sale. It, however, holds that the sale is vitiated because the judgment-debtors do not appear to have been named in their representative capacity as representing the idol. This finding is inconsistent with the previous finding of the Court that the plaintiffs in the present case were described in the decree as representing the idol. The execution was in accordance with the decree. The idol was, therefore, fully represented in the execution proceedings. In the second place, this finding is vague and no evidence has been referred to in support of it. It is not a clear and convincing finding for a case of fraud. Thirdly, the finding is not sufficient to dispose of the point. Therefore, disagreeing with the Court below. I hold in favour of the appellant No. 3 that he being an innocent purchaser, the sale is not vitiated even if the decree in itself was tained with fraud. It has, however, been already held in the case of the appeal of defendant No. 1 that the decree was not vitiated by fraud and was not liable to be set aside.
19. The result is that both the Appeals Nos. 906 of 1919 and 16 of 1920 are decreed with costs.