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First Appeal No. 105 of 1957, decided on 6th June 1961.
Charge‑Immovable property made security for payment of money‑Whether security in mortgage or charge depends upon intention underlying transaction.
Narain Dass v. Murli Dhar 121 I C 81 and Janardhan v. Anant I L R 32 Bom. 386 rel.
S. 16 (1) (b)--" Incapable of execution" means unenforceable, does not mean invalid.
Sant Lal v. Ramaya Ram A I R 1938 Lab. 177 rel.
S.88-Not exhaustive-Governs persons clothed with fiduciary character-Constructive trust-Lease Lessee obliged under S. 108 (n), Transfer of Property Act, to protect lessor's interest and not to put himself in position conflicting with his duty and his interests, thereby gaining advantage over lessor.
Kerr on "Fraud and Mistake" 7th Edn. p. 195; Indu Bhusan v. Chowdhury Moazam Ali 33 C W N 106; Monohar Mookerjee v. Raja Peary Mohan 24 C W N 478 and Nugent v. Nugent L R (1908) 1 Ch. D 546 rel.
Hamidul Huq Chowdhury, Birendra Kumar De, Debesh Chandra Bhattacharjee and Ahmed Sobhan for Appellant.
Moti Lal Acharyya, Ranjan Pal and Md. Mozammel Huq for Respondents.
-This appeal is directed against the judgment and decree passed by Mr. G. Mowla, Subordinate Judge, Chittagong, in Title Suit No. 2 of 1956.
2. Defendant No. 4 (respondent No. 4), namely, Mono Rama Kanungoe, widow of late Mokshada Ranjan Kanungoe, has filed a cross-objection in respect of several findings in the said judgment. The appeal was heard by us along with the cross-objection, and this judgment will dispose of the appeal as well as the cross-objection.
3. Plaintiff's case, as set out in the plaint, may be briefly stated as follows: ---
The property, which is the subject-matter of the suit, has been described in the schedule appended to the plaint. It comprises mainly of a residential house in the town of Chittagong and it originally belonged to one Monmohan Dastidar, predecessor of proforma defendants 7 to 9. A Pleader of Chittagong, by the name of Mokshada Ranjan Kanungoe (hereinafter called Mokshada Babu) took a lease of the house for residential purpose at a monthly rental of Rs. 25. The lessee, Mokshada Babu, was required under the terms of the lease to pay municipal taxes and dues in respect of the said premises. Mokshada Babu coveted the property and wanted to take it by any means he could adopt. He entered into an agreement with the said Monmohan Dastidar (hereinafter called Monmohan Babu) for the coveyance of the said property for a sum of Rs. 5,000 and a sum of Rs. 2,500 was paid to Monmohan Babu by Mokshada Babu some time in October 1928. Inasmuch as Mokshada Babu did not take any steps to pay the balance of the purchase money of Rs. 5,000, as was settled by the aforesaid agreement, Monmohan Babu served upon him a notice to the effect that if the balance of the sum of money was not paid within a specified time, the advance of Rs. 2,500 would stand forfeited. As Mokshada Babu did not pay the said amount, Monmohan Babu served a notice upon him under section 106 of the Transfer of Property Act, terminating the monthly tenancy in respect of the property and instituted a suit for ejectment which was numbered as Other Suit No. 406 of 1929. Mokshada Babu also claimed that, inasmuch as Monmohan Babu could not produce any satisfactory document of title, he was not liable to pay up the balance of the money which was stipulated to be the price of the property. This led to two disputes, the first being a suit instituted by Monmohan Babu (as mentioned below) and numbered below as Other Suit No. 406 of 1929. The second dispute was with regard to the sum of Rs. 2,500 which was paid in advance by Mokshada Babu whose contention was that it was not liable to be forfeited by Monmohan Babu. In respect of these two disputes, both Monmohan Babu and Mokshada Babu agreed to refer them to an arbitration of three persons. Thus O. S. No. 406 of 1929 and the dispute with regard to the sum of Rs. 2,500 advanced by Mokshada Babu to Monmohan Babu were referred to the said arbitrators. Eventually the arbitrators gave two awards, one relating to O. S. No. 406 of 1929 and the other being with regard to the dispute as to the advance money paid by Mokshada Babu to Monmohan Babu. The said two awards have been marked as Exhs. 5 and 5 (a) in this suit. The two awards were filed in Court for the purpose of obtaining decrees thereon. The award in respect of O. S. No. 406 of 1929 (relating to the suit for ejectment) as filed by Monmonhan Babu and the award, which dealt with the question as to whether the sum of Rs. 2,500 was liable to be refunded, was filed by Mokshada Babu, who instituted Other Suit No. 30 of 1932. Both the awards were decreed. But O. S. No. 406 of 1929 had a chequered career and eventually it was dismissed for non-prosecution in the appellate Court. Thus Monmohan Babu's suit (O. S. No. 406 of 1929) stood dismissed, and the second award and the decree in respect thereof continued to be binding on the parties. Plaintiff's case is that the said award created a charge on the said property in respect of the sum of Rs. 2,500, advanced by Mokshada Babu to Monmohan Babu. According to the award, Mokshada Babu could not be ejected from the premises in question until he was paid back the said sum of money; the rent of the premises was to be set-off against the interest on the said sum of money until such payment. Monmohan Babu could not pay back the aforesaid sum of money.
4. Sometime thereafter Monmohan Babu died and his heirs, namely, proforma defendants 7 to 9 (Mrinal Kanti Dastidar, Mriganga Baran Dastidar and Ranjulal Dastidar) were in financial difficulties. With a view to clear the mortgage dues and to pay up the said sum of money and for maintenance of the heirs of Monmohan Babu, the said defendants, sold the property to plaintiff, Khan Bahadur Khalilur Rahman, on the 1st December, 1943. After the purchase of the said property the plaintiff paid off the mortgage dues and deposited the sum of Rs. 2,500 in accordance with the terms of the second award and filed a petition in Court under sections 47 and 151 of the Code of Civil Procedure, and the case was marked as Miscellaneous Case No. 1018-A of 1944. It was ultimately dismissed on the ground that the plaintiff's remedy was by way of brining a separate suit to have his title declared.
5. During the pendency of the said miscellaneous case, Mokshada Babu filed a petition for mutation of the name of his wife, defendant No. 4 Monorama Kanungoe, with regard to the said property which was surreptitiously and collusively purchased by him to the benami of defendant No. 5, Bhagabati Charan Dasgupta. The said property was sold on account of a decree obtained by defendant No. 6, the Commissioners of Chittagong Municipality, in respect of arrears of municipal rates and taxes in S. C. C. Suit No. 287/245/210 of 1935. The property was purchased by Mokshada Babu, fraudulently and surreptitiously, on the 15th of May, 1936. The application for mutation of the name of defendant No. 4 was made after the plaintiff had filed the said application under sections 47 and 151 of the Code of Civil Procedure. Plaintiff's case is that the said purchase was by Mokshada Babu in the benami of defendant No. 5, as stated above, and that defendant No. 4 was not the purchaser of the property, as alleged by the said defendant. Plaintiff's further case is that Mokshada Babu defaulted in paying the municipal rates and taxes (which he was bound to pay, both under the terms of the lease as well as the award) as a result of which the same fell into arrears. Mokshada Babu thereafter got the property sold by the Chittagong Municipality. He thereupon surreptitiously and fraudulently purchased the same. It is claimed that, in these circumstances, Mokshada Babu became a constructive trustee‑in respect of the said property for the benefit of Monmohan Babu. Plaintiff's definite case is that Mokshada Babu concealed the said sale from Monmohan Babu.
6. The miscellaneous case filed by the Plaintiff had also a chequered career and eventually the plaintiff was relegated to a suit. On the 19th of January, 1955, he filed a suit which was marked as Suit No. 1 of 1955. The suit was withdrawn on the 29th of November, 1955, on the ground of formal defect of party and a fresh suit was filed on the 30th of January, 1956, being Title Suit No. 2 of 1956, which is the suit relating to the present appeal. Plaintiff claims that the suit has been filed in proper time and has asked for a decree in respect of his maliki right by purchase of the said property; in the alternative, he has also asked for setting aside the benami purchase by Mokshada Babu as being a fraudulent transaction. Furthermore, he has prayed for various other reliefs. .
7. Defendant No. 4, Monorama Kanungoe, and defendants 1 to 3, namely, Bejoy Ranjan Kanungoe, Shanchai Ranjan Kanungoe and Hirak Ranjan Kanungoe, sons of Mokshada Babu, contested the suit and have filed separate written statements. Defendant No. 6, the Commissioners of Chittagong Municipality, also filed a written statement. Defendant No. 5, Bhagabati Charan Das Gupta, filed a written statement but did not contest the suit. He has been examined as D. W. 2 in the suit and supported the defence case that the said property was purchased by defendant No. 5 and that he was the benamdar of the said defendant No. 4. The contesting defendants have traversed the averments made in the plaint. They contend that the suit is not maintainable in its present form and that it is barred by the law of limitation. It is further alleged by them that kabala, by which the plaintiff purchased the suit property, is not a genuine document and that no consideration has passed in respect of the same. They have further asserted that the kabala, which was executed by and on behalf of the heirs of Monmohan Babu, did not transfer the interest of his minor sons in the property in question. It is also alleged by the defendants that defendant No. 4 purchased the suit property at the auction sale consequent on a decree passed against Monmohan Babu for arrears of municipal rates and taxes. It has been denied that the suit property was purchased by Mokshada Babu in the benami of Bhagabati Charan Das Gupta (defendant No. 5). It has been claimed that defendant No. 4 is now the owner of the property.
8. On the pleadings the following issues were framed by the learned Subordinate Judge.
"(1) Is the suit maintainable as framed
(2). Is the suit barred by limitation
(3) Is the suit hit under section 47 of the C. P. Code
(4) Is the plaintiff's purchase bona fide and for considera tion Has the plaintiff his alleged right, title and interest in the suit land
(5) Is the suit over‑valued and is the plaint liable to be returned to be filed in proper Court
(6) What relief, if any, is the plaintiff entitled to Additional issue.
(7) Was Mokshada Ranjan Kanungoe a trustee of Monmohan Dastidar in respect of the disputed property "
9. Learned Subordinate Judge held that the kabala, by which the plaintiff purchased the suit property from the heirs of Monmohan Babu, was a genuine kabala and that consideration had passed from the transferee to the transferors. He further held that the sale of the suit property for arrears of municipal rates and taxes was not in respect of the dues of the disputed property itself. He, however, held that defendant No. 5 Bhagabati Charan Das Gupta, was the benamdar of Mokshada Babu, who was the real purchaser of the property. He negatived the plaintiff's contention that Mokshada Babu became a constructive trustee of the suit property for the benefit of Monmohan Babu in respect of the property at the auction sale at the instance of the Municipality. He also held that the award was no longer executable inasmuch as Monmohan Babu took no steps to enforce in time his right of ejectment by paying off the sum of Rs. 2,5U0 within four months of the decree passed on the award. The learned Subordinate Judge repelled the plaintiff's contention that the award created a charge on the suit property in respect of the sum of Rs. 2,500 advanced by Mokshada Babu to‑Monmohan Babu. He further held that the suit was barred by the law of limitation. He found that the plaintiff had purchased the disputed property on the 1st of December, 1943, and that the present suit was instituted on the 30th of January, 1956. In the aforesaid circumstances, according to the learned Subordinate Judge, the suit having been filed twelve years after the said purchase by the plaintiff, the same was barred by limitation. Finally, he held that the plaintiff was not entitled to pray in aid the provisions of section 14 of the Limitation Act. He, therefore, dismissed the suit. Hence this appeal.
10. In the cross‑objection defendant No. 4, Monorama Kanungoe, has challenged the finding of the learned Subordinate Judge that the suit property was purchased by Mokshada Babu at the auction sale in the benami of defendant, No. 5, Bhagabati Charan Das Gupta. The finding of the learned Subordinate Judge that the kabala, by which the plaintiff purchased the suit property, was a genuine document, was also challenged. Furthermore, defendant No. 4 has contended that the kabala, which was not executed by all the heirs of Monmohan Babu, did not pass any title to the plaintiff in respect of the shares of the minor sons of Monmohan Babu as the said kabala was not executed on behalf of the said minors.
11. At the hearing of this appeal, it was contended on behalf of the appellant that, on a proper consideration of the award in question, a charge was created on the suit property in respect of the sum of Rs. 2,500 advanced by Mokshada Babu to Monmohan Babu as a part of the purchase money. It was also contended that the suit property was allowed to fall into arrears by Mokshada Babu who, as a tenant of the property, was bound to pay the municipal rates and taxes. It has been further argued that the suit property was thus deliberately caused to be sold on account of arrears of municipal rates and taxes in respect of the suit property and that, as Mokshada Babu purchased the same sur reptitiously in the benami of defendant No. 5, Bhagabati Das Gupta, a resultant trust accrued in favour of the plaintiff. It was further contended that the purchase by Mokshada Babu of the suit property at the auction sale at the instance of the Chittagong Municipality was a fraudulent transaction and would not prevail over the right of the plaintiff in respect of the suit property. Moreover, it was argued that, as a charge was created in respect of the aforesaid sum of Rs. 2,500 over the suit property and also because there was a constructive trust in favour of Monmohan Babu with regard to the said property, the question of limitation was wrongly decided by the Court of first instance.
12. On behalf of the contesting respondents it was contended that the learned Subordinate Judge misdirected himself when he held that the purchase of the suit property on the 15th of May, 1936, at the auction sale was by Mokshada Babu in the benami of defendant No. 5, Bhagabati Charan Das Gupta. It is claimed that it was, in fact, purchased by defendant No. 4, Monorama Kanungoe. The next contention of the respondents was that the kabala, by which the plaintiff purchased the suit property, was not a genuine document and that no consideration passed in respect thereof. It was furthermore contended that the said purchase did not pass to the plaintiff any interest of the minor heirs of Monmohan Babu in respect of the suit property as the kabala in question was not executed on behalf of 'the minor sons of Monmohan Babu.
13. With regard to the question as to whether the purchase of the suit property at the auction sale at the instance of the Munici pality was a benami transaction, it is the case of both the parties that it was so. Defendant No. 5 was admittedly a benamdar. Plaintiff's case is that it was purchased by Mokshada Babu, whereas the case of the contesting respondents is that defendant No. 4 is the actual purchaser of the suit property.
14. On this point the plaintiff has examined himself as well as several witnesses. It is stated by the plaintiff that the purchase was by Mokshada Babu. P. W. 5 Nibaran Baidya has stated that he was present at the time when the suit property was sold in Court in 1936; that one relation of Mokshada Babu did, in fact, bid at the sale; that Mokshada Babu was also present; that Mokshada Babu paid the purchase money. In cross-examination this witness has stated that his evidence in the previous suit he had stated that he did not remember who paid the money. P. W. 8 Sayedur Rahman has stated that he was also present at the time of the said auction sale. He has given evidence to the effect that Mokshada Babu asked him and others not to bid at the sale after one Prasanna had started bidding and after the price had gone upto Rs. 100. The witness himself went upto Rs. 200 and thereafter Mokshada Babu asked him not to bid because it was his (Mokshada Babu's) bashabari'. Eventually, the bid went up to Rs. 210 on behalf of Mokshada Babu and the property was purchased at that figure. This witness was subjected to cross‑examination on behalf of the defendants. But we do not think that he was shaken in such cross‑examination. His evidence is highly probable in the light of the circumstances of the case and we have no hesitation in accepting the same. Even if we do not take into consideration the evidence of P. W. 5 in this connection, the evidence of P. W. 8 Sayedur Rahman stands.
15. Defendant No. 4, Monorama Kanungoe, has been examined as D. W. 1. She has stated that she purchased the suit property at the auction sale and that, when she came to know of the said sale, she sent for defendant No. 5, Bhagabati Charan Das Gupta, and paid him money with which the property was purchased by her. Her story is supported by defendant No 5. Bhagabati Charan Das Gupta, who was examined as D. W. 2. The other witnesses examined on behalf of the defendants have supported this claim of defendant No. 4. The story with regard to the purchase of the property at the auction sale by defendant No. 4 is improbable. The evidence of the defendants witnesses are not at all convincing. The trial Court found it difficult to believe these witnesses and we ourselves are unable to place any reliance on them. We, therefore, hold that the learned Subordinate Judge has rightly held that the suit property was purchased by Mokshada Babu in the benami of defendant No. 5, Bhagabati Charan Das Gupta. We further hold that the said property was purchased at the auction sale on the 15th of May, 1936, in the manner as stated by P. W. 8, Sayedur Rahman. We have not discussed the documentary evidence adduced on behalf of the defendants in this behalf because in this connection we cannot place any reliance on them.
16. The next question is, whether the kabala, by which the plaintiff purchased the suit land, was not a genuine document in the sense that no consideration passed for the same.
17. On this point there is the direct evidence of the plaintiff as well as other witnesses examined on his behalf. There are some discrepancies in the evidence with regard to the exact time of payment of consideration and also as to when the document was registered. However, such discrepancies are not, in our opinion, very material and there is hardly any good reason to disbelieve plaintiff's witnesses on this point. In any event, there is evidence that the plaintiff redeemed the property and paid off the mortgage dues. There is direct evidence to this effect which we have no hesitation in ‑accepting. The heirs of Monmohan Babu have been made parties to the suit and they have not denied that no consideration passed with regard to the purchase of the suit property by the plaintiff. In these circumstances, we also hold that the learned Subordinate Judge has rightly arrived at the finding that the document is a genuine one and,, furthermore, that consideration passed in respect of the same.
18. It was contended on behalf of the respondents that the document by which the plaintiff purchased the suit property, did not pass the interest of the minor sons of Monmohan Babu inasmuch as the said document (the kabala) was not executed on behalf of the minors.
19. It has been argued before us that the said document, namely, Exh. 1 has not been signed by Biraprava Dastidar, widow of Monmohan Babu, as executant of the document on behalf of herself and her minor sons. In the said document the executant has been described in the following terms:
"Hiraprava Dastidar, widow of late Monmohan Dastidar for self and for minor sons Mrinal Kanti Dastidar, Mriganka Boran Dastidar and Ranjulal Dastidar sons of late Monmohan Dastidar, village Dhalghat, P.S. Patia, by caste Baidya, by profession Cultivation. The minors are represented by their guardian mother Hiraprava Dastidar."
Then again, in the body of the document it has been stated as follows
". . . Having no other means to repay the said debt and for meeting our essential expenses and for legal necessity and for maintenance and educational expense of the minors for meeting the expenses of the marriage of the first daughter, proposal was made to sell the said (bashabari) house and lands and you expressed your desire to purchase and fixing the price of the house and lands of the bashbari at Rs. 8,000 and deducting a sum of Rs. 4,000 in all for paying the said Tinkaripati Dastidar a sum of Rs. 1,500 and Mukshada Ranjan Kanungoe a sum of Rs. 2,500 and receiving the balance of Rs. 4,000 cash from you in presence of the witnesses today I do hereby sell "
It will be clear from a perusal of the said document, Exh. 1 that this purports to be a sale of the property by Hiraprava Dastidar for herself and also on behalf of her minor sons. It cannot be said, by any manner or means, that the document did not pass the interest of the said minor sons and that it merely conveyed to the plaintiff the interest of the said Hiraprava Dastidar only.
20. On behalf of the respondents reliance was placed on a decision of a Division Bench of the Calcutta High Court in the case of Banku Behari v. Banku Behari (47 C W N 288), where it has been held that, under the Hindu Law, the natural guardian of a minor is the father, or, failing him, the mother or a person selected by the father and that any other person for guardianship must be appointed by Court. It has also been held that a document alleged to be executed by minors, represented by a guardian, but not signed by a guardian, either in such capacity or as representing the minors, must operate as a document executed by the guardian in his individual capacity. In the aforesaid case a suit was filed by one of the minors after attaining majority to recover a property transferred by a person, who was not his guardian, de facto or de jure. It will be seen 'that in the aforesaid case it was found for a fact that the person, who had executed the document was not a guardian, either de facto or de jure. It was, therefore, held that the document did not pass the interest of the minor.
21. It will thus be seen that this decision has no manner, or application to the facts of the present case where the mother of the minors as natural guardian purported to execute the document on behalf of herself and her minor sons for legal necessity, which is plainly recited in the document itself. Moreover, the minor heirs have now been made parties to the suit and they have not come forward to challenge the kabala. We, therefore, hold, that the said document passed the interest of the said minor sons of Monmohan Babu to the plaintiffs.
22. On behalf of the plaintiff‑appellant if has been contended that the award, as stated above, has created a charge on the said property in respect of the sum of Rs. 2,500 which was advanced by Mokshada Babu as purchase money.
23. We have already seen that there were two connected references made to the arbitrators and the arbitrators gave two awards simultaneously on the same day, namely, on the ‑31st of January, 1932. One of the awards related to Other Suit No. 406 of 1929 which was Monmohan's suit for ejectment. This has been marked as Exh. 5 in this case. After reciting some features of the case before the arbitrators, the said award, Exh. 5, reads as follows:
"By the award on the private reference we have found that the plaintiff is liable to refund the sum of Rs. 2,500 only to the defendant which the former received as earnest money for the sale of the land in suit. In this view of the (matter), we hold that the plaintiff is entitled to eject the defendant from the suit land only on payment of the sum of Rs.2,500 to the defendant or deposit of the same in Court. On this condition being fulfilled, if the defendant fails to vacate the premises within one month from the date of payment or notice of deposit, the plaintiff will be entitled to eject the defendant in execution proceeding and realise the cost of execution from him, with mesne profits of Rs. 40 per month for the subsequent period ......
It will be seen that this award makes specific reference to the other award which also substantially traverses a common ground. The other award, Exh. 5 (a), states, inter alia, as follows:
" .We have come to the conclusion that sufficient grounds have not been made out to warrant the penalty of forfeiture of the sum of Rs. 2,500 paid as earnest money. In this view of this case we direct that the first party Babu Monmohan Dastidar will refund to the Second party Babu Mokshada Ranjan Kanungoe the sum of Rs. 2,500 within four months from the date of the decree if any made on this award and that the second party shall vacate the premises within one month from the date of payment. In default he will be liable to pay compensation for wrongful occupation at Rs. 40 per month until such time as he vacates or he evicted. This right of ejectment will be allowed to be exercised only when the sum of Rs. 2,500 will have been paid by the first party to the second party or deposited in Court in favour of the second party. So long as this money is not paid the 2nd party will be entitled to occupy the holding without payment of any rent which will be set‑off against the interest of his money assessed at 12 p.c. p.a. but he shall pay the Municipal Taxes and other repair charges "
24. It, therefore, follows, that the two awards must be read together in construing the true import and meaning of the aforesaid awards.
25. As the second award, Exh. 5 (a), is the only effective award, it has been contended on behalf of the respondents that the time limit for the payment of the said sum of Rs. 2,500 by Monmohan Babu was fixed at four months from the date of the decree made in respect of the award. It was, therefore, argued that, after the expiry of the said period of four months, Monmohan Babu had no right to obtain possession of the suit property on payment of the said sum. In other words, there would be a forfeiture of the said property after the said time limit of four months had expired.
26. We do not think that the terms of the award itself lead to such a result. So far as the other award, namely, Exh. 5, is concerned, the suit to obtain a decree thereon was eventually dismissed, and, therefore, the said award is inoperative; but, nevertheless, the two awards, which were simultaneously given and which contain a reference to the other award must be read together. It is clear from the terms of Exh. 5, as quoted above, that it was decided that Monmohan Babu had no right to forfeit the sum of Rs. 2,500 paid as earnest money by Mokshada Babu. No time limit was specified for the payment of the said sum of Rs. 2,500. It was only on payment of the said sum that Monmohan Babu was given the right to eject Mokshada by way of execution proceedings, if the latter failed to vacate the premises within one month from the date of such payment. By the second award, Exh. 5 (a), Monmohan Babu was required to pay the said sum of money within four months, as stated above. Mokshada Babu was required to vacate the premises within one month of such payment, in default, he would be liable to pay compensation for wrongful occupation at the rate of Rs. 40 per month. There after it proceeded to provide that, so long as the money was not paid, Mokshada Babu would be entitled to occupy the premises without payment of rent which would be set‑off against the interest on the said sum of money at 12 per cent. per annum. Mokshada Babu was further required to pay municipal rates and other repair charges. There is nothing in the terms of the said award to signify that it was intended to provide therein that after the expiry of the said period of four months there would be a forfeiture, of the right to recover the suit property. According to the respondents, Monmohan Babu was given the right to recover the property on payment of the said sum of Rs. 2,500 within a time limit of four months and that if he failed to pay the money within the specified period of time, he would altogether forfeit his right to recover the property. Such a construction of Exh. 5 (a) is not warranted by its express provisions; moreover, a construction like this will militate against the terms of the first award, namely, Exh. 5 where no time limit is specified for payment of the sum of Rs.2,500. Besides the provisions of Exh. 5 (a), negative such a construction. As we read the award, Exh. 5 (a), it provides that, if within four months the. said sum of money was paid by Monmohan Babu, Mokshada Babu would have to vacate the house within one month, otherwise, he would be liable to pay compensation at Rs. 40 per month. It further provides that as long as the money was not paid by Monmohan Babu, Mokshada Babu would have a right to retain possession in the said property and the rent therefore would be set off as against the interest of the money at 12 per cent per annum. Thus Exh. 5 (a) makes two separate and distinct provisions. In the first place, it provides for compensation at the rate of Rs. 40 per month if the amount of Rs. 2,500 is paid within four months and if the premises are not vacated within one month from the date of such payment. Secondly, it provides that so long as sum of Rs. 2,500 still remains unpaid Mokshada would be entitled to retain possession of the said premises and as long as the amount is not paid, there will be no payment of money on either side, the rent of Rs. 25 per month being set‑off against the interest on Rs. 2,500 at 12 per cent. per annum which will work out at Rs. 25 per month. It is clear that in respect of one eventuality there is compensation at the rate of Rs. 40 per month and in case of the second eventuality there is only interest at Rs. 25 a month to be set‑off against the rental of Rs. 25 per, month. It is patent that there are two distinctly separate and alternative provisions in Exh. 5 (a). It, therefore, follows that the property became a security for the payment of Rs.2,500 advanced by Mokshada Babu. Thus, the said award created a charge on the suit property in respect of the said sum of Rs. 2,500. Where immovable property is made security for payment of a sum of money, it is a charge on the property, if it is not a mortgage See Narain Dass v. Murli Dhar (121 I C 81). An intention to make A immovable property security for the payment of a debt creates a charge: See Janardan v. Anant (I L R 32 Bom. 386).
27. Mr. Sabita Ranjan Pal had at one stage contended before us that the transaction became a mortgage. We think that, strictly speaking, a charge was created. The possession of the property was given to Mokshada Babu by virtue of a lease and he was in possession of the same as a lessee and not as a mortgagee. The property already in his possession as lessee was made by the award a security for the said sum of money (if Rs. 2,500 within four months from the date of the decree on the award. In these circumstances, it is clear that thereby a charge as created in respect of the suit property for the money that was advanced by Mokshada Babu. At any rate, even if the accused created a mortgage, Monmohan Babu was entitled to redeem the same.
28. Learned Subordinate Judge has held that, inasmuch as the award had merged into a decree, the only remedy which the plaintiff had was to seek relief by way of executing the decree that, inasmuch as he failed to do it within three years of the date of the decree, the present suit was not maintainable.
29. Learned Advocate for respondents has next contended that the said award, namely, Exh. 5 (a), is void inasmuch as it was incapable of execution by way of execution proceedings. He has relied on section 16 (I) (b) of the Arbitration Act, which empowers a Court to remit an award to the arbitrators on the ground that it is indefinite and incapable of execution. Mr. Pal has asked us to hold that the word "incapable of execution" in clause (b) of subsection (1) of section 16 of the said Act mean incapable of immediate execution by way of execution proceedings in execution of the decree.
30. We do not think that such a construction to the phrase "incapable of execution" is justified, either on the plain meaning) of the words themselves or on any principles of law. The words incapable of execution" really mean "unenforceable". Them award cannot be held to be invalid, if it is incapable of immediate execution by means of execution proceedings to enforce the decree. In the view that we have taken we are supported by a decision of a Division Bench of the Lahore High Court in the case of Sant Lal v. Ramaya Ram (A I R 1938 Lah. 177). In that c se the award in a partition proceeding declared the rights of the parties without giving them possession. A decree was passed in accordance with the award. In a bona fide application for execution of that decree the applicant claimed possession of the property and made an alternative prayer that, in case possession was not given; the application should be treated as a suit under' section 47 (2} of the Code of Civil Procedure on payment of additional Court -fees. It was held that the award declared the rights of the parties in the property and did not state that possession was to be given to the parties. It was further held that the award was merely declaratory and hence possession of the property could not be given to the parties in execution proceedings. It was further found that the case was a fit one in which the provisions of section 47(2) of the Code of Civil Procedure should have been applied. Tek Chand, J., in delivering the judgment of the Division Bench in concurrence with Abdul Rashid, J., has observed, at page 178 of the report, as follows:
"The first contention raised by his learned counsel is that para. 8 of the final award which deals with the properties in list N. read with paras. 7 and 12 of the preliminary award, dated 10th August 1930, shows that the arbitrator had awarded possession of the properties in list N to the appellant. After examining the two awards and hearing counsel, I see no force in this contention. The award is merely declaratory of the rights of Sant Lal in the properties in question. It nowhere states that possession of those properties was to be given to him. I would therefore affirm the finding of the lower Court on this point and hold that possession of the properties could not be given to the defendant in execution proceedings."
Thus, there is no force in the contention of Mr. Pal that, unless an award is capable of being enforced immediately by way of execution proceedings, it will be held to be an invalid award.
31. It was vigorously contended before us on behalf of the plaintiff--appellant that the suit property was auction sold for arrears of municipal rates and taxes in respect of the said property.
32. On the question there is the evidence of the plaintiff himself who has been examined as P. W. 1 in this case. But it is obvious that the plaintiff's evidence is merely hearsay. Plaintiff--- appellant has made the Commissioners of the Chittagong Munici pality a defendant in the suit. In the written statement filed on behalf of the said defendant it has been stated that the suit property was sold for arrears of rates. This, however, cannot be treated as an admission by the said defendant No. 6 as against the rest of the contesting defendants. An officer of the Munici pality, who was examined as a witness in this case, was asked to produce the document, namely, the plaint in S. C. C. Suit No. 287/245/210 of 1935. This witness is P. W. 7 Ashraf Ali Khan. He has stated that he has heard that the holding has been sold at a Court sale at the instance of the Municipality. In his cross‑examination he has stated that the Municipality has records to show that the sale took place for arrears of taxes in respect of the disputed property. He has further stated that the Pleader for the Municipality saw the records and thereafter filed the written statement. We ourselves had asked the Munici pality to produce the relevant papers and documents which would show as to how the property was sold, whether it was in respect of arrears of municipal taxes in relation to the disputed property itself, or whether the said municipal dues were in respect of some other property. The reply that was given to us by the Chittagong Municipality is that the relevant documents were not traceable and that whatever documents were available had been made over to their lawyer, i.e., Mr. Md. Mozammel Huq, Advocate. We had asked Mr. Huq to produce such documents, but he said that he had no documents which would throw any light on the subject.
33. Mr. Hamidul Huq Chowdhury, who appeared on behalf of the plaintiff--appellant, has argued that in this case it was for the contesting defendants to establish that the municipal rates in respect of the suit property were, in fact, paid. He has drawn our attention to the fact that both by virtue of the terms of the lease as also by the provisions of the award itself it was incumbent on Mokshada Babu to pay the rates arid taxes in respect of the suit property which was in his occupation. It was, therefore contended that it was the duty of the defendants to an establish that Mokshada Babu, in fact, paid the municipal rates and taxes in fulfillment of his obligation. Learned Advocate has relied on the provisions of section 106 of the Evidence Act in support of his contention. The said section reads thus:
"When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
He has further pointed out illustration (b) of the said section which runs as follows:
"(b) A is charged with travelling on a railway without u ticket. The burden of proving that he had a ticket is on him".
It was, therefore, strenuously argued that, inasmuch as the obliga tion to pay the municipal taxes was upon Mokshada Babu and also because if he had paid such taxes he must have been in possession of receipts to support such payment, the burden of proving payment of municipal dues was on the contesting defendants.
34. We, however, find it unnecessary to decide this point inasmuch as we find it difficult to hold affirmatively, that the suit property was sold in respect of arrears of rates and taxes relating to it, even if such rates and taxes fell into arrears on account of default of payment by Mokshada Babu.
35. On this point also Mr. Hamidul Huq Chowdhury invited our attention to several circumstances which would tend to show that the property was sold for its own arrears of rates and taxes. He has pointed out the exhibits which show the figure at which the rates were assessed and has argued that they would show that the sum which fell into arrears is a figure which approximates to the assessment made in respect of the premises in question. He has also argued that the suit property was the only property which stood in the name of Monmohan Babu alone, whereas in respect of the other properties there were co‑sharers of Monmohan Babu. However much this circumstance may point towards the sale of the property in respect of its own arrears, we find it difficult to hold, affirmatively, in the absence of any other evidence in this connection, that the suit property was sold for its own arrears of rates and taxes.
36. We turn now next to the most important point which has been very strenuously argued before us on behalf of the appellant, Le, the conduct of Mokshada Babu in purchasing surreptitiously and collusively the suit property at the auction sale in violation of his statutory obligation to inform his lessor, Monmohan Babu, about the said sale, would create a constructive trust in favour of Monmohan Babu, the predecessor‑in‑interest of the plaintiff. On this point reliance was placed on section 108 (n) of the Transfer of Property Act, which runs thus.
"(n) if the lessee becomes aware of any proceeding to recover the property or any part thereof, or of any encroachment made upon, or any interference with, the lessor's rights concern ing such property, be is bound to give, with reasonable diligence, notice thereof to the lessor."
37. The substance of this argument is, that inasmuch as Mokshada Babu, the lessee, deliberately refrained from communicat ing to the lessor, i.e., Monmohan Babu, that the property was being sold for arrears of rates and taxes and also because Mokshada Babu, in breach of the aforesaid provisions of the Transfer of Property Act, himself surreptitiously and collusively purchased the said property, a constructive trust in respect of the suit property, therefore, accrued in favour of Monmohan Babu. It has been contended that the lessor, who had placed the lessee in possession of the leased property, reposed confidence in the lessee that he will faithfully discharge his obligation to inform the lessor of any threat to his ownership of the property by way of legal proceedings or otherwise. To this extent, it was urged, there was a fiduciary relationship between the lessor and the lessee.
38. It has been contended by Mr. Pal that section 108 of the Transfer of Property Act deals with the rights and obligations of the lessor and the lessee and that the provisions of sub section (n) are connected with corresponding rights of the lessee to claim rebate for any diminution in the property leased to him. Mr. Pal has further contended that the relationship between the lessor and the lessee is merely contractual and a breach of the duty cast on the lessee under section 108 (n) of the Transfer of Property Act would give rise to a claim for damages only and the lessee, if he has obtained the property himself in violation of the said provisions, would not be made to disgorge the property to the lessor on equitable terms. Mr. Pal has contended that even in such circumstances the lessee will be entitled to retain the property against the lessor.
39. We do not think that the contention of Mr. Pal is tenable. It is true that the relationship between a lessor and a lessee is contractual and that this creates certain rights and obligations inter parties; but this contractual relationship also creates statutory, rights and obligations between the parties and the provisions of section 108 (n) of the Transfer of Property Act are statutory, obligations which the lessee must fulfill. It is clear that the object of section 108 (n) is to protect the lessor against any collusive eviction by the act of the lessee. In this connection, we would like to quote the observations of Sir George Rankin, C. J., in the case of Indu Bhusan Chowdhury v. Chowdhury Moazam Ali Biswas (33 C W N.106/111), which are as follows:
"Cl. (n) has been pointed to as showing that the lessor owes a duty to the lessee to protect him from legal proceedings which would interfere with his possession, but this is entirely contrary to its real purport and effect. That clause throws a duty upon the lessee in order that the lessor may, if he chooses, protect his own interest and may be safeguarded against the results of a collusive eviction submitted to by the lessee."
40. In this case, according to the evidence, which we have accepted, the lessee himself evicted the lessor by a collusive purchase manipulated by himself. We shall advert to this aspect of the case hereafter. Section 108 (n) of the Transfer of Property Act imposes an obligation upon the lessee to notify to the lessor any invasion upon his proprietary right by legal proceedings or otherwise. It has been rightly contended that the lessor reposed confidence in the lessee to fulfill this statutory obligation, truly and faithfully. It is patent that to this extent there was a fiduciary relationship between the lessor and the lessee who will not be allowed to put himself in a position where his duty and his own interest come to conflict and to obtain an advantage over the lessor whom he is bound to protect by giving a timely information of the threat to his proprietary right.
41. It is useful to refer to certain circumstances under which equity implies a resultant or constructive trust. The law on the subject has been extensively set out in the case of Monohar Mookerjee v. Raja Peary Mohan Mookerjee (24 C W N 478). This case, however, deals with the purchase of certain property by a trustee, and the case itself is not very relevant for the purposes of this appeal but it, however, elaborately deals with the law on the subject and discusses the basic principle which governs dealings by persons in fiduciary position. The views expressed in the judgment that was delivered in that case have received the approval of the Judicial Committee of the Privy Council. Quite a large number of cases have been discussed in that case. We may usefully quote one of them which has been discussed at page 488 of the report thus:
"Reference may be made, for instance, to the decision of the House of Lords in Yark Buildings Co. v. Mackenzie 3 Paton 378. The appellants in that case were an insolvent Company and their estates were sold, by order of the Court of Sessions, at a public judicial sale to satisfy creditors. The procedure at such sales was to set up the property at a value fixed upon by the Court, which is called the upset price and which is founded on information procured by the common agent of the Court, who has the Management of all the out‑door business of a cause. The respondent was the common agent in that cause and he purchased for himself, at the upset price, no person appearing to bid more, and the sale was confirmed by the Court. In the course of eleven years, the purchaser in possession expended large sums for building and improvements. T here was no question as to the fairness and integrity of the purchase but the appellants sought to set aside the sale and to have the estate sold anew on the ground that the respondent (the common agent in Court on behalf of all parties to procure information and attend the sale) was in the nature of a trustee and so disabled to purchase. The case was argued before the House of Lords for sixteen days, by counsel of the highest eminence, with exceptional ability and learning. The appellant contended that the common agent was under a disability to purchase, arising from his office; that the rule was founded on reason and nature and prevailed wherever any well‑regulated adminis tration of justice was known ; that the disability rested on the same principle which dictates that a person cannot be both judge and party and serve two masters ; that he who is entrusted with the interest of another cannot be allowed to snake the business an object to himself, because, from the frailty of human nature, one who has power will be too readily seized with the inclination to serve his own interest at the expense of those for whom he is entrusted ; that the danger of temptation does, out of the mere necessity of the case, work a disqualifica tion because nothing less than incapacity is able to shut the door against temptation where the danger is imminent and the security against discovery great ; "that the wise policy of the law had therefore put the sting of disability into the temptation, as a defensive weapon against the strength of the danger which lies in the situation."
42. In the case cited above the purchaser was an officer of the Court entrusted with certain duties, one of which was to supply information which became the basis for fixing the upset price' of the estates sold. There was no direct connection between the Company which owned the estates and this officer of the Court, but it was held that his duty required good faith towards the Company. From the very nature of this officer's duty a fiduciary relationship was inferred and the ratio decidendi was that nobody should be allowed to put himself in a position where his duty and interest come into conflict and to gain any advantage thereby. It is significant to note that in this case the appeal by the Company succeeded and the decision of the Courts below was upset.
43. It is well‑settled that persons in fiduciary relationship cannot be allowed to take advantage of the breach of their obligations by virtue of such relationship. We may quote the following passage from Kerr on "Fraud and Mistake" by Donnell and Monroe, 7th Edition, at page 195:
"If the relation between the parties is one of a fiduciary nature, transaction between them are watched by the Court with more than ordinary jealousy. The duty of a person who fills a fiduciary position being to protect the interests which are confided to his care, he may not avail himself of the influence which his position gives him for the purposes of his own benefit, and to the prejudice of those interests which he is bound to protect. It is a rule of enquity that no man can be permitted to take a benefit where he has a duty to perform which is inconsistent with acceptance of the benefit."
Section 88 of the Trusts Act, 1882, reads as follows:
"Where a trustee, executor, partner, agent, director of a company, legal adviser, or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person so bound enters into any dealings under circumstances in which his own interests are, or may be, adverse to those of such other person and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained."
In the aforesaid section the phrase, "or other person bound in a fiduciary character to protect the interests of another person", clearly indicates that the category of persons enumerated in the section is by no means exhaustive, Furthermore, the following provision "or where any person so bound enters into any dealings under circumstances in which his own interest are, or may be, adverse to those of such other person and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained", clearly applies to the facts of the present case.
44. In Kerr's book, as mentioned above, at page 223, the learned Author observes as follows:
"The principles which govern the case of dealings of persons standing in a fiduciary relation apply generally to the case of persons who clothe themselves with a character which brings them within the range of the principle. A man who possesses the confidence of another will not be allowed by a Court of equity to take advantage of that situation, although the relation of solicitor and client or principal and agent be not strictly constituted between them".
45. It is, therefore, patent that the category enumerated in section 88 of the Trusts Act, 1882, as indicated in the section itself, is not exhaustive. From the extracts of the said section quoted above and also from the passage in Kerr's Book, noted in the preceding paragraph, it is clear that the principles governing the dealings of a trustee or a person clothed with a fiduciary character "apply generally to the case of persons who clothe themselves with a character which brings them within the range of the principle". In the case before us Mokshada Babu, in breach of his duty to inform Monmohan Babu of the impending sale as a result of the decree obtained by the Chittagong Munici pality, himself purchased the property at the said sale in a surreptitious manner. Mokshada Babu has clearly brought himself within the mischief of the said principle.
46. This principle, upon which a constructive or resultant trust arises, rests on the proposition, as stated above, that a person is not allowed to place himself into a position where his duty and interest would clash and, in breach of such duty, to gain an advantage over another to whom he owes such duty. This principle has been clearly set out in the leading case of Nugent v. Nugent (L R (1908) 1 Ch, D), where it was held that a receiver appointed by the Court cannot purchase the property of which he is receiver, without the leave of the Court, even where the sale is made, not in the action in which he was appointed, but by a mortgagee selling with leave outside the auction. In answer to the contention that the purchase was fair and above board in the light of the facts and circumstances of the case, Cozens‑Hardy has observed, at page 549 of the report, as follows:
"I think we ought to decline to go into that, because when once we arrive at this point, that the doctrine of the Court does not depend on the fact of undue knowledge, but merely on the probability of it, and that the man is in a position where his duty and interest are in conflict, we ought not to consider whether under the special circumstances of the particular property, there is any great probability of fraud."
Fletcher Moulton L. J., has observed (in the same case) as follows:
"I am of the same opinion, there is no doubt as to the general principle which actuates the Court in deciding its procedure in matters of this kind. It is that nobody must allow himself to get into a position where his interest conflicts with his duty."
The same principle has been applied to the relationship between a lawyer and his client, a manager of the property and its owner, and agent and his principal, the promoters of a company and the company itself, and joints tenants inter se. The list is by no means G exhaustive. The principle is applied to various other relationships which are not strictly those of a trustee and the beneficiary of the trust or directly fiduciary in character. The underlying principle being that an advantage gained by a person, who has got into a position where his duty clashes with his interest, is not counten anced by a Court of equity.
47. In the case before us, whatever may be the contractual rights and obligations between the parties, the law imposed upon Mokshada Babu a duty to inform Monmohan Babu about the impending sale of the property in execution of the decree obtained by the Chittagong Municipality. Mokshada Babu, as a lessee, was put in possession of the suit property by the lessor, Monmohan Babu, who had a right to expect that the lessee (Mokshada Babu) would faithfully discharge his duty, as enjoined by section 108 (n) of the Transfer of Property Act. In this connection, the lessor reposed confidence in the lessee that the latter would loyally K discharge his obligation and there can be no manner of doubt that in fulfillment of this obligation a position of trust and responsibility is created between the parties to the extent of the obligation imposed by law.
48. We hold that from the evidence and circumstances of this case it appears that Mokshada Babu never informed Monmohan Babu about the sale and that it was his duty to do so by virtue of the provisions of section 108 (n) of the Transfer of Property Act, as quoted above.
49. In these circumstances, the purchase by Mokshada Babu of the suit property at the said auction sale would ensure to the benefit of Monmohan Babu who would be required to pay the purchase money to Mokshada Babu. A constructive trust would arise in favour of Monmohan Babu upon principles stated above.
50. In this connection, we would like to quote the observa tions of Sir John Leach, M.R., in the case of Grover v. Hugell (27 R R 103): cited in the judgment that was delivered in Monohar Mookerjee's case (24 C W N 478). Sir John Leach, M.R., in that case had to deal with a case where, on the sale for redemption of land tax of the glebe of a rectory, the rector himself had become the actual purchaser in the name of his curate. It was held that the sale could not be sustained in a Court of equity, and observed as follows:
"The general rule in equity is that a man cannot place himself in a situation in which his interest conflicts with his duty. The duty of the rector, was to obtain the best possible price for the land sold; and his interest as purchaser was to pay the least possible price. It is no answer to say that the superintendence of the Commissioners would secure a full price. The sale is to be by public auction and before two of the Commissioners or some person appointed by them; and their approbation of the sale is required by the Act; but still the duty of the rector was to give his aid to the procuring of the best possible price."
51. Another aspect of the case is that Mokshada Babu having committed a breach of obligation under the aforesaid section, surreptitiously purchased the suit property which was a collusive transaction. Mokshada Babu persuaded other bidders to refrain from bidding and he himself purchased a valuable property at a grossly inadequate price and a nominal sum of money. He had himself offered to purchase the same from Monmohan Babu at a price of Rs. 5,000, and, at the auction sale, he purchased the property at Rs. 210 only. Thereafter, it is evident that he kept his purchase a close secret. For over eight years he never applied for mutation of his name in the municipal assessment roll. It was only when the plaintiff had deposited a sum of Rs. 2,500 and started a miscellaneous case in 1944 that he took steps to mutate the name of his wife, Monorama Kanungoe, in the said roll. In this fashion he tried to cover his track.
52. We have already held that Mokshada Babu purchased the suit property in the benami of defendant No. 5, Bhagabati Charan Dasgupta, in order to hide his collusive sale. Thus the purchase by Mokshada Babu of the suit property at the said sale is tainted with fraud. In this view of the case also, we hold that the purchase of the property by Mokshada Babu in the aforesaid circumstances raised a constructive trust. in favour of Monmohan Bubu.
53. It is well‑settled that a similar case of constructive trust will arise, when a property is acquired by fraud, in favour of the owner of the property so defrauded.
54. In Underhill's "Law of Trusts and Trustees", 10th Edition, by White and Wells, in the chapter dealing with construc tive trusts of gains made by persons in fiduciary position, the following para. at page 211 of the Book may be quoted:
"Upon similar principles, a Court of equity converts a party who has obtained property by fraud into a trustee for the party who is injured by that fraud."
55. Thus, in either view of the case, the purchase of the suit property by Mokshada Babu at the said auction sale will not prevail against Monmohan Babu. A constructive trust will arise in favour of Monmohan Babu (a) because it was purchased by Moksbada Babu in breach of his duty to inform his lessor, Monmohan Babu, of the impending sale when he came to know of it and alternatively (b) because the said purchase by Mokshada Babu is tainted with fraud and collusion.
56. We shall now discuss another contention of Mr. Hamidul Huq Chowdhury, namely, that the purchase of the suit property by Mokshada at the auction sale would be treated as accession to the charge created on the said property in terms of the award, Exh. 5 (a), and the equity of redemption held by Monmohan Babu will not be allowed to be defeated by such purchase. Monmohan Babu will, however, be made to pay the purchase money to Mokshada Babu. He has relied on to he provisions of section 63 of the Transfer of Property Act, which also apply to a property which is subject to a charge, Section 63 of the transfer of Property Act, inter alia, reads as follows
"Where mortgaged property in possession of the mortgagee has during the continuance of the mortgage, received any accession, the mortgagor, upon redemption, shall, in the absence of a contract to the contrary, be entitled as against the mortgagee to such accession."
He has also relied on the provisions of section 90 of the Trusts Act, which runs thus:
"Where a tenant for life, co‑owner, mortgagor or other qualified owner of any property, 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 gamed, but subject to repayment by such persons of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advan tage."
57. The substance of the argument is that Mokshada Babu was, in fact, in possession of the suit property which was subject to a charge created by the said award and that, taking advantage of his position as a charge‑holder in possession of the property, he purchases the property which, in such circumstances as stated above, will be treated as accession to the charge.
58. We have already noticed that at one stage Mr. Pal argued that the award had created a mortgage in favour of Mokshada Babu, Mr. Hamidul Haq Chowdhury replied by saying that, if the award created a mortgage, then his contention would apply with greater force to the purchase of the property by Mokshada Babu.
59. In view of our findings as recorded above, it is unneces sary to decide this contention advanced on behalf of the appellant.
60. In passing, we may state that the purchase of the superior interest in the suit property by Monorama Kanungoe (defendant No. 4) from Saleh Ahmed Choudhury would not affect the right, title and interest of Monmohan Babu in the said property.
61. Finally, we shall dispose of the question of limitation. Inasmuch as we have held that the award, Exh. 5 (a), created a charge over the said property in respect of the sum of Rs. 2,500, i.e., the advance money which was paid to Monmohan Babu, and, furthermore, as we have held that the purchase by Mokshada Babu of the suit property at the suction sale raised a constructive trust in favour of the plaintiff's predecessor‑in‑interest, we do not think that it can be seriously contended before us that the suit is barred by the law of limitation. It was also conceded by Mr. Pal on behalf of the contesting respondents that, if it was held that a charge was created over the property by the award: and also if it was further held that there was a constructive trust in favour of Monmohan Babu, no question of limitation would arise.
62. This disposes of all the points raised before us on behalf of the parties, both in the appeal as well as in the cross -objection.
63. The result, therefore, is, that this appeal is allowed; the judgment and decree passed by the learned Subordinate Judge are hereby set aside. The plaintiff's suit is decreed as against defendant Nos. I to 4 and his raiyati right by purchase of the suit property is hereby declared. The plaintiff will get khas possession of the suit property after depositing in Court a sum of Rs. 300 (three hundred rupees) which will cover the amount of money that was paid by Moksha Babu to purchase the suit property at the auction sale plus costs incidental thereto. The plaintiff will get the costs of the appeal as those of the Courts below against contesting parties.
The cross‑objection is hereby dismissed but without any order as to costs.
S. B./A. H.
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