JUDGMENT Jenkins, C.J. - Appeal No. 27. This is an Appeal under cl. 15 of the Letters Patent from a decision of Mr. Justice Nalini Ranjan Chatterjea. He has not finally decided the rights of the parties but has remanded the case, because it appeared to him that the treatment of the case by the lower Appellate Court was unsatisfactory. Stated shortly, the case is this: The Plaintiff claims a sate in land and claims that share notwithstanding that there has been a revenue sals which apparently extinguished her title. The ground on which the Plaintiff claims as against the Appellants in the two Appeals before us is the Appellant in Appeal No. 27 of 1911, Defendant No. 1, a defaulting sharer with the Plaintiff, can only hold the property purchased by him at the revenue sale subject to a trust in favour of the Plaintiff to the extent of her share. As against the Appellants in Appeal No. 28, that is Defendants Nos. 2 and 3, it is claimed that they are merely benamdars for Defendant No. 1. The Munsif affirmed the Plaintiff's claim and passed a decree in her favour, whereby in effect he declared the Plaintiff's title to a share in the land, awarded the Plaintiff khas possession of khas lands and possession through tenants of tenanted lands, and also decreed wisilat. 2. The lower Appellate Court reversed that decree, and Mr. Justice Chatterjea before whom the case came on appeal was, as I have indicated, dissatisfied with the treatment of the case by the lower Appellate Court. 3. The gist of Mr. Justice Chatierjea's judgment is that where a revenue sale is caused by the default of a co owner and the property is afterwards purchased at that revenue sale by that co-owner, there may be such relations between the defaulter and his co-owner, as would make it right for the Court to treat such a sale as made for the benefit of both. He indicated in his judgment certain conditions under which (in his opinion) some such right would arise. Doubtless, he did not intend that to be an exhaustive list of the circumstances that would lead to such a result, nor is it our purpose to indicate at this stage what the circumstances are that may lead to such a result. He indicated in his judgment certain conditions under which (in his opinion) some such right would arise. Doubtless, he did not intend that to be an exhaustive list of the circumstances that would lead to such a result, nor is it our purpose to indicate at this stage what the circumstances are that may lead to such a result. But we hold that there may be such circumstances, and that in this case there may be circumstances which would make the decree passed by the Munsif a right and proper decree. We have been confronted with the decision in Doorga Singh v. Sheo Pershad Singh (1), and also a decision of the Court of Appeal in England in Biss v. Biss [1903] 2 Ch. 40, 57, as well as a decision of the House of Lords in Kennedy v. De Trafford [1897] A.C. 180, all of which no doubt do give colour to the view that ordinarily there is no fiduciary relation between co-tenants. So far as the English cases are concerned, they hardly would be a safe guide for us to follow in this country, because the relations that exist between co-tenants in England and the consequences of those relations are very different from those which obtain in this country. But, no doubt, every respect is due to the decision in Doorga Singh v. Sheo Pershad Singh ILR 16 Cal 194 (1889), though it has to be borne in mind that two Benches of this Court have in unreported decisions [Chowdhury Ram v. Chowdhury Pawan Sinse reported 18 C.L.J. 87 (1997), Janki v. Drbi 15 C.W.N. 776 (1910)] questioned the accuracy of the law as laid down in Doorga Singh v. Sheo Pershad Singh ILR 16 Cal 194 (1889), if pushed to its extreme limits. It has been indicated and, doubtless is true, that the rule which the Plaintiff seeks to invoke and enforce in this case is one resting on public policy, and what may be excellent public policy in England may not be such excellent public policy for India and vice versa. Now, we do and as a matter of fact that the Legislature in India has dealt with this matter in the Trusts Act in a manner which wholly disagrees with the view of public policy taken in the English cases to which we have been referred. Thus in sec. Now, we do and as a matter of fact that the Legislature in India has dealt with this matter in the Trusts Act in a manner which wholly disagrees with the view of public policy taken in the English cases to which we have been referred. Thus in sec. 90 we have a provision in regard to the advantages gained by a qualified owner and it is there enacted that where a qualified owner of any property avails himself of his position as such and gains an advantage in derogation of the rights of other persons interested in the property, he must hold, for the benefit of all persons so interested, the advantage so gained. Qtalified owners are not limited to tenants for life or mortgagees but include expressly co-owners, and there is a specific illustration to that section which shows the way in which-a co-owner may be affected by this rule. I do not say that the Trust Act applies here: but it is useful as indicating what is the rule of public policy in he in the view of the Legislature, and it must be borne in mind that though the Act does not at present apply, it may be made applicable to this Presidency if thought fitter. All this shows that there may be circumstances in which public policy in this Presidency would demand that a co-owner should hold an advantage which he has obtained in derogation of the rights of other persons interested in the property, for their benefit as well as his own. Whether or not the doctrine governs the rights of parties in particular cases must depend upon facts as found and it is for that reason that Mr. Justice Chatterjea has refused to accept the judgment of the lower Appellate Court and considered that the case had not been adequately treated. Whether or not the doctrine governs the rights of parties in particular cases must depend upon facts as found and it is for that reason that Mr. Justice Chatterjea has refused to accept the judgment of the lower Appellate Court and considered that the case had not been adequately treated. There is an obvious illustration of this furnished by the judgment:-I refer to that passage where the learned Judge says of the Plaintiff that she had declared that she had been all along in possession of the property by receipt of its usufruct and then goes on to say "If this be true, it was her duty to pay the share of the revenue payable for the property to save it from sale." He should have found as a fact what the position was and not have based the conclusion on an assertion by the lady which was denied by her opponent; and, similarly, it would be wrong to accept as correct, even from a legal point of view, the reasoning of the learned Judge as to the relations between Defendant No. I and the alleged benamdars. For these reasons I think that Mr. Justice Chatterjea was perfectly justified in the course he took. There must be a clear finding on all material facts, and when I say this, I bear in mind what has been said to us by the Appellant, Defendant No. 1, that a part of his case has not been dismissed at all by the lower Appellate Court If that be so, then obviously it must be considered and discussed on the further hearing of the appeal, if it becomes necessary and relevant. I will be now for the lower Appellate Court to which this case must go in accordance with the judgment of Mr. Justice Chatterjea, to determine not as suppositions but as actual facts all that is relevant to this case on the materials upon the record and having determined those facts to apply the appropriate law to them in the light of the remarks which have been made. 4. In this view of the case we must dismiss the Appeal with costs. There will be the same order in Appeal No. 28.