This appeal is by the defendants and is directed against the decision of Sri M. K. Barkataki, the then Additional District Judge, Lower Assam Districts who, on appeal, affirmed the deci­sion of Mr. D. N. Hazarika, the then Subordinate Judge. (2) The appeal was originally placed for hear­ing on 7-7-53 before Deka J. sitting singly. At the instance of the learned Judge, it was then put up for hearing before a Division Bench of the Court presided over by Ram Labhaya and Deka JJ. who after hearing the appeal reserved judgment of 16-11-53. They finally delivered separate and differing judgments on 11-5-54. Ram Labhaya J. was of the opinion that the decree of the lower appellate court should be maintained and the appeal should be dismissed. Deka J. however, thought that the appeal should be allowed and the case should be remitted to the lower appellate court for re-hearing of the appeal on merits. In the result, on account of the difference, the appeal had to be heard by me. (3) It would appear that the case itself has a long and languid career. It arises out of a suit instituted as early as January, 1945. The appeal before this Court itself has been pending since November, 1951 and has already taken about three years in its disposal. These considerations, there­fore, have to be kept in view in deciding the ap­peal. Even if the facts and circumstances warrant­ed it, I would much rather exercise my powers under S. 103, C. P. C. than suffer the risk of fur­ther prolonging the litigation which would be in­evitable in case of a remand. I therefore preferred to examine the judgments under appeal indepen­dently for myself before looking into the judgments of my learned colleagues. The learned counsel for the parties have also addressed me elaborately on the points involved in the appeal and have referred to such portions of the judgments of my colleagues as assisted their respective contentions. I have thus had the fullest advantage of examin­ing every aspect of the case. (4) The material facts of the case are rather simple. The learned counsel for the parties have also addressed me elaborately on the points involved in the appeal and have referred to such portions of the judgments of my colleagues as assisted their respective contentions. I have thus had the fullest advantage of examin­ing every aspect of the case. (4) The material facts of the case are rather simple. The plaintiff who is the widow of late Durga Das Bhattacharjya prayed for declaration of her title to certain lands described in the schedule to the plaint covered by Nisfikhiraj Periodic Patta No. 2 of village Nij-Bhabanipur, Mauza Bbabani-pur, She also prayed for permanent injunction re­straining the defendants from interfering with the possession and management of the lands. Briefly put, her case was that her late husband was co-sharer proprietor of many mahals, including the disputed lands, covered by several joint pattas, Gopinath Choudhury since dead, the predecessor-in-interest of the defendants was the agent and Am-Mokhtar appointed by her late husband and as such, the said Gopinath collected revenue and rent, looked after the management of the lands and con­duct of suits relating to the said mahal, while plain­tiff's husband spent most of his time abroad Due to joint pattas and jealousy amongst the co-sharers, the revenue of the lands often fell into arrears and the mahals were frequently put up to auction sale. Under such circumstances, the dis­puted mahals along with others were put tip to sale in 1935 for arrears of revenue. The plaintiff decided to purchase the mahals through Gopinath, her husband's agent, who was considered to be am old and reliable servant. For this purpose, she gave Gopinath sufficient funds; and on 4-11-35, the disputed mahal along with other mahals was sold in auction and purchased for the plaintiff and by her money. The latter being a Pardanashin lady could not personally bid at the auction sale which was done by the agent Gopinath for her. After the auction purchase, Gopinath Choudhury conti­nued to manage all the affairs of the mahal regard­ing collection and payment of revenue, etc., in plaintiff's name and paid land revenue out- o{ plaintiff's money. He also collected rent of the lands from the tenants on plaintiff's behalf. Plaintiff's husband died in 1347 B.S. correspond­ing to sometime in 1940, but even after his death, Gopinath continued to manage all the estates as agent of the plaintiff as before. He also collected rent of the lands from the tenants on plaintiff's behalf. Plaintiff's husband died in 1347 B.S. correspond­ing to sometime in 1940, but even after his death, Gopinath continued to manage all the estates as agent of the plaintiff as before. Since the pur­chase of the mahals, Gopinath didvnot submit any account or other papers relating to them. The plaintiff suspected that he was not playing fair and therefore demanded accounts and other documents from him in 1348 B. S. After repeated demands, some papers were recovered but owing to his atti­tude in not rendering accounts, plaintiff dismissed Gopinath and appointed a new Am-Mokhtar to look after the properties. In a criminal proceed­ing started against Gopinath, the police also le-covered some papers and documents relating to the mahal. The new Am-Mokhtar found that Gopi­nath had misappropriated large sums of money both out of her and her husband's properties. It was also found that while making the purchases of the mahals, Gopinath had fraudulently purchas­ed the disputed lands in his own name and got his name mentioned in the sale certificate and mutat­ed in revenue records without plaintiff's knowledge. Meanwhile, Gopinath who was bed-ridden and ill, died in Chaitra 1348 B. S. Plaintiff applied for mutation of her name in respect of the disputed lands on 4-2-42 when she came to know of the fraudulent acts of Gopinath but the application was resisted by the defendants who set up title in Gopinath by virtue of the sale certificate in his name and defendant No. 1, the widow of Gopinath herself applied for mutation on 13-3-42 on the basis of a deed of gift in her favour said to have been executed by her late husband. The Revenue Courts eventually dismissed both the mutation applications. On the above facts, the present suit was filed by the plaintiff for the reliefs aforesaid. She claims that she is the real owner of the suit lands for whom and out of whose funds the lands were pur­chased by her agent, Gopinath, at the auction sale; and that even after the purchase, the rents were collected on her account by Gopinath from tenants who had attorney to the plaintiff. She claims that she is the real owner of the suit lands for whom and out of whose funds the lands were pur­chased by her agent, Gopinath, at the auction sale; and that even after the purchase, the rents were collected on her account by Gopinath from tenants who had attorney to the plaintiff. Gopinath even paid land revenue for the lands out of plaintiff's money; but the fact of the purchase having been made in his own name, was fraudulently conceal­ed from the plaintiff until it was discovered on 4-2-42. (4a) In their written statement, the defendants did not specifically deny the averment of the plain­tiff that Gopinath was the agent or Am-Mokhtar of plaintiff's husband and used to manage the mahals in which her husband was interested as co-sharer and make collections of rent and revenue; nor did they specifically deny the allegation that even after the purchase, the said Gopinath conti­nued to look after the management of plaintiff's estate. They, however, traversed the other alle­gations of the plaintiff. They stated that on 4-11-35 at the auction sales, various other mahals were purchased for the plaintiff through her pleader Debendranath Uzir and they denied that plaintiff gave any money to Gopinath for purchase of the disputed lands. They claimed that the lands were purchased by Gopinath for himself and out of his own funds and that after his purchase, he was in possession in his own rights and realised rent from tenants. He later made a gift of the lands in favour of his wife before he died. They contended that plaintiff had all along knowledge of these facts and nothing was concealed from her. They also pleaded that the suit was barred by limitation and was not maintainable under S. 86, Assam Land and Revenue Regulation and S. 42, Specific Relief Act. (5) On the above pleadings, various issues were framed, the most material of which was the fourth issue bearing on the question of title and which ran as follows: "Whether the lands in suit were purchased by Gopinath with his own money or with plaintiff's money and for her but fraudulently in his name." It was suggested that the frame of the issue wrongly places the onus on the defendants and thereby vitiates the decision of the two courts below in assessing the value of the evidence. The sugges­tion in my opinion is evidently without any subst­ance. The issue does not place the onus of proof on the defendants nor has the question of onus prejudiced the judgments under appeal. As I shall show later, both the courts below were fully con­scious of the legal position that the burden of prov­ing that the purchase had been made by Gopinath, as an agent for the plaintiff and that the former fraudulently made the purchase in his own name and concealed the fact from the plaintiff was entirely on the latter; but at the same time when evidence had been led by both sides, the courts were en­titled to consider the entire evidence bearing on the points involved instead of merely resting on the abstract doctrine of onus of proof. The two courts below have concurrently found for the plaintiff on all the issues raised and against the case of the defendants and accordingly decreed the suit. (6) Mr. Ghose for the appellants has tried to assail the judgments under appeal on various grounds. The questions of law raised by him may be conveniently disposed of at the outset. He con­tends that the suit is barred under S. 86, Assam Land and Revenue Regulation. The section runs thus- "The name of the purchaser to be entered in the certificate shall be that of the person declared at the time of sale to be the actual purchaser, and any suit brought in a Civil Court against the certi­fied purchaser on the ground that the purchase was made on behalf of another person not the certified purchaser, though by agreement, the name of the certified purchaser was used, shall be dismissed with costs." Mr. Ghose argues that the name of Gopinath was admittedly entered in the sale certificate. As such, he should be declared to have been the actual pur­chaser at the time of sale and no suit would lie in a Civil Court against the certified purchaser for a declaration of title on the ground that the purchase had been made on behalf of another. It is submitted that even assuming that Gopinath made the purchase fraudulently in his own name, no suit would lie at the instance of the plaintiff to displace the title of the certified purchaser and the remedy of the plaintiff, if any, was to sue for damages. I am unable to subscribe to these pro­positions. It is submitted that even assuming that Gopinath made the purchase fraudulently in his own name, no suit would lie at the instance of the plaintiff to displace the title of the certified purchaser and the remedy of the plaintiff, if any, was to sue for damages. I am unable to subscribe to these pro­positions. The Court would be astute to adopt such an interoperation of S. 86 and attribute an intention to the legislature which would obviously have the effect of encouraging fraud on the part of bidders at auction sales. The argument apparently ignores the significance of the words "though by agreement, the name of the certified purchaser was used". These words clearly signify that where the real owner is a party or privy to the arrangement and by his consent the name of the citified purchaser was used in the sale certificate, then a suit will not lie at his instance for a declaration that the purchase was on his behalf and that the certified purchaser was not the actual purchaser at the sale. In other words, the section mainly bars suits of a benami character and not suits where the cause of action is based on the fraud of the opposite party. If the intention was to exclude all suits irrespective of any question of fraud, as Mr. Ghose would have us accept, then the said words would not have been found in the section at all and would be in fact quite redundant. Mr. Ghose urges that the words have no significance except merely to emphasise that the suit would be barred 'even though' by agreement the name of the certified purchaser was used. In the first place, the words 'even though' are not there. In the second place, I do not see why the legis­lature would emphasise on any particular kind of suit when the intention was to exclude all suits, even those where the purchase had been fraudu­lently effected by the certified purchaser in his own name and without the knowledge of the real pur­chaser. I agree that the section is not very precisely worded but its language should be construed as a whole so as to give effect to all the words used therein and not render nugatory an important part of the section. I agree that the section is not very precisely worded but its language should be construed as a whole so as to give effect to all the words used therein and not render nugatory an important part of the section. The words "though by agreement, the name of the certified purchaser was used" in my opinion furnish the key to the meaning of the section. Besides the section constitutes a plea in bar and must be strictly construed so as not to enlarge its scope and operation. There may be a variety of legal relations subsisting between the real owner and the so-called auction purchaser on which the section cannot operate. For all these reasons, it appears to me that the section merely debars suits against a benami purchaser where ad­mittedly the claimant had agreed to the name of the certified purchaser being used and not suits based on allegations of fraud. Mr. Ghose suggests that if the intention of S. 86 was to exclude cases of fraud from its operation, there would have been some such provision in that section as Sub-s. (2) of S. 66, C. P. C., the absence of such a provision indicates that even cases of fraud would be barred under the section. There is no doubt that S. 66, C. P. C., (Act 5 of 1908) is very precisely worded and does not leave any room for doubt. But it is interesting to notice in this connection a decision in - 'Mt. Koosumba v. Tufuz-zul Hossein', 13 Suth WR 85 (A). This decision proceeds upon the interpretation of S. 260 of Act 7 of 1859 which is couched in almost identical terms as S. 86, Assam Land and Revenue Regu­lation. It was held there that S. 260 of the Act could not prevent the entertainment of a suit where the name of the certified purchaser was not used "by agreement" but was inserted in the certificate by fraud on the part of the defendant and contrary to the wishes of the parties. This decision in my opinion is a correct pointer to the in­terpretation of S. 86 also. Another decision to which reference may be use­fully made in this context is the one in - 'Raj Chunder v. Dina Nath', 2 Cal WN 433 (B). This was given with reference to S. 36, Revenue Sale Law. This decision in my opinion is a correct pointer to the in­terpretation of S. 86 also. Another decision to which reference may be use­fully made in this context is the one in - 'Raj Chunder v. Dina Nath', 2 Cal WN 433 (B). This was given with reference to S. 36, Revenue Sale Law. The words "though by agreement, the name of the certified purchaser was used" also occur in S. 36; and the language of the section is other­wise very similar in essential particulars to that of S. 86 here. The majority of the Judges in that case held that the section should be strictly con­strued and it could not be held to bar a suit which was based upon the fraud of the defendant. The very lucid observations of Amir Ali J., deserve repe­tition: "To my mind, to apply the provisions of S. 36, to such a state of facts would cause disastrous results. It would promote the grossest frauds on the part of agents and servants who, as it is perfectly well known, are employed in this coun­try for making purchases for their masters. I cannot believe that the Legislature could ever have intended to throw the aegis of protection over the frauds of agents and trustees, for that must be the result if the section is applied in the way contended for by the appellants. To my mind, it will disorganise business relations and render it well nigh impossible for absent princi­pals to make purchases through agents. For myself, I think that S. 36 must be construed strictly and that its application ought to be con­fined to cases where no question arises of the certificate having been obtained in the name of any person other than the real purchaser by a fraudulent act or devise or for the furtherance of some fraudulent purpose." I am therefore amply fortified by these decisions in the view which I have taken of the true mean­ing and scope of S. 86, Assam Land and Revenue Regulation. The decision of this Court in - 'Niamat Ali v. Abdul Gafur', Second Appeal No. 14 of 1950, D/- 11-4-51 (Assam) (C), on which Mr. Ghose relies is altogether besides the point: I can­not therefore entertain the plea that the present suit is barred under that section. (7) The plea in bar under S. 42, Specific Relief Act is equally futile. Mr. Ghose relies is altogether besides the point: I can­not therefore entertain the plea that the present suit is barred under that section. (7) The plea in bar under S. 42, Specific Relief Act is equally futile. Mr. Ghose urges that there being no prayer for possession by the plaintiff, the suit for a declaration only should be dismissed. The plaintiff in this case has sued both for a declaration and for a permanent injunction to restrain the defendants from interfering with her possession and management of the disputed lands. Admittedly, these lands are in occupation of tenants who pay rent to the person entitled. The defendant also is not in direct occupation or pos­session of the lands. The only question is of col­lection of rents from the tenants. Plaintiff's case was and that is also the finding of the courts below that the tenants paid rent to the plaintiff and Gopinath as her agent made collection of rent from the tenants. That being so, a declaration of title and grant of injunction would be effective remedies and there is no reason why the plaintiff should have prayed for any other relief. It was pointed out by Lord Thankerton in - 'Sunder Singh Mallah Singh Sanatan Dharam High School Trust, Indaura v. Managing Committee, Sunder Singh Mallah Singh, Rajput High School, Indaura', AIR 1938 PC 73 (D), approving the deci­sion of the High Court that when the defendants were not in possession or in a position to deliver possession of the disputed properties to the plain­tiffs there was no further relief available to the latter. His Lordship further added that where it is not open to the plaintiff to pray for possession also as against the defendant, injunction is further relief within the meaning of the proviso to S. 42, Specific Relief Act. The plea therefore has been rightly rejected by the courts below. (8) It is next contended that the suit is barred by limitation under Art. 120, Limitation Act be­cause the plaintiff was ever since the date of pur­chase aware of the fact that the purchase had been made by Gopinath. Plaintiff on the contrary stated that her cause of action arose on 4-2-42, the date on which she came to know of the fraudulent act of Gopinath. The plaint in the suit was filed on the 27-1-1945 even within three years of the date of knowledge. Plaintiff on the contrary stated that her cause of action arose on 4-2-42, the date on which she came to know of the fraudulent act of Gopinath. The plaint in the suit was filed on the 27-1-1945 even within three years of the date of knowledge. If the plaintiff succeeds in proving fraud as she did in the Courts below, then appa­rently, the suit is well within time. Indeed, if Gopinath was found to be guilty of fraud in not disclosing the fact to the plaintiff that the disputed lands had been purchased and later mutated in his own name then the onus would lie on the defen­dants to show that the plaintiff had clear and defi­nite knowledge of the facts and the onus would not be successfully discharged even by showing that the plaintiff had means available to him for coming to know of the fraud. The plaintiff would then be entitled to the fullest advantage of S. 18, Limi­tation Act and time would begin to run against him from the date of knowledge or discovery of the fraud. This view of the law is well settled; vide - 'Rahimbhoy Hubibbhoy v. Charles Agnew Turner', 20 Ind App 1 (P. C.) (E) and - 'Sm. Swarnamoyee Dasi v. Probodh Chandra Sarkar', AIR 1953 Gal 253 (F). Mr. Ghose, however, contends that the court of appeal below has not decided the question of fact whether the plaintiff actually discovered the fraud on the date alleged, when dealing with the point of limitation. This is undoubtedly so; but it ignores the position that the question of fraud formed the subject of a separate issue which is dealt with by the court below under point No. 4 of his judgment. Under that head, the court found that the subse­quent conduct of Gopinath in keeping the matter of the issue of the sale document in his name, in obtaining mutation secretly, and also his attempt to lead the plaintiff and the world to believe that the property belongs to the plaintiff was sufficient proof of his fraud. Under that head, the court found that the subse­quent conduct of Gopinath in keeping the matter of the issue of the sale document in his name, in obtaining mutation secretly, and also his attempt to lead the plaintiff and the world to believe that the property belongs to the plaintiff was sufficient proof of his fraud. This was presumably done with the idea that by lapse of time, his fraud will be sufficiently deep-seated to earn him the suit property." If this finding is correct, then evidently, the fact of purchase in his own name as also the fact of mutation was concealed from plaintiff by Gopinath until she discovered it as alleged. These conten­tions therefore do not appeal to me. (9) The most serious argument of Mr. Ghose is that on the issue of the rival claims of the parties to the land in suit, there was a large volume of oral and documentary evidence, which has not been independently examined by the court below, which was the final court of facts. He contends that this was the main point in the case and even if the learned Additional District Judge purported to affirm the decision of the trial Court, it was his clear duty to discuss the evidence properly in arriving at the relevant findings. That not having been done, the case according to the learned counsel should be remitted to the Judge below for a proper adjudi­cation of the appeal. This argument appealed to Deka J., and appears to have been provoked by the shortness and brevity of the judgment under ap­peal, particularly in regard to its discussion on point No. 4 mentioned in the judgment which refers to the relevant topic. The judgment of the trial Court shows that it has dealt with the evidence, both oral and docu­mentary, in great details. The appellate court, of course, does not discuss the evidence to the same extent. I should not be, however, understood to imply that it is the duty of the appellate court to give every detail of the evidence, on which the parties seek to rely, in its judgment. The appellate court, of course, does not discuss the evidence to the same extent. I should not be, however, understood to imply that it is the duty of the appellate court to give every detail of the evidence, on which the parties seek to rely, in its judgment. It is' undoub­tedly well settled that even when affirming the deci­sion of the court below, the appellate court which is the final court of facts must independently weigh the evidence of parties and must do so with a clear consciousness of the relevant points which arise for adjudication and the bearing of the evidence on those points. It is, however, no part of its duty to encumber the judgment with unnecessary details, so long as the broad facts emerging from the evi­dence which help the court in forming its conclu­sions are found to be there. The judgment under appeal, in my opinion, stands the tests indicated above. At the outset, the learned Judge below gives an analysis of the admitted or proved facts which he details as follows: (i) that Gopinath Choudhury was a trusted servant of plaintiff's husband; (ii) that plaintiff provided Gopinath Choudhury with funds for the purpose of purchasing in her own name at auction sale various mahals, in which her husband was interested as a co-sharer; (iii) that there were revenue sales held on 4-11-35 of the said mahals including the disputed mahal; (iv) that on that date four or five estates were actually purchased by Gopinath Chou­dhury in the name of the plaintiff; (v) that the rele­vant records of plaintiff's lands were kept under the care and custody of Gopinath Choudhury; (vi) that as evidenced by these documents, collections from tenants on the suit lands were entered in the plaintiff's books of accounts; (vii) that Government revenues were paid out of plaintiff's funds; and (viii) that rent receipts were issued in plaintiff's name. Save for small variations, I have tried to repro­duce these details in the language of the learned Judge himself. None of these facts narrated above have been challenged by Mr. Ghose and it is not his case that these facts are not supported by any evidence on record. Save for small variations, I have tried to repro­duce these details in the language of the learned Judge himself. None of these facts narrated above have been challenged by Mr. Ghose and it is not his case that these facts are not supported by any evidence on record. I may further add that it is also not disputed that plaintiff's husband was inte­rested in the dispued mahal as a co-sharer and plaintiff naturally was as much interested in buying this mahal in her own name as some of the other mahals which Gopinath purchased for her. If the facts stated above are correct, as I have no doubt they are, they unmistakably lead to the inference that Gopinath perpetrated fraud in purchasing the disputed lands in his own name and not in the name of the plaintiff whose agent he was and in concealing these facts from the plaintiff. To prove such a fraud by an agent, it was not necessary to have a registered Arn-Mokhtarnama or to show that there was any conspiracy between Gopinath and the officer holding the sale. Such erroneous assump­tions are wholly out of place and tend to confuse the issue. I am glad to say that even Mr. Ghose has not raised these questions before me. The learned Judge below states in his judgment that he has carefully gone through the evidence oral and documentary. I have no doubt he did so. He then refers to the fact that some of the wit­nesses on the side of the plaintiff were respectable persons and that rent receipts and books of record maintained by Gopinath Choudhury himself and proved to be in his own handwriting left no scope for disputing the finding of the trial Court that Gopi­nath Choudhury purchased the suit lands with plain­tiff's money and apparently led the tenants, plain­tiff and others to believe that the lands were plain­tiff's, all the time concealing the fact of purchase and mutation in his own name. In this connection, the learned Judge below also relied upon the recitals in two documents Exs. 8 and 9 which were sale deeds executed by third parties. These recitals by themselves are not admissible in evidence against the defendants; but Maheshwar, the executants of one of the sale deeds has been examined and his evidence in support of the recitals is certainly ad­missible. 8 and 9 which were sale deeds executed by third parties. These recitals by themselves are not admissible in evidence against the defendants; but Maheshwar, the executants of one of the sale deeds has been examined and his evidence in support of the recitals is certainly ad­missible. In any case, the inadmissibility of the recitals in the other document is not such as to affect the vali­dity or correctness of the findings which rest upon other unimpeachable materials in the case. The decision of the learned Additional District Judge, though brief, is well assimilated and clearly reason­ed and does not suffer from any lack of essential particulars. There is nothing to indicate that in appraising the evidence either the trial Court or the court of appeal below confused the question of onus and misplaced it upon the defendant, though they were perfectly justified in drawing appropriate inferences from the entire evidence placed before them whether it came from the side of the plain­tiff or that of the defendants. The reason why the learned Judge below appears to have been disinclin­ed to make his judgment fuller in regard to his discussion of the evidence is apparently attributable to the fact, which, as he says in his judgment, was that Mr. Ghose himself who argued the appeal before him did not seriously dispute all the findings of fact arrived at by the trial Court. (10) Mr. Ghose, however, urges that even if these facts are accepted, there is no evidence to prove that the necessary amount for the purchase of the disputed lands was paid by the plaintiff and there­fore she is not entitled to the property. He points out that on her own admission, she paid a sum of five to six thousand rupees to Gopinath for making the purchase of the mahals at the auction sales. She does not say that she paid anything more to Gopi­nath on that account. It appears that the value of the mahals which Gopinath, on the date of the sale, purchased in the name of the plaintiff Mt. Ushangini, covered more than six thousand rupees and that accounted for the maximum amount which plaintiff is alleged to have paid to her agent Gopi­nath. That being so, it was open to Gopinath to purchase the disputed land in his own name which was sold for an additional sum of Rs. 1,875/-. Ushangini, covered more than six thousand rupees and that accounted for the maximum amount which plaintiff is alleged to have paid to her agent Gopi­nath. That being so, it was open to Gopinath to purchase the disputed land in his own name which was sold for an additional sum of Rs. 1,875/-. This argument though attractive, will not bear scrutiny. One must not forget in this context that the plain­tiff's husband was admittedly a co-sharer of the disputed mahal and that the plaintiff was as much interested in purchasing this mahal as in the pur­chase of the others; and the further fact that in making these purchases at the auction sale, Gopi­nath Choudhury was acting as an Agent of the plaintiff. This fact of agency was totally denied in the written statement and it was said that someone else bid and made the purchases on behalf of the plaintiff and not Gopinath; but in evidence this case was almost completely abandoned. The admissions of defendant 1 herself on the point are significant. That being so, it has been rightly held that Gopi­nath was acting as an agent of the plaintiff in res­pect of the purchase of all the estates. The plain­tiff, therefore, was entitled to claim from the agent any benefit which may have resulted to him from the transaction. This is perfectly clear from S. 216, Indian Contract Act and the illustration to that section. This section says that if an agent, with­out the knowledge of his principal, deals in the business of the agency on his own account instead of on account of his principal, the principal is enti­tled to claim from the agent any benefit which may have resulted to him from the transaction. Even if the agent had spent his own money over the tran­saction, the plaintiff would still be entitled to the benefit thereof and would have compelled the agent Gopinath to give it to the plaintiff at the price for which it was purchased. The illustration to the section adequately clarifies the point: "A directs B, his agent, to buy a certain house for him. B tells A it cannot be bought, and buys the house for himself. The illustration to the section adequately clarifies the point: "A directs B, his agent, to buy a certain house for him. B tells A it cannot be bought, and buys the house for himself. A may, on discovering that B has bought the house, compel him to sell it to A at the price he gave for it." The section evidently imposes something in the) nature of a penalty upon an agent who acts im­properly by converting himself into a principal without making' due disclosure and the operation of the section does not necessarily depend in any way upon the principal having suffered in any man­ner. This is so because an agent holds a fiduciary i position and acting in that capacity, he makes a profit without disclosing his interests to those per-' sons towards whom, he stands in such a position. He must therefore account to them for the profit which j he makes. It is therefore evident that even if the property had been purchased by Gopinath out of his own funds, the property would still go to the plaintiff subject to the payment of the amount of consideration spent by him. Here, however, the defendants did not make out any such case. On the other hand, they completely denied that Gopinath ever made any purchase on behalf of the plaintiff, which as I said could not be sus­tained on the evidence, undoubtedly Gopinath being the agent of the plaintiff in making this purchase. The learned Additional District Judge in dealing with this point observed that normally, an auction purchaser had got to pay one-fourth of the purchase money on the date of the purchase. The presump­tion therefore was that Gopinath Choudhury paid one-fourth of the amount of consideration for the purchase of all the estates including the disputed estate on that date and the money provided by the plaintiff to him even if the statement is taken at its face value was more than sufficient to cover the one-fourth amount payable in respect of all these estates. He has undoubtedly committed an error in thinking that there was "absence of evidence, that Gopinath Choudhury made the balance payment later on.......................". It is pointed out that there was evidence to show that the balance of the consideration amount was paid within fif­teen days of the date of the purchase. He has undoubtedly committed an error in thinking that there was "absence of evidence, that Gopinath Choudhury made the balance payment later on.......................". It is pointed out that there was evidence to show that the balance of the consideration amount was paid within fif­teen days of the date of the purchase. Even if that were so, the error is not very material. There is substance in the observation of the Judge below that the amount given to the agent, Gopinath was more than sufficient to cover 25 P. C. of the con­sideration which was to be paid on the date of the sale in respect of the estate bought. Even the defendant has not shown that he made the purchase out of his own money which would have put the plaintiff to some equities to reimburse him for the loss. In fact, the trial court with refe­rence to this point observed thus- "I therefore consider that as Gopinath carried plain­tiff's money to purchase land for plaintiff, it was incumbent on defendant 1 to prove from where Gopsaath obtained this amount for his purchase. It will be seen that there is not an iota of evidence on this point. Mere allegation of business, I am afraid, is of no avail, more so as defendant 1 herself admits that Gopinath worked both under plaintiff and her husband." This observation of the learned Subordinate Judge has been criticised by Mr. Ghose as throwing the onus of proof upon the defendants. I do not think SO. Indeed, having regard to the fiduciary character, it was the duty of the defendants to explain and prove whether Gopinath paid the consideration for this purchase from his own pocket which they do not appear to have done; and the Court of fact was entitled to take notice of this circumstance in coming to its decision on the point. Ram Labhaya J., in his discussion of the point has suggested that it was quite possible that Gopi­nath had some money of plaintiff's husband in his hands which along with the amount given to him by the plaintiff satislied the consideration for the purchase of all these estates. Mr. Ghose strongly urges that such an assumption would be altogether speculative. Ram Labhaya J., in his discussion of the point has suggested that it was quite possible that Gopi­nath had some money of plaintiff's husband in his hands which along with the amount given to him by the plaintiff satislied the consideration for the purchase of all these estates. Mr. Ghose strongly urges that such an assumption would be altogether speculative. He argues that the plaintiff herself did not make out such a case and she would not be entitled to take any advantage of any money of her husband in Gopinath's hands when her case was that the property was purchased entirely out of her money. I am not sure that it would be entirely speculative to make such an assumption. There are some outstanding facts in the case which cannot be lost sight of. Firstly, plaintiff's husband was interested in the estates as co-sharer and the defen­dant 1 and Gopinath had been managing on behalf of plaintiff's husband and making collection for him. We also know from the evidence and the findings that he did not render account to either plaintiff or her husband in regard to these sums of money collected by him and the allegation of the plaintiff was that on accounting large sums of money were found due from him. It can therefore be safely assumed that at that time of making the purchase, he had money in his hands belonging to plaintiff's husband and in order to save these properties, the plaintiff wanted to buy the estates in her own name and advanced a suffi­cient amount to cover the consideration for the purchase. But even if there was some absence of evidence on the point, it does not very much affect the finding when there is overwhelming evidence to show as held by the courts below that after the purchase, Gopinath himself treated this property as plaintiff's property. He collected money for the plaintiff from the tenants and issued receipts to them in her name. He also paid the Government revenue out of plaintiff's money. He collected money for the plaintiff from the tenants and issued receipts to them in her name. He also paid the Government revenue out of plaintiff's money. The value of all this evidence cannot be destroyed simply be­cause there was not definite evidence as to how the balance of the consideration was paid later on, when particularly on this point, the defendant did not make out any specific case that Gopinath though acting as plaintiff's agent for the other estates had .paid the consideration money for this particular estate out of his own funds. No evidence has been given to that effect by the defendants either. It is not necessary for me to answer any hypothetical question which does not arise on the facts of the case. For all these reasons, the findings of the learned Additional District Judge cannot be assailed. It is obvious from his judgment that he also discussed the evidence of the pleader Mr. D. N. Uzir which demolished the case of the defendants that plaintiff's estates were purchased not by Gopinath as bidding on her behalf but by Mr. Uzir in the name of the plaintiff. (11) I accordingly agree with Ram Labhaya J. that the appeal is without much substance and should be dismissed and the decision of the learned Additional District Judge should be affirmed. The respondent is entitled to her costs of this appeal. Appeal dismissed.