JUDGMENT The judgment of the Court was as follows : The Premises No. 46, Strand Road is a trust property and it was previously a vacant plot of land. By a lease dated June 27, 1910, the then trustees of this truste estate demised this land unto one Haribux Deora, a common ancestor of the defendants, for a term of 51 years 'commencing from August 1, 1910. 2. In terms of this lease Haribux was to erect a building on the demised land of the value of not less than Rs. 1,50,000 within five years from the date of this lease and he was liable to make over the demised land including the building to the trustees on the expiration of or the sooner determination of the lease. 3. Haribux died in the year 1933 or 1934 leaving behind him his two sons Ishwardas and Gobordhandas who are also dead. The defendant Narayandas became the karta of the branch of Ishwardas after the death of his father Dhanraj whose widow is the defendant Smt. Rampeary Debi. The defendants Smt. Kamli Debi is the widow of Ishwardas. These three defendants will henceforth he called as Narayan's group. 4. The defendants Badri and Mahabir are the sons of Gobordhandas on whose death Badri became the karta of this branch. Badri married twice. His first wife was Smt. Panna Debi who died before this suit was filed. The defendant Nos. 7 to 10 are the sons of Smt. Panna Debi and they were minors at the time this suit was filed. The two elder sons of Badri, viz. Chandra and Krishna, have since attained majority and they will be called as elder sons. The defendant, Smt. Santosh Debi is the second wife of Badri. The defendant, Rajkumar was born long after this suit was filed and he is the son of Badri and Smt. Santosh Debi. 5. The witness Smt. Basanti Debi is a wealthy sister of Badri. She is a widow from her childhood and is residing in the suit property for many years. 6. Haribux was a Hindu governed by the Mifakshara School of Hindu law and after the successive deaths of the aforesaid persons this leasehold property ultimately became the co-parcenary property in the hands of Narayan and Badri as kartas of their respective joint families and they held this property as joint tenants. 6. Haribux was a Hindu governed by the Mifakshara School of Hindu law and after the successive deaths of the aforesaid persons this leasehold property ultimately became the co-parcenary property in the hands of Narayan and Badri as kartas of their respective joint families and they held this property as joint tenants. On the respective births of Badri's sons they became co-parcenars and joint tenants of this property alongwith Badri and Mahabir until Mahabir separated from Badri long after the institution of this suit which was admitted by the Counsel for the parties. 7. The plaintiffs are the present trustees of this trust estate. This suit was filed by them on August 31, 1961, and they are hereinafter referred to as the trustees. They have claimed recovery of possession of this property from the defendants on the plea that this lease stood determined by (i) efflux of time on the expiry of August 1, 1961 and (ii) by express surrender made by the defendants by letter dated August 1, 1961, written by Badri and Mahabir to the trustees who have also claimed Rs. 517.16 as arrears of rent from the defendants' and mesne profits at the rate of Rs. 300 per day until possession of this property is recovered from them. 8. Narayan's group held a joint written statement denying the claims of the trustees. Badri and Mahabir filed a joint written statement on December 13, 1961 admitting the claims of the trustees and on the same day Badri, as the guardian ad litem of all his the then minor sons, field a voluntary statement which is practically a verbatim copy of this joint written statement. On December 22, 1970, this suit was settled between the trustees and Narayan's group and a consent decree was passed between them. 9. The elder sons attained majority and they applied for filing their written statement. On January 15, 1971, I made an order recording the attainment of their majority and by accepting the contention of the learned Counsel, Mr. M. Hazra who opposed that application on behalf of the trustees directed that the written statement to be filed by the elder sons must not be in any way inconsistent with the voluntary statement filed by Badri. 10. M. Hazra who opposed that application on behalf of the trustees directed that the written statement to be filed by the elder sons must not be in any way inconsistent with the voluntary statement filed by Badri. 10. The elder sons filed their joint written statement on January 22, 1971, taking the plea that the trustees had entered into a fraudulent and collusive arrangement with Badri', Mahabir and Narayan in order to evict the sons of Badri from the suit property and in pursuance of this fraudulent and collusive arrangement Badri suppressed that defence in his voluntary statement. On May 15, 1971, I removed Badri and appointed Mr. S. K. Mitter a Solicitor of this Court, as guardian ad litem of the minors for this suit. Then on August 8, 1971, Badri affirmed a petition (Ex. 01) for amendment of the written statement and dismissed this application by accepting tile contention of Mr. Hazra who opposed that application. 11. When this suit was opened by Mr. Bazta, the learned Counsel Mr. B. C. Dutt, for the elder sons, asked Mr. M. Hazra in open Court as to whether Mr. Hazra would be embarrassed in appearing as a Counsel for the trustees and Mr. Hazra giving a negative reply, opened the case for three days and on the third day, after fully hearing the Counsel for all parties, I delivered a short judgment relating to the settlement of issues and then framed the following Issues : 1. (a) Was the fifth storey of the building on the land of the demised property or any other portion of the said building erected by the predecessors of the defendants after five years from the date of the lease ? (b) If so, was the value of such construction in excess of Rs.1,50, 000 ? (c) Did the fifth storey of the building or the above stated other portions vest in the trustees of the trust estate of Babulal Agarwalla deceased? 2. (a) Was the notice dated May 2/4, 1953, given by the plaintiffs with the intention of determining the lease? (b) If so, did this notice validly terminate the lease? 3. Did the defendant become monthly tenants under the plaintiffs as alleged in the written statement of the defendant Nos. 1 and 8 ? (a) Did the letter dated August 1, 1961, operate as valid surrender as alleged or at all ? (b) If so, did this notice validly terminate the lease? 3. Did the defendant become monthly tenants under the plaintiffs as alleged in the written statement of the defendant Nos. 1 and 8 ? (a) Did the letter dated August 1, 1961, operate as valid surrender as alleged or at all ? (b) Was or is the said letter valid or binding on the defendant Nos. 7 and 8 ? (c) Were the statement in this letter made in pursuance or collusive arrangement between the plaintiffs and the defendants Badri Prasad and Mahabir Prasad as alleged in the written statement of the defendant Nos. 7 and 8 ? 5. Did the period of lease expire by efflux of time and the tenancy of the defendants determined from August 2, 1961 ? 6. Have the plaintiff go and the defendant Nos. 1 to 4 and 6 been acting in collusion with each other to deprive the defendant Nos. 1 and 8 of their right to the demised property ago alleged in para 17 of the written statement ? 7. What is the legal effect of the consent decree passed in this suit between the plaintiffs and the defendant Nos. 1 to 3 ? 8. What relief, if any, the plaintiff is entitled to ? ADDITIONAL ISSUE: Should those averments made in the joint written statement of the defendant Nos. 7 and 8 filed on January 22, 1971, which are in any way inconsistent with or contradictory to the statements made in the written statement filed on their behalf by their guardian ad litem, be rejected? 12. The elder sons called Smt. Basanti Debi as their first witness. Then Chandra Kumar gave evidence and he proved the conversations recorded in a tape which was played in Court and this tape was exhibited. Mr. Kundan Mall Agarwalta, the father-in-law of Badri, was the last witness for the elder sons. After Badri was examined, the trustee Mr. Jiwandas Agarwal gave evidence and then the trustees' employee Mr. J. N. Roy, the Engineer Mr. R. B. Ganguly and his employee Mr. H. Chatterjee gave evidence for the trustees. The case was opened on November 12, 1971, and the hearing was concluded on December 21, 1971. 13. It was contended by Mr. After Badri was examined, the trustee Mr. Jiwandas Agarwal gave evidence and then the trustees' employee Mr. J. N. Roy, the Engineer Mr. R. B. Ganguly and his employee Mr. H. Chatterjee gave evidence for the trustees. The case was opened on November 12, 1971, and the hearing was concluded on December 21, 1971. 13. It was contended by Mr. Dutt and his juniors, as an alternative to their main defence, that this lease was not determined by efflux of time on the expiry of August 1, 1961, because it was executed on August 23, 1910, and was registered on September 16, 1911. They contended that the duration of 51 years stated in the lease should be computed from September 16, 1910, inasmuch as, according to them, this lease did not come into existence until it was registered and for this proposition they placed strong reliance on the judgment of the Supreme Court in the case of (1) Hiralal Agarwal v. Rampadarth Singh, AIR 1969 SC 244 but this judgment has no bearing on this question before me, because it was not a case on lease at all. 14. No doubt, in relation to a sale of immovable property, the Supreme Court has said in that case that the sale is not complete until the conveyance is registered but, undoubtedly, the law is A lease may commence from a day which is past in (2) Enys v. Donnithorne, (1761) 2 Burr 1190 though in that case it relates back to such day for purposes of computation only in (3) Bird v. Baker, (1858) 1 E & E 12: (4) Cooper v. Robinson, (1842) 10 M&W 694, vide, Faa's Landlord and Tenant (7th ed., page 1 & 7). Further, in Halsbury's Laws of England (2nd ed., Vol. 20, page 146) it is said : The term may commence either immediately or from a past or future date; and although it is expressed to commence from a past day, yet the actual interest of the lessee commences only on the execution of the deed. In this view of the matter their contention is devoid of substance and I overrule it. 15. The next dispute is on the question of construction of the structures on a portion of this building which was to be constructed within five years from the date of this lease. In this view of the matter their contention is devoid of substance and I overrule it. 15. The next dispute is on the question of construction of the structures on a portion of this building which was to be constructed within five years from the date of this lease. Jiwandas has said that he is seeing this building in its present condition since his childhood but I am unable to act on his evidence. He never reside in this house. He became a trustee in 1932. This property was leased out in 1910 and his evidence is that he did not even go to this house as alleged by Smt. Basanti Debi in her evidence. 16. Smt. Basanti Debi has said that in her presence the disputed portion of this building was constructed by Haribux long after five years from the date of this lease and I accept her evidence. Further, the trustee in terms of the consent decree have paid more than Rs. 50,000 to Narayan's group in settlement of compensation claimed by them in respect of their right, title and interest in these structures. In these circumstances, I hold that the disputed portion of the building was erected long after five years from the date of execution of this lease and my answer is 'yes' to Issue No. 1 (a). 17. But there is nothing on the record to show that the value of these constructions exceeded Rs.1,50,000 and, therefore, my answer is 'no' to Issue No. 1(b). Now Issue No. 1(c) is not a pure question of law and no evidence was adduced by the parties and, hence, my answer is 'no' to this issue. Further, the trustees having paid more than Rs. 58,000 to Narayan's group for these structures have by necessary implication; admitted that these constructions did not vest in them and they were liable to pay for these constructions. And this circumstantial evidence is against the trustees on this issue. 18. In the year 1949, Narayan filed a Partition Suit in this Court, being Suit No. 1700 of 1949 against Gobordhandas claiming separate allotment of rooms of this leasehold properties and after a Receiver was appointed Badri and Mahabir were substituted in place of their deceased father and this Partition Suit was pending in the year 1953. 19. 18. In the year 1949, Narayan filed a Partition Suit in this Court, being Suit No. 1700 of 1949 against Gobordhandas claiming separate allotment of rooms of this leasehold properties and after a Receiver was appointed Badri and Mahabir were substituted in place of their deceased father and this Partition Suit was pending in the year 1953. 19. In 1953, the trustees filed Suit No. 1772 of 1953 in this Court against Narayan's group, Badri, Smt. Panna Debi, Mahabir, the elder sons and the said Receiver for evicting them from this property by serving a notice of forfeiture dated May 2/4, 1953, through Messrs. Mukherjee and Biswas. The trustees also claimed over Rs. 40,000 as damages from them on the allegations made out in this notice and they further claimed Rs. 13,525 as arrears of rent due upto the date of determination of this lease in accordance with this notice and interest thereon until realisation. Deeras defended that action and the trustees, without taking any steps, deliberately kept this 1953- suit alive for an these years. 20. This notice of forfeiture of, 1953 inter alia, says that the trustees "intend to determine the lease' and 'to re-enter the said premises" on May 9, 1953. The trustees have acted upon this notice by filing the suit of 1953. In that plaint they have repeated this statement and have further said that they have communicated their intention to determine this lease by serving this notice of forfeiture on those defendants. The trustees are bound by their pleading including the statements regarding their intention expressed in this notice. And in answer to Qs. 1226- 1230 Jiwandas had admitted that this notice of forfeiture was served on the Deoras with the intention of determining this lease and hence my answer is 'yes' to Issue No. 2(a). 21. On Issue Nos. 2(b), 3 and 5 it is an admitted fact that on December 23, 1959, Narayan and Badri paid Rs. 30,060 to the trustees by two separate cheques for Rs. 15,030 each. And this is the evidence of Jiwandas (Qs. 53-66, 342,380-3&4,406, 1168, 1175, 1285-88) on this sum of Rs. 30,060. 21. On Issue Nos. 2(b), 3 and 5 it is an admitted fact that on December 23, 1959, Narayan and Badri paid Rs. 30,060 to the trustees by two separate cheques for Rs. 15,030 each. And this is the evidence of Jiwandas (Qs. 53-66, 342,380-3&4,406, 1168, 1175, 1285-88) on this sum of Rs. 30,060. About a week before December 23, 1969, Narayan and Badri approached him and offered to pay him all arrears of rent subsequent to the filing of 1953 suit, but he told them to come back later on and then he consulted his co-trustee and his lawyers and thereafter on December 23, 1959, when Narayan and Badri came to him with their cheque books he told them that this sum of Rs. 30,060 must be paid by them as damages and not as arrears of rent. They accepted this condition of the trustees and paid this sum to him as damages and not as arrears of rent and Jiwandas for and on behalf of the trust estate accepted this money as damages and not as arrears of rent. 22. I accept this evidence of Jiwandas and hold that Narayan and Badri offered to pay this sum as arrears of rent, but Jiwandas after consulting his co-trustee and the lawyers decided to take Rs. 30,060 from Narayan and Badri on condition that this sum must be paid to the trustees as damages and not as arrears of rent. I also hold that Badri and Narayan as kartas of their respective joint families accepted this condition of the trustees and they agreed to pay this sum of Rs. 30,060 as damages and not as arrears of rent. And in terms of this agreement Badri and Narayan paid this sum of Rs. 30,060 as damages to the trustees which was accepted by Jiwandas as damages in pursuance' of the joint decision of the trustees. 23. In this connection I also accept this evidence of Jiwandas, viz., that Narayan and Badri were not in a position to pay the arrears of rent claimed in 1953 suit at that time due to the payment of Rs. 30,060 to the trustees, and for this reason Jiwandas did not press them at all to clear up those dues. 23. In this connection I also accept this evidence of Jiwandas, viz., that Narayan and Badri were not in a position to pay the arrears of rent claimed in 1953 suit at that time due to the payment of Rs. 30,060 to the trustees, and for this reason Jiwandas did not press them at all to clear up those dues. Furthermore, the interest was running On those arrears of rent as claimed in that suit and this is one of the reasons for which the trustees kept that suit hanging in this Court for all these years until on December 21, 1971, I passed a decree in that suit for those arrears of rent with interests and costs against Badri Mahabir and the sons of Badri and not for the recovery of possession of this property which was abandoned by Mr. Hazra. 24. Now, to obviate the serious legal consequences of this express and agreement relating to the payment and acceptance of these sums as damages, Jiwandas untruly said that at the time the plaint in this suit was being finalised he was advised by his lawyers to treat this sum of Rs. 30,060 as arrears of rent paid under the lease of 1910 and not as damages. I said untruly because he previously said that he was advised by his lawyers to accept this amount as damages and not as arrears of rent. 25. Further, the trustees by their unilateral act cannot change the character of this money nor they can convert these damages into rents. It was their condition and that condition was that Deoras must pay this money to them as damages and not as arrears of rent. Deoras have accepted this condition. They have paid this money on this condition. And on this condition and this condition alone the trustees have received this money. This condition is attached to this money. This money is impressed with this condition And hence the trustees having accepted this money on their one condition, cannot turn round and reject this condition by their unilateral act or treatment at any subsequent stage. They are bound by their own condition and cannot re-condition it any further. 26. Then Mr. This condition is attached to this money. This money is impressed with this condition And hence the trustees having accepted this money on their one condition, cannot turn round and reject this condition by their unilateral act or treatment at any subsequent stage. They are bound by their own condition and cannot re-condition it any further. 26. Then Mr. Hazra contended that the evidence of Jiwandas relating to this express oral agreement of December 23, 1959, is not admissible in evidence in view of section 92 read with the Proviso 4 to this section of the Evidence Act. He cited on (5) Mayalldi Chetti v. Oliver, ILR 22 Mad 261, in which it was held that the oral evidence relating to a subsequent agreement reducing the rent payable under a registered lease was not admissible in evidence, but I am not concerned with that question here and it is not an authority on the point involved before me. He also cited a case of (6) Srinivaswami Aiyangar v. Athma Rama Aiyar ILR 32 Mad 281, but it is not even a case on lease, and on the other hand, a Division Bench of our Court in the case of (7) Akhya Gavs v. Erildatulla Kazi, 64 IC 883, has held that section 92 and the Proviso 4 to that section does not shut out the oral evidence for proving that a registered lease for an agricultural purpose has come to an end by a subsequent oral agreement. 27. This judgment of our Court is a direct authority against the above contentions of Mr. Hazra because the leases for agricultural purposes are expressly mentioned in section 106 of the Transfer of Property Act and furthermore I am bound by this decision. And in any event to accept his contention that no registered lease can be determined except by a subsequent registered document is to nullify the law laid down by section 106 read with section 111 of the Transfer of Property Act, and hence, I overrule it. 28. The evidence was given by Jiwandas to contradict the evidence of Badri on Issue Nos. 3 and 5. The elder sons took the plea of a Hew monthly tenancy in their written statement to non-suit the trustees. Narayan also took the some defence. Long before the trial began the trustees disclosed their books of account to show that this sum of Rs. 3 and 5. The elder sons took the plea of a Hew monthly tenancy in their written statement to non-suit the trustees. Narayan also took the some defence. Long before the trial began the trustees disclosed their books of account to show that this sum of Rs. 30,060 was received by them as damages to meet the defence of Narayan. The trustees called their employee, J. N. Roy to prove this entry on these two issues Jiwandas came out with this express agreement in his evidence. In other words, the parties long before the trial began applied their mind to this question and they have adduced evidence on it at the trial. Jiwandas has proved this express agreement to my complete satisfaction. The trustees are bound by this agreement and their Counsel cannot be heard to say anything against it. 29. Now, that this evidence of Jiwandas has a great bearing on the rights of the parties. Mr. Hazra contended that should not look into this evidence, but I overrule his submission because in delivering the opinion of the Judicial Committee in the case of (8) 5hamu Patter v. Ahdul Kadir Ravuthon, LR 39 IA 218 (223) Ameer Ali, J. says this: Every Court trying civil cases has inherent jurisdiction to take cognizance of questions which cut at the root of the subject-matter of controversy between the parties. 30. And further, the Counsel for the parties did not ask me to frame any additional issue arising out of this evidence of Jiwandas nor they have asked me to reframe or elaborate these two issues. And the only contention made by Mr. Hazra on these two vital issues was that the Evidence Act shuts out this oral evidence of Jiwandas. Now in delivering the judgment of the Supreme Court in the case of (9) Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884 (886) Hidayatulla, J. (as he then was), says this : No doubt, no issue was framed, and the one which was framed could have been more elaborate, but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions, but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. 31. Though Mr. 31. Though Mr. Hazra did not take any objection as to the emission of framing of a specific issue and has further urged on the effect of this agreement, yet I have quoted the above law as an additional reason for rejecting his contention, viz., that the Court cannot look into this evidence of Jiwandas. 32. The real dispute in 1953 suit was whether this lease was validly determined by forfeiture and the trustees by their plaint kept this dispute outside the scope of this 1961 suit and yet Issue No. 2(b) was framed at the instance of Mr. Hazra. 33. By Clause 3 of the lessees covenant Deoras agreed to make over possession of this property on the expiration of or on the sooner determination of this lease and by Clause 6 the Deoras agreed to keep the building in tenantable repairs. According to Mr. Dutt. these two clauses read together entitled the trustees to re-enter on the breach at Clause 6 on the part of the Deoras, and he cites a few cases, but in reply Mr. Hazra contended that this lease could not be construed in the light of the covenants contained in the other lease which were the subject-matter of those decisions. I accept the contention of Mr. Hazra that there is no express condition in this lease which entitled the trustees to re-enter on the breach of Clause 6 and, therefore, section 111 (g) of the Transfer of Property Act has no application in this case. 34. Then Mr. Hazra contended that the notice of May, 1953 was an invalid notice and therefore, this lease was not determined by this notice. Mr. Dutt, on the other hand, contended that assuming that it was a bad notice yet the trustees have all through acted upon it as a good notice and the two elder sons after the attainment of their majority have accepted this notice as a good notice in para 7 of their written statement of this suit and, therefore, this lease was determined by this notice on the principles laid down by Kelly C. B. in (10) Tayleur v. Wildin, (1868) 3 Ex 303 and approved by the Supreme Court in (11) Calcutta Credit Corporation Ltd. v. Happy Homes Pvt. Ltd., AIR 1968 SC 471 (472). 35. Mr. 35. Mr. Hazra, without disputing these legal propositions, contended that this notice was not accepted as a valid notice by the Deoras in their written statement of 1953 suit and, therefore, these two decisions have no application to the facts and circumstances of this case before me, but the learned Counsel Miss. Roy for the minors contended that on December 23, 1959, the trustees Narayan and Badri applied their mind to the question of validity of this notice and after due deliberation Narayan and Badri accepted this notice as a good notice and paid Rs. 30,060 as damages to the trustees on the basis that this lease was validly determined by this notice. She further contended this lease was executed long before the Transfer of Property (Amendment) Act, 1929, came into existence and, hence, no notice of forfeiture was at all required to be given as laid down by the Supreme Court in (12) Namdeo Lokmun Lodi v. Narmada Bai, AIR 1953 SC 228 . The Deoras were joint tenants and, therefore, according to her, this lease stood determined with effect from December 23, 1959, on the principles laid down by the Supreme Court in the case of (13) Kanji Manji v. The Trustees of the Pore of Bombay, AIR 1963 SC 468 read with these two cases cited by Mr. Dutt. 36. She also contended that the trustees should not be permitted to blow hot and cold in relation to this notice so far as the sons of Badri are concerned. Hot for beheading them in 1953 suit which is still pending and cold for butchering them in 1961 suit. And no Court can ever allow any litigant to behave in this unruly manner as laid down by the Judicial Committee in (14) Maharaja of Vizianagram v. Secretary, State for India, LR 53 IA 64 (703) and (15) Ambu Nair v. Kalu Nair, LR 60 IA 266 (271). 37. And no Court can ever allow any litigant to behave in this unruly manner as laid down by the Judicial Committee in (14) Maharaja of Vizianagram v. Secretary, State for India, LR 53 IA 64 (703) and (15) Ambu Nair v. Kalu Nair, LR 60 IA 266 (271). 37. It way also contended by her that where a party had filed an earlier suit on the foundation of a document and claiming it to be valid document and had deliberately kept that suit pending and had thereby prevented the Court from deciding its validity in that suit the moment he would make any attempt, to say, that it was an invalid document in a subsequent Suit filed by him against the same parties the Court must then and there shut his lips for the purpose of preservation of all security and sanctity in the administration of justice and, therefore, the trustees should be debarred from challenging the validity of this notice in this 1961 suit. 38. Though, I am inclined to accept all her contentions and yet I am not deciding this Issue No. 2(b) because it has become a pure academic question in view of my finding that this lease was validly determined on December 23, 1959, by the express agreement relating to the payment and acceptance of Rs. 30,060 as damages. 39. I have recorded all their submissions 80 that they may reagitate them elsewhere and here I will record another contention made by her, namely that this lease stood determined in May, 1953 in view of the acceptance of the notice of May, 1953 as a valid notice by the elder sons in their written statement of this suit on the theory of relation back and, hence, the trustees in any event must be non-suited because they have no cause of action for this suit. 40. The relationship of landlord and tenant' as said Sir Ashutosh Mookerjee, J. in the case of (16) Dea Nandan Pershad v. Meghu Mahaton, ILR 60 IA 266 (271) is a matter of contract assented to by both parties. 40. The relationship of landlord and tenant' as said Sir Ashutosh Mookerjee, J. in the case of (16) Dea Nandan Pershad v. Meghu Mahaton, ILR 60 IA 266 (271) is a matter of contract assented to by both parties. This relationship is a creature of their bilateral act and, hence, they can always put an end to this relationship by their bilateral act and the Transfer of Property Act does not prevent them from breaking up their relationship in any mode or manner or at any point of time they may think best and if they, by their bilateral act or mutual treatment and conduct, break up their relationship the lease which binds them is then and there determined. And this law was laid down by the Supreme Court in the case of Calcutta Credit Corporation v. Happy Homes Ltd. (supra) in the following terms :- a tenancy is founded in contract, and it is always open to the parties thereto to agree that the tenancy shall be determined otherwise than by notice served in the manner provided by section 106 of the Transfer of Property Act.......... If the parties so agree, the tenancy will come to an end. 41. The rents are not damages nor the damages are rents. The rents are payable under the leases and no damages are payable under any lease. The rents go with the leases whereas damages go against the leases. The liability for the rents stops where the liability for the damages begins. In terms of this agreement of December 23, 1959. Narayan and Badri as kaltas of their respective joint families have paid and the trustees have accepted Rs. 30,060 as damages. They did it with their eyes open. They knew what was rent and they knew what were damages. They agreed to give and take the damages and not the rents in other words, they agreed not to be bound by their contractual relationship any further as lessors and lessees and they, by their joint and bilateral act, conduct and treatment, have determined this lease. In this view of the matter I accept all these contentions of Miss Roy and hold that this lease was determined on December 23, 1959. 42. Jiwandas (Qs. In this view of the matter I accept all these contentions of Miss Roy and hold that this lease was determined on December 23, 1959. 42. Jiwandas (Qs. 1081-83, 1384-85) knew that in terms of the decree in the partition suit Narayan and Badri as kartas of their respective branches were all through separately realising rents from their respective tenants and they continued to do so even after this lease was determined in December, 1959. And with full knowledge of these facts the trustees permitted them to remain in possession of this property after the determination of this lease and further allowed them to collect rents from their respective tenants each and every month. Narayan and Badri as kart as of their respective joint families, started paying Rs. 510 as rent in rotation each and every month to the trustees and the trustees went on receiving this monthly sum of Rs. 510 as rent each and every month from them in this manner until the letter of July 4, 1961, was sent by Messrs. Mukherjee & Biswas. 43. Badri has said that all these monthly sums were paid as monthly rents to the trustees and the trustees have accepted those monthly rents from them. Jiwandas in answer to Q. 1094 has admitted this fact and, further he has truthfully said in answer to Qs. 1093-95 and 1420 that Badri and Narayan having told him that they would pay rent in equal half 'share because they are half owners of these properties' the trustees all through received these monthly rents from them separately in relation to the portions separately possessed by them and these rents were all through paid by Narayan and Badri in this manner. Then to get rid of the effect of this evidence Jiwandas untruthfully came out with the tutored evidence in answer to Qs. 1169-84 by saying that all these monthly sums were received by him as damages and not as rents, and I have no hesitation in rejecting it. 44. Mr. Hazra strongly relied on the books of account of the trust estate to show that these monthly sums were received by the trustees as damages and not as rents. Now, if I accept his contention it must be held that the lease has come to an end in December, 1959 and the trustees must fail in this action. 44. Mr. Hazra strongly relied on the books of account of the trust estate to show that these monthly sums were received by the trustees as damages and not as rents. Now, if I accept his contention it must be held that the lease has come to an end in December, 1959 and the trustees must fail in this action. Be that as it may, Jiwandas has fled away from these books. He and his employee J. N. Roy have totally failed to explain why there are so many mistakes, effacement of entries, rewritings overwritings and interpolations in the ledgers. The other employees of the trust estate, who have written these books cannot be found anywhere near this Court. His co-trustee was in charge of the accounts of the trust estates is the evidence of Jiwandas, but this trustee did not take any responsibility for these books discarded by his father-in-law Jiwandas and though he was all though present in the Court yet he did not come to the witness stand to enlighten this Court about all these misdeeds committed in these books. 45. Further, the employee witness J. N. Roy has said that all these sums were entered in the rough cash books of the trust estate, but these rough cash book were deliberately withheld from the Court on the untrue plea that they were later on destroyed. This suit is pending from 1961. These sums were paid right upto July 17, 1961. The rough cash books were the most relevant documents to meet the attack of Narayan relating to the charge of collusion and fraud made against the trustees, Badri and Mahabir. Further, the entries in the cash books tendered in evidence cannot be looked into because Roy has nowhere said that those entries were correctly copied from those rough cash books. Moreover, it was impossible for the ledger writers to do all these mischievous acts had the cash books tendered in evidence been in existence at the time these entries in those ledgers were made. I accept the contention of Mr. Dutt and hold that no reliance can be placed on all these books, and I reject these books. 46. Jiwandas has said that at the time of preparation of the plaint he was advised by his lawyers to treat these damages as rents paid under this lease. I accept the contention of Mr. Dutt and hold that no reliance can be placed on all these books, and I reject these books. 46. Jiwandas has said that at the time of preparation of the plaint he was advised by his lawyers to treat these damages as rents paid under this lease. No lawyer can give such a mala fide advice and I reject this untrue evidence, but I do accept his evidence that these monthly sums were all through paid separately by Narayan and Badri as rents and these monthly sums were received all through by the trustees as rents paid by them separately. 47. Now, I will dispose of a few unmeritorious legal questions raised by Mr. Hazra. His first contention was that Jiwandas was not alone competent to accept these rents on behalf of the trust estate. He said that Jiwandas and Dhanpal should have acted jointly in this matter and they did not do so. In this connection he placed a strong reliance on the judgment of the Supreme Court in the case of (17) Janakiram Aier v. Nilkantha Aier, ILR 34 Cal 57(62) This judgment of the Supreme Court lays down that all trustees "must join in the execution of the trust excepting where the instrument of trust otherwise provides" and Mr. Hazra has relied on the first part of this sentence to get rid of the legal effect of payment and acceptance of the monthly rents stated earlier. 48. Now, the trust-deed executed by Babulal is in exclusive possession of the trustees and the provisions of this deed are exclusively known to them. And there is nothing on record to show that these defendants knew the provisions of this deed. Therefore, there cannot be any doubt that section 106 of the Evidence Act directly applies to the instant case and, hence, the burden of proving that Jiwandas and his co-trustee 'must join in the execution of the trust' is upon the trustees because "Section 106 is an exception to section 106 is the law laid down by the Supreme Court in the case of (18) Sambhunath Mehra v. State of Ajmer, AIR 1962 SC 633 . In this view of the matter, it must be held that the trustees have failed to substantiate this contention made on their behalf. In this view of the matter, it must be held that the trustees have failed to substantiate this contention made on their behalf. Further, this deliberate withholding of the trust-deed by them from this Court leads to an irresistible conclusion that had this deed been produced by them it would have gone against the contention of Mr. Hazra. 49. Now, as to abstract doctrine of the onus of the proof sought to be relied on by Mr. Hazra in this connection. No doubt the parties are entitled to rely on this doctrine, but this doctrine is not available to him who deliberately withholds the document on which he builds up his defence. In delivering the judgment of the Board in the case of (19) Murugesam Pillai v. Manickavasaka Pandara & Ors., AIR 1956 SC 404 (406) Lord Shaw says this : A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best materials for its decision. With regard to third parties, this may be right enough-they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition. The present is a good instance of this bad practice. And in (20) Gopal Krishnaji Ketkar v. Md. Haji Latif, LR 44 IA 98 (103) the Supreme Court extended the above law laid down by Lord Shaw. Ramaswami J., speaking for the Supreme Court, says this : Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. 50. In the case of (21) Gangadhar Ayyar & Ors. 50. In the case of (21) Gangadhar Ayyar & Ors. v. Subramania Sastrigal & Ors., AIR 1968 SC 1413 (1416) the Federal Court said this: The defendants are guilty of suppression of evidence in the case and that, therefore, no conclusion in their favour should be arrived at merely on the ground of paucity of evidence which is of their own creation, must be upheld, Further, in the case of (22) A. Raghavamma & Anr. v. A. Chanchamma, AIR 1949 FC 88 (95) Subba Rao, J. (as he then was) in delivering the judgment of the Supreme Court says this: Now coming to the documentary evidence, as we have already indicated, all the relevant documents admitted to have been in existence have not been placed before the Court and an adverse inference has, therefore, to be drawn against the appellant. 51. This is the law of this land and, hence, 'an adverse inference' must be drawn against the trustees for this deliberate with holding of the trust-deed executed by Babulal from this Court. And drawing this adverse presumption under section 114, illus (g) of the Evidence Act, I hold that the provisions of this trust-deed were against the contention of Mr. Hazra and those provisions directly come within the exception laid down by the Supreme Court relating to the execution of the trust jointly by these trustees. I further hold that for this reason this document was deliberately suppressed by the trustees. Further, at the time of opening the case Mr. Hazra told me that this trust is a public trust and a part of his opening" as taken down by shorthand writers of this Court. Therefore, section 48 of the Trust Act cannot be evoked by Mr. Hazra because this Act in terms does not apply to a public trust but, at the same time, I must say here that the principles embodied in section 48 applies to a public trust as laid down by the Supreme Court in the case of (23) S. K. Abdul Kayum v. Mulla Alibhai, AIR 1964 SC 136 (146). 52. Further these contention of Mr. Hazra have no substance for the reason that Jiwandas (Qs. 52. Further these contention of Mr. Hazra have no substance for the reason that Jiwandas (Qs. 381-83) has admitted that he had all through acted in consultation with his co-trustee and, hence, it must be held that he had all through acted 'with the sanction and approval of his co-trustee and, therefore, all acts of Jiwandas in relation to the subject-matter of the suit must be regarded as their joint acts as laid down by the Supreme Court in Jankiram Aier's case (supra). 53. Mr. Hazra then contended that Dhanpal having left this matter in the hands of Jiwandas had thereby delegated his duties to Jiwandas and this delegation of duties was invalid. His bone of contention was that no trustee could ever delegate his duties to the other trustees, but Miss Roy drew my attention to the judgment of the House of Lords in the case of (24) Pilkington v. Inland Revenue, AIR 1963 SC 309 where Lord Reid says this: The law is not that the trustees cannot delegate ; it is that the trustees cannot delegate unless they have authority to do so. And in Abdul Kayum's case (supra) Das Gupta J. says this: The principle of the rule against delegation with which we are concerned in the present case is clear a fiduciary relationship having been created, it is against the interests of society in general that such-relationship should be allowed to be terminated unilaterally. That is why the law does not permit delegation by a trustee of his functions, except in cases of necessity or with the consent of the beneficiary or the authority of the trust-deed itself, apart from delegation 'in the regular course of business', that is, all such functions which a prudent man of business would ordinarily delegate in connection with his own affairs. 54. I accept her contention that as this delegation of duties was challenged by Mr. Hazra the trustees are to show that they have no power to delegate and this onus could only be discharged by them by proving the trust-deed which they have deliberately withheld from this Court and, hence, they have failed to substantiate this defence taken on their behalf at the Bar. 55. She further contended that the question of delegation of duties can never arise in this case. 55. She further contended that the question of delegation of duties can never arise in this case. She said that where the trustees in the interest of the trust estate entered into an arrangement between themselves dividing their work for the proper administration of the trust and, for carrying out their duties efficiently and effectively, it cannot be said that it is either an improper or an invalid arrangement. This sort of arrangement, according to her, is in the nature of a scheme and the individual acts done by the trustees under this. arrangement are always regarded as the joint acts of all the trustees as if all of them have consented to those acts. In such cases, all those acts being their joint acts, the principle relating to delegation of duties cannot be invoked at all. In support of her contentions, she drew my attention to a judgment of a Division Bench of the Madras High Court in the case of (25) Nilmoni Porieha v. Apanna Parieha, LR (1964) AC 612 (639). In this case, Varadachariar J. says this: The arrangement is no doubt in a sense the result of an agreement between the parties, but it is an agreement by which they defined the manner in which they are to carry out the duties of the trust which in one view of the law had devolved on them jointly. As pointed out by this Court in 27 Mad. 192 at pp. 201-202 and by the Judicial Committee in 29 Mad. 283 at p. 288 such arrangements, if they are conducive to the interests of smooth administration of the affairs of the trust, are really in the nature of the scheme framed for the management of the trust and will be binding upon the parties thereto and their representatives till modified either by common consent or some manner known to law. .........Such arrangement for management of an institution are not in any sense an alienation of the office or delegation of the duties of the office, because ex hypothesi the arrangement is made between persons who are jointly entitled to act as trustees. 56. She further contended that it was the evidence of Jiwandas that he had all through acted in accordance with joint decision of the trustees and, hence, the question of delegation of the function of the trustees can never arise in this case. 56. She further contended that it was the evidence of Jiwandas that he had all through acted in accordance with joint decision of the trustees and, hence, the question of delegation of the function of the trustees can never arise in this case. She placed strong reliance on the unimpeachable evidence on the record to show that the trustees had jointly accepted the rents after the determination of this lease from Badri Narayan, and further the other trustees did not come forward to deny this evidence of Jiwandas. I accept her contentions and overrule the unmeritorious contentions of Mr. Hazra. 57. These facts are of pivotal importance on the question of creation of new monthly tenancies. The lease of 1910 was for 51 years and, therefore, it was outside the scope and ambit of the West Bengal Premises Tenancy Act, 1956, hereinafter referred to as the Tenancy Act. This case was determined on December, 23, 1959. Hence, the Deoras were bound to put the trustees into possession of this property after the determination of this lease because their possession was not protected by the Tenancy Act. The Deoras did not carry out this legal obligation and remained in possession of this property. The trustees were entitled to remove them form this property, but they did no do so. Further, the trustees permitted the Deoras to remain in peaceful possession of this property even after the determination of the lease and allowed them to collect rents from their respective tenants. 58. Where the possession of a tenant under the Rent Restriction Acts of England is not protected after the determination of his contractual tenancy and he remains in possession of the property after his lease is determined, either with the consent of or by the laches of his landlord he becomes a tenant on sufferance under the Common Law of England which is also the law of this President town of Calcutta. Hence, the Deoras became the tenants on sufferance in relation to this property. Narayan and Badri paid Rs. 510 as rent each and every month to the trustees who have received and accepted these sums of Rs. 510 each and every month as rents paid to the by Narayan and Badri in rotation in relation to the portions possessed by them separately from each other. In (26) Morrison v. Jacobs, AIR 1936 Mad 14 Mac Kinnons, Lj. 510 as rent each and every month to the trustees who have received and accepted these sums of Rs. 510 each and every month as rents paid to the by Narayan and Badri in rotation in relation to the portions possessed by them separately from each other. In (26) Morrison v. Jacobs, AIR 1936 Mad 14 Mac Kinnons, Lj. Ay this : At common law if the landlord has acquired a right to claim possession against his tenant and, instead of exercising that right, he allows him to remain in the house and accepts rent from him as before, the parties by their conduct may with reason be held to have entered into a new contract of demise. But the essential factor in those circumstances is that the landlord voluntarily abstains from turning the tenant out. 59. In delivering the majority judgment of the Federal Court in (27) Kai Khushroo Bezonjee Capadia v. Bai Jerbai Warden, (1945) 2 All ER 430 (432) Dr. Mukherjee says this: On the determination of a lease, it is the duty of the lessee to deliver up possession of the demised premises to the lessor. If the lessee or a sub-lessee under him continues into possession even after the determination of the lease, the landlord undoubtedly has the right to eject him forthwith; but if he does not, and there is neither assent or dissent on his part to the continuance of occupation of such person, the latter becomes in the language of the English law a tenant on sufferance who has no lawful title to the land but holds it merely through the laches of the landlord. If now the landlord accepts rent from such person or otherwise express assent to the continuance of his possession, a new tenancy comes into existence as is contemplated by section 116 of the Transfer of Property Act and unless there is an agreement to the contrary, such tenancy would be regarded as one from year to year or from month to month in accordance with the provisions of section 116 of the Act. 60. This decision of the Federal Court was approved by the Supreme Court in (28) Karnani Industrial Bank Ltd. v. Province of Bengal & Ors. 60. This decision of the Federal Court was approved by the Supreme Court in (28) Karnani Industrial Bank Ltd. v. Province of Bengal & Ors. [1949] FCR 262 (270) Fazl Ali, J. in delivering the judgment of the Supreme Court says this : A reference to section 116 of the Transfer of Property Act will show that for the application of that section two things are necessary; (1) The lessee should be in possession after the termination of the lease; (2) The lessor or his representative should accept rent or otherwise assent to his continuity in possession. But use of the word 'otherwise' suggests that acceptance of rent by the landlord has been treated as a form of his giving assent to the tenant's continuance of possession. 61. In (29) Rum Kumar Das v. Jagadish Chandra Deo, AIR 1951 SC 285 (287) the relevant facts were shortly these. The parties intended to create a lease for 10 years but no registered lease was executed by the landlord. The tenant remained in possession of the property and a Receiver was appointed over it. The Receiver accepted the rent from the tenant who remained in possession of the property with the permission of the Receiver and paid rent to the Receiver. Dr. Mukherjee, speaking for the Supreme Court, on these facts, said :- From these facts a tenancy could be fairly presumed and the point for determination is what was the duration of the tenancy that was created in the present case? 62. The trustees were not bound to accept any rent from Narayan and Badri after this lease was determined because their possession was not protected by the Tenancy Act after the determination of this lease. Under the Tenancy Act the landlord has no choice but to accept the rent from the statutory tenant and, therefore, if he accepts the statutory rent from the tenant it cannot be said that he has assented to the tenant's continuance in possession of the premises. Now, here the contractual tenancy was determined on December 23, 1959. The Tenancy Act had no application to the present case. The trustees have permitted the Deoras to remain in possession of this property. The Deoras have paid the monthly sums as rents to the trustees. The trustees have accepted these monthly sums as rents from them. Now, here the contractual tenancy was determined on December 23, 1959. The Tenancy Act had no application to the present case. The trustees have permitted the Deoras to remain in possession of this property. The Deoras have paid the monthly sums as rents to the trustees. The trustees have accepted these monthly sums as rents from them. I accept all these contentions of Miss Roy and hold that in these circumstances the nature and character of the relationship between the Deoras and the trustees completely changed and from tenants on sufferance the Deoras became the monthly tenants Under the trustees. 63. Mr. Hazra, however, contended that the trustees could not make the Deoras monthly tenants at a rent of Rs. 510 per month because Badri and Narayan were realising about Rs. 9,000 per month from these tenants, but Mr. Dutt rightly pointed out to me that there was nothing on record to show that this fact was known to the trustees until Badri was won over by Jiwandas in June, 1961 and, therefore, I reject this contention of Mr. Hazra. 64. Mr. Hazra, also contended that the trustees did not receive these monthly sums as rents and they have treated them as damages and therefore the trustees and the Deoras were not ad idem in relation to the creation of new monthly tenancies after the determination of this lease. These contentions are untrue in fact and in law. The trustees have received these monthly sums as rents paid by Deoras of them as rents. Therefore, there was an ad idem in relation to the nature and character of these payments. Further, the trustees having received these sums as rents cannot convert them into damages nor they can treat them as damages. The Supreme Court in the case of (28) Kamani Industrial Bank v. province of Bengal & Drs. Therefore, there was an ad idem in relation to the nature and character of these payments. Further, the trustees having received these sums as rents cannot convert them into damages nor they can treat them as damages. The Supreme Court in the case of (28) Kamani Industrial Bank v. province of Bengal & Drs. (supra) approved the majority judgment of the Federal Court in K. B. Capadia's case (supra) and before the Supreme Court section 116 of the Transfer of Property Act was also involved and Fazal Ali, J. says this on this section: The section was construed by the Federal Court in K. B. Capadia v. Bai Jarbai and it was held that where rent was accepted by the landlord after the expiration of the tenancy by efflux of time, section 116 applied even though the landlord accepted the amount remitted to him as part deposit towards his claim for compensation for illegal use and occupation and without prejudice to his rights. 65. This judgment of the Supreme Court is against the contention of Mr. Hazra and, therefore, I overrule it and I will now summarise my findings of these two issues. The lease of 1910 was determined on December 23, 1959. After the determination of this lease the trustees permitted the Deoras to remain in peaceful possession of this property. The Deoras became the tenants on sufferance under the trustees. On and from January 22, 1960, Narayan and Badri separately started paying rents to the trustees and all these rents were all through accepted by the trustees separately from them. And from this day Narayan became a monthly tenant under the trustees in relation to that portion of this property which was allotted to him under the decree in Partition Suit on a rent of Rs. 255 per month and, similarly, Badri, as karta of the joint family then consisting of himself, Mahabir and his minor sons, became a monthly tenant under the trustees in respect of the other half of the property on a rent of Rs. 255 per month. 255 per month and, similarly, Badri, as karta of the joint family then consisting of himself, Mahabir and his minor sons, became a monthly tenant under the trustees in respect of the other half of the property on a rent of Rs. 255 per month. On January 22, 1960, this property came within the scope and ambit of the West Bengal Premises Tenancy Act, 1956, because on this day separate and new monthly tenancies were created in favour of Narayan and in favour of Badri as karta of their respective joint families by the trustees and their legal relationship is now governed by this Tenancy Act. Hence, my answer is 'yes' to Issue No.3 and is 'no' Issue No.5. 66. The trustees have no cause of action and this suit must fail in view of my answer to Issue Nos. 3 and 5 and yet the Counsel for the parties took a number of days on the remaining issues and, therefore, I will decide them. Mr. Hazra contended that Badri and his sons had no interest' in the property and, hence, they could not be defrauded by any collusive agreement between Jiwandas and Badri or between Jiwandas and his co-trustee in view of the judgment in (30) Smt. Ashalata Devi v. Kanaklata Devi (an unreported decision of A.K. Sarkar, J. on August 3, 1955) in Suit No. 3098 of 1952. But the defendants before me became joint tenants in relation to the half share of this property and the 'right of a lessee from a landlord', said Shah, J. (as he then was), in delivering the majority judgment of the Supreme Court in the case of (31) Anand Niras Pvt. Ltd. v. Anandji Kalyanji Pedhi, AIR 1955 SC 414 (420) 'is and estate or the interest in the premises'. 67. This 'estate or the interest' is a proprietary right of the lessee and whenever a man has a right he is entitled to protect it. 67. This 'estate or the interest' is a proprietary right of the lessee and whenever a man has a right he is entitled to protect it. If his right is infringed he must have a remedy because it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal.........Every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his right.......... ..And it is no objection to say that it will occasion multiplicity of actions; for if men will multiply injuries, actions must be multiplied too, for every man that is injured ought to have his recompense: per Lord Holt, C. J. in (32) Ashby v. White et Allos, 2 Lord Raymond 938. Hence, I overrule the contention of Mr. Hazra. 68. Now, it is necessary is set out below the relevant portion from my judgment dated November 19, 1971, delivered in connection with the framing of issues in this suit: The learned Counsel Mr. Jain for the defendant No. 4 wants to raise this issue: 'Did the plaintiff No.1 procure the letter dated 1st August, 1961, the written statement and the voluntary statement from the defendant No. 4 on the false and fraudulent misrepresentation made to him, viz. that after the eviction of the defendant Nos.1 to 3 from this property a monthly tenancy would be created in favour of this defendant and, if so, are these documents void ?' In opposing Mr. Jain the learned Counsel Mr. M. Hazra for the trustees reminds me of the fact that I have already dismissed an application made by this defendant for amendment of the written statement by which this defendant sought to incorporate these pleas............Mr. Hazra says that, in the circumstances, I should not allow Mr. Jain to raise this issue............I have dismissed that application and, hence, I will not allow this issue to be raised by Mr. Jain as contended by Mr. Hazra............But I must make it absolutely clear that I will give full opportunity to this defendant to adduce evidence on those allegations made in his said petition including the points involved in this issue sought to be raised by Mr. Jain as contended by Mr. Hazra............But I must make it absolutely clear that I will give full opportunity to this defendant to adduce evidence on those allegations made in his said petition including the points involved in this issue sought to be raised by Mr. Jain and similarly I will give full opportunity to the plaintiffs to adduce evidence to meet all those allegations. 69. The reasons for making this special order relating to evidence are fully stated in my said judgment and, hence,. I do not propose to repeat them here. Now, I will start with a few facts without making any comment so that my ultimate findings can properly be appreciated. Mr. P.K. Chatterjee, an Attorney of this Court, was appointed guardian ad litem of the elder sons of Badri for 1953 suit. On July 3, 1961, Jiwandas affirmed a petition in 1953 suit for discharge of Mr. Chatterjee and in his place for appointment of Badri as guardian ad litem of an his the then minor sons for that suit by saying in that petition that Badri had given his consent. While this application was pending the trustees, through their Solicitors, wrote the letter of July 4, 1961, to the Deoras stating therein that the lease of 1910 would expire with the expiry of August 1, 1961, and the Deoras should vacate this property and they should also submit to the trustees the lists of their tenants including the rents payable by them. On July 6, 1961, Mr. Chatterjee was discharged and in his place Badri was appointed guardian ad litem of his sons for 1953 suit. 70. And in reply to the letter of July 4, Badri and Mahabir gave the letter dated August 1, 1961, to Jiwandas in which they said that the lease of 1910 would expire as stated in the letter of July 4, and the trustees should enter and take symbolical possession of this property on August 2, 1961, by treating the tenants as their direct tenants. Then this suit was filed on August 31, 1961, and on the same day a petition was affirmed by Jiwandas for appointment of a Receiver of this property. In this petition all the relevant paragraphs of the plaint were incorporated and copies of these two letters were annexed. 71. Then this suit was filed on August 31, 1961, and on the same day a petition was affirmed by Jiwandas for appointment of a Receiver of this property. In this petition all the relevant paragraphs of the plaint were incorporated and copies of these two letters were annexed. 71. In the above application Badri and Mahabir filed a joint affidavit affirmed on September 11, 1961, admitting all relevant facts stated in the said petition and saying that they were willing to pay the occupation charges to the Receiver with regard to the portions of the property physically occupied by them. On September 19, 1961, the Official Receiver was appointed the Receiver of this property and he was authorised to collect rents from all the tenants. By this order he was directed to collect occupation charges from Badri and Mahabir but he was directed not to disturb their actual physical possession of the portions occupied by them. 72. On September 28, 1961, Jiwandas affirmed a petition for appointment of Badri as guardian ad litem of his sons for this suit and on October 4, 1961, that application was moved in Court and Badri appeared and filed his affidavit of competency and he was then and there appointed the guardian ad litem of his sons for this suit. On December 13, 1961, Badri and Mahabir filed their joint written statement admitting all facts pleaded in the plaint and on the same day Badri as guardian ad litem filed his voluntary statement which is practically a verbatim copy of his written statement. 73. These two suit were settled between the trustees and Narayan's group and two consent decrees were passed on December 22, 1970, in these two suits. Then the elder sons applied to this Court for recording their attainment of majority and for tiling their written statement. Mr. Hazra appeared in that application and agreed to the recording of their attainment of majority but opposed their prayer for filing of the written statement, but I allowed them to file it, but at the same time by accepting the contentions of Mr. Hazra, I directed them not to plead anything which would be in any way inconsistent with the statements made in the voluntary statement filed by Badri. 74. The elder sons filed their written statement on January 22, 1971, in which Badri, Mahabir and the trustees were charged with fraud and collusion. Hazra, I directed them not to plead anything which would be in any way inconsistent with the statements made in the voluntary statement filed by Badri. 74. The elder sons filed their written statement on January 22, 1971, in which Badri, Mahabir and the trustees were charged with fraud and collusion. Badri took a change from his Attorney Mr. Achalanath Ganguly and on May 15, 1971, I removed Badri and in his place appointed Mr. S. K. Mitter as guardian ad litem of the minors for these two suits and then on June 12, 1971, a petition was affirmed by Mr. Sukla, an employee of the Official Receiver, praying, inter alia, for an order that Badri, Mahabir and the sons of Badri should be directed to pay over Rs. 1 lac as occupation charge to the Receiver. While this application was pending, on August 8, 1971, Badri took out a summons for amendment of the written statement which was opposed by Mr. Hazra and by accepting his contention I dismissed that application in limine on August 24, 1971. 75. Now, I will deal with the facts as emerged from the evidence on record and over which there is no dispute between the parties. Badri and Mahabir were not in good terms with Narayan but Jiwandas maintained good relationship with them. And notwithstanding the pendency of 1953 suit, Jiwandas (J. Q. 652) all through treated Badri as his own son. Jiwandas sent for Badri and asked for his help so that the trustees could evict Narayan's group from this property and Sadri agreed to do so (J. Q. 949). Their agreement was that the trustees would file this suit for the eviction of Narayan's group from this property and Badri and Mahabir would actively help and support the case of the trustees so that Narayan's group could be evicted from this property. Jiwandas has further admitted that Badri and Mahabir all through actively helped the trustees in this suit. 76. When this agreement was entered into is the first question, but there being no direct reliable evidence on it I will have to go by the circumstantial evidence on the record. Jiwandas has further admitted that Badri and Mahabir all through actively helped the trustees in this suit. 76. When this agreement was entered into is the first question, but there being no direct reliable evidence on it I will have to go by the circumstantial evidence on the record. Badri gave a list of his tenants to Jiwandas in the month of June, 1961, and Jiwandas in his petition of July 4, 1961, in 1953 suit has said that Badri had given his consent for his appointment as guardian ad litem of his the then infant sons for that suit and while that application was pending the letter of July 4, 1961, was caused to be written by the trustees and on July 6, 1961, Badri was appointed guardian ad litem in place of Mr. Chatterjee. In my opinion, these facts lead to an irresistible inference that the agreement between Jiwandas and Badri was entered into in the month of June, 1961, otherwise these important events would not have happened at all. In these circumstances, I hold this agreement was entered into by and between them in the month of June, 1961. 77. The trustees, Badri and Mahabir, knew that the lease of 1910 was determined on December 23, 1959. They further knew that after the determination of this lease separate monthly tenancies were created in favour Narayan and Badri as kartas of their respective joint families. The trustees and Badri knew that Badri had already submitted a list of his tenants to Jiwandas in June, 1961. In these circumstances, each and all the statements made in the letters of July 4, 1961, August 1, 1961, in the plaint in suit and in the petition for appointment of the Receiver were untrue and they were false to the knowledge of the trustees and Badri. And why Badri knowing the true facts would still suppress them and why he should at all admit all these false statements in the letter of August 1, 1961, in the affidavit of September 11, 1961, and in the written statement and should repeat these evil acts in his voluntary statement are the most important questions on these issues. 78. And why Badri knowing the true facts would still suppress them and why he should at all admit all these false statements in the letter of August 1, 1961, in the affidavit of September 11, 1961, and in the written statement and should repeat these evil acts in his voluntary statement are the most important questions on these issues. 78. Mahabir did not give evidence in this suit and he was not a factor is the evidence of Jiwandas, but Badri has said in his petition for amendment of the written statement that Mahabir had taken the side of Jiwandas and did not join with Badri in making that application. This petition (Ex. 01) was tendered in evidence and still Badri was not cross-examined on this statement. Now, Badri had a telephonic conversation with Jiwandas which was recorded in the tape (Hitachi No.7 talk) by Chandra Kumar and this tape was played in the Court. 79. This conversation conclusively shows that Jiwandas wanted Badri to repose confidence on Jiwandas and Badri did it at his request. Similarly, it shows that Jiwandas wanted Badri to surrender to him and Badri did it at his request. Further, Jiwandas has admitted in this talk that the trustees have no case for appointment of the Receiver but they succeeded in that application due to the active support of Badri who gave the letter of August 1, 1961, on absolute faith to Jiwandas. 80. Now, Badri has said in his evidence that the main term of the agreement between him and Jiwandas was that after the eviction of Narayan's group from this property the trustees would give this entire property solely to Badri on a monthly tenancy and for this reason he gave the letter of August 1, 1961, to Jiwandas and filed his affidavit and the pleadings by suppressing the true facts and by falsely admitting all these untrue facts. Jiwandas has denied this term in his oral testimony. 81. Jiwandas in this conversation admitted that he gave a word relating to monthly tenancy, but he did not use any verb with the result this sentence remained incomplete. Badri said to Jiwandas that the main term of their bargain was the monthly tenancy and Jiwandas did not fulfil it, and in reply Jiwandas said that excepting the fulfilment of that term what Badri was saying were all correct. Badri said to Jiwandas that the main term of their bargain was the monthly tenancy and Jiwandas did not fulfil it, and in reply Jiwandas said that excepting the fulfilment of that term what Badri was saying were all correct. In my opinion, the question of fulfilment of the term in relation to the monthly tenancy could only crop up if that was the promise made by Jiwandas to Badri. Further, Badri has given the reasons for cutting his own throat and now let us have the reasons, if any, of Jiwandas. 82. Jiwandas and Badri acted jointly for all these years for evicting Narayan's group from this property. They combined together and created all these falsehoods from the beginning to the end Jiwandas asked Badri not to exert his legal rights and Badri acceded to his request. Jiwandas wanted the letter of August 1, 1961, from Sadri and Badri gave it to him. Sadri remained faithful to Jiwandas and Jiwandas took advantage of his faith. And now Badri must not tell the reason for his support to Jiwandas and Jiwandas must not know it, can only be said by Jiwandas and this deliberate falsehood can only be created by him. 83. Jiwandas' admission that it was not even necessary for Badri to write the letter of August 1, 1961, and to file the affidavit-in-opposition, the written statement and the voluntary statement coupled with his refusal to answer the question 1154 including his admission that all these things were done by Badri for the benefit of the trustees strike at the very root of his evidence given in answer to the subsequent questions quoted above and I have no hesitation in rejecting them. He admitted that he knew the reason for this support given to him by Badri and then he deliberately suppressed the truth from the Court. 84. Now, in question 1109 Jiwandas was asked: Look at the inconsistent attitude you are taking up, Immediately before settlement with Narayandas, Badri did not want anything, Badri was anxious to turn out Narayan, that was the only object of his supporting you from 1961 ? And Jiwandas knowing the truth of this statement remained silent and did not answer this question (Q. 1110) and then he said that Badri become a different man after the consent decree was passed. 85. And Jiwandas knowing the truth of this statement remained silent and did not answer this question (Q. 1110) and then he said that Badri become a different man after the consent decree was passed. 85. Badri had no defence to this action is the evidence of Jiwandas and, hence, it is wholly untrue to say that Badri would withdraw his support for nothing specially when Narayan's group was no longer in the picture. There must be some reason for this sudden change of attitude and to ascertain it. Let us as again hear the conversation between Jiwandas and Badri from the tape. 86. Jiwandas was playing a dirty game with Badri is his own admission, and I will later on say what was this dirty game. His unwillingness to discuss any further on phone about the promise he made to Badri coupled with his offer to pay some money to Badri and Badri's refusal to accept it conclusively show that Jiwandas was no longer willing to keep his 'word' and this 'word' I hold was the creation of a monthly tenancy in favour of Badri after the eviction of Narayan's group from this property by the machination of a decree for ejectment to be collusively and fraudulently procured from this Court. 87. Badri has said that the letter of August 1, 1961, was typed in the type-writing machine of Jiwandas and Jiwandas has said that Badri might have typed this letter in the type-writing machine of the trust estate, but this case was not put to Badri and, therefore, I reject it but at the same time I ,hold that this letter was typed in the type-writing machine of Jiwandas. This letter on its face shows that it was drafted by a lawyer and Jiwandas was untruthful enough to dispute it. Jiwandas wanted the he1p and active assistance of Badri for eviction of Narayan's group this property. These two letters were written for the purpose or tiling this suit and the case made out in these two letters in the case made out in the plaint and a copy of this letter dated August 1, 1961 has been annexed to the plaint. 88. Leaving these two letters for the time being, I will now deal with Badri's affidavit of September 11, 1961, his written statement and voluntary statement. 88. Leaving these two letters for the time being, I will now deal with Badri's affidavit of September 11, 1961, his written statement and voluntary statement. It is an admitted fact that Badri supported the application for appointment of the Receiver made by the trustees. Jiwandas (Qs. 749 & 751) has further admitted that Badri supported this application because he and Badri wanted to prevent Narayan from realising the rents from the tenants and this proposal was made by Jiwandas and was accepted by Badri. Now, in this affidavit Badri has admitted all relevant facts stated in the petition for appointment of Receiver. Badri (Qs. &7-95) has said that this affidavit was drawn by Mr. Hazra. And it is to be noticed here that the plaint in 1953 suit was drawn by Mr. Hazra and, similarly, plaint in this 1961 suit was settled by Mr. Hazra. 89. Now, Badri has said that he was taken to the residence of Mr. Hazra by Jiwandas where conferences were held and Jiwandas (Qs. 85, 86, 89, 91, 92, 104-7 & 742) has admitted this fact and has further said that the joint affidavit and joint written statement of Badri and Mahabir were drawn on the line suggested by Mr. Hazra and according to his way of thinking this affidavit of Badri was not drawn by Mr. Hazra. In answer to Qs. 654-5 and 658, Jiwandas has further admitted that this written statement of Badri and Mahabir was filed in support of the case of the trustees. Jiwandas (Q. 714) has said that Badri and Mahabir supported him for compelling Narayan to give up possession of this property and in answer to Q. 945 he said that he asked Badri to help him for evicting Narayan's group from this property and at his request Badri had agreed to do it. 90. Badri, in his evidence, has said that he although reposed absolute confidence on Jiwandas and Jiwandas has said that he knew Badri from his childhood and he has further said in answer to Q. 652, "I always treated him as a son and a friend". 91. Badri has further said (Qs. 57-59) that his written statement was drawn by Mr. Hazra and then it was caused to be retyped by Mr. Misra of M/s. Mukherjee & Biswas and, thereafter, the retyped copy was handed over to Mr. 91. Badri has further said (Qs. 57-59) that his written statement was drawn by Mr. Hazra and then it was caused to be retyped by Mr. Misra of M/s. Mukherjee & Biswas and, thereafter, the retyped copy was handed over to Mr. Achalanath Ganguly, Solicitor, for having it settled by Mr. Bachawat, and as said earlier, the voluntary statement filed by Badri is practically a verbatim copy of this written statement and Badri has said that this voluntary statement was caused to be prepared by Jiwandas. Now, in Q. 368 the case put to Badri for the trustees was that this written statement and this affidavit were not drawn by Mr. Hazra, but Badri denied this suggestion. 92. In view of this case, being put to Badri, I stopped the learned Counsel Mr. Banerjee who was cross-examining and asked Mr. Hazra as to whether he was still appearing as the Counsel for the plaintiffs, and Mr. Hazra told me that he was appearing. And after this fact was recorded in the deposition of Badri below Q. 261, Mr. Banerjee' continued his cross-examination, but his line of cross-examination was immediately changed and the new case of the trustees put to Badri (Qs. 269-70) was; that Badri, as a supporting defendant, accompanied by his lawyers went to Mr. Hazra and sought his advice as to the line on which this written statement should be drawn and Mr. Hazra indicated the line and this line was that it should be drawn in such a way that it must not contradict the statements made in the letter of August 1, 1961, and the affidavit of September 11, 1961. And then in Q. 271 Badri, was told that Mr. Hazra did not draw this affidavit, but Badri denied all these suggestion, and said that Mr. Hazra drafted this affidavit and this written statement. 93. Jiwandas (Q. 762) has said that he was informed by Mr. Hazra that Mr. Hazra did not draw this written statement, but this statement cannot be received in evidence because Mr. Hazra did not come to the witness-box and by this statement Jiwandas sought to prove the truth of the alleged statements made by Mr. Hazra to Jiwandas : see (33) Subramanium v. Public Prosecutor, (1956) I WLR 965 (970) ; (34) R. B. Willis, (1960) 1 All ER 331. Hazra did not come to the witness-box and by this statement Jiwandas sought to prove the truth of the alleged statements made by Mr. Hazra to Jiwandas : see (33) Subramanium v. Public Prosecutor, (1956) I WLR 965 (970) ; (34) R. B. Willis, (1960) 1 All ER 331. Hence, there is nothing on record to contradict the truth of what Badri has said and I accept his evidence. Further, Jiwandas has said that this affidavit and this written statement were drawn in the line suggested by Mr. Hazra and this admission of Jiwandas is a substantive evidence against the trustees: see (35) Bharat Singh v. Mst. Bagirathi, AIR 1966 SC 405 (410). 94. Now, Mr. Hazra, in his telephonic conversation with Badri as recorded in the tape which was played in his presence, has said this to Badri, "I have drafted the written statement and told Bachawat on this line to do it", and he has further said, "Our responsibility (I mean) the legal responsibility is there". Mr. Hazra has further admitted in this conversation that Badri had at! through acted in the manner he and Jiwandas wanted Badri to 3.01. 95. Mr. Hazra should have followed the law laid down by our Appea1 Court in (36) Weston v. Peary Mohan Das, ILR 40 Cal 898. He Was all through present in the Court as a Counsel for the trustees and he did not enter the witness stand to explain his admissions recorded in the tape. Jiwandas has given untrue evidence and I hold that Mr. Hazra drew this affidavit and this written statement. And the responsibility for this voluntary statement must also go to Mr. Hazra and Jiwandas because Badri all through acted in the manner they wanted him to act. 96. Messrs. Roy Chowdhury & Co. were the Solicitors of Badri and Mahabir in 1953 suit but Mr. Achalanath Ganguly became their Attorney for this 1961 suit at the instance of Jiwandas who had paid the costs of Mr. Ganguly. Though Jiwandas has denied that he had paid the costs of Mr. Ganguly, but Mr. Ganguly has admitted this fact in his conversation with Badri which was also recorded in the tape. 97. Mr. Ganguly was discharged by Badri before the hearing of this suit commenced. Mr. Ganguly retained the papers on the plea of defending Mahabir but when this suit was called on for hearing Mr. Ganguly, but Mr. Ganguly has admitted this fact in his conversation with Badri which was also recorded in the tape. 97. Mr. Ganguly was discharged by Badri before the hearing of this suit commenced. Mr. Ganguly retained the papers on the plea of defending Mahabir but when this suit was called on for hearing Mr. Ganguly retired from the suit. And then he sent some of those papers in the Court for cross-examination of Badri and he did so without a subpoena being served on him. When he adopted this course Mr. Dutt, with a significant smile, whispered 'he who pays the piper, calls the tune' with the result a subpoena was immediately taken out and it was served on Mr. Ganguly for producing a few other documents on the very next day and this act was nothing but a vain attempt to get rid of the devastating comment made by Mr. Dutt. 98. I accept the contention of Mr. Dutt that Mr. Ganguly retained all these papers solely for the purpose of helping the trustees for cross-examination of Badri and the subpoena that was served -on him was a mere eye-wash. Now, under this subpoena he caused a copy of a typed copy of a draft affidavit to be produced in the Court. In other words, the original draft was not produced by him. Badri has filled up some blank spaces in this copy and has made some minor corrections and some one has written the other portions, but all these writings are of no consequence. Mr. Ganguly not only withheld the first impression of the draft affidavit but the very first page of the re-typed draft written statement was also removed and he caused only the remaining pages to be produced in the Court. Badri has made some minor alterations in some of these pages but they are of no consequences. A draft voluntary statement was also caused to be produced by Mr. Ganguly but Badri was unable to say who had made the corrections on it and he has only written 'Drawn by Mr. B. K. Bachawat, Barristerat-law. This draft is the verbatim copy of his written statement and though Badri has said that Jiwandas caused this draft to be prepared and yet Jiwandas did not deny it. Hence, I hold that Jiwandas caused it to be drafted, and Badri wrote these words, 'Drawn by Mr. B. K. Bachawat, Barristerat-law. This draft is the verbatim copy of his written statement and though Badri has said that Jiwandas caused this draft to be prepared and yet Jiwandas did not deny it. Hence, I hold that Jiwandas caused it to be drafted, and Badri wrote these words, 'Drawn by Mr. B. K. Bachawat, Barrister-at-Law. 99. I will now restate a few important facts. The lease of 1910 was determined in December, 1959 and, thereafter, separate monthly tenancies were created as held earlier. Then in June, 1961 the agreement between Jiwandas and Badri was entered into for filing this suit for eviction of Narayan's group from this property. On July 3, 1961, a Master's summons was taken out on behalf of the trustees in 1953 suit for appointment of Badri as guardian ad litem of the minors for that suit in place of Mr. Chatterjee. Then the untrue case was made out in the letter of July 4, and immediately thereafter on July 6, Mr. Chatterjee was discharged and in his place Badri was appointed the guardian ad litem of the minors for 1953 suit. 100. Now, Badri was not willing to be appointed as guardian ad litem of his sons for that suit for all these years and why he suddenly changed his mind at this stage and became their guardian ad litem have great importance on these issues. Badri (Q. 523) has said that Mr. Chatterjee was discharged at the instance of Jiwandas who in answer to Q. 1391 admitted that no allegation was made against Mr. Chatterjee and yet Mr. Chatterjee was discharged. Now, Jiwandas. (Qs. 1392, 1408-13) has said that Badri told him to record the death of Panna Debi and to add Santosh Debi as a defendant in that suit and the money belonging to the trust estate should not be wasted any further by keeping Mr. Chatterjee as guardian ad litem and in his place Badri was willing to act as guardian ad litem of his minor sons for that suit and, hence, Jiwandas agreed to this proposal of Badri. 101. This is a fantastic story and I reject it. I accept these contentions of Miss Roy and hold that had Mr. Chatterjee as guardian ad litem and in his place Badri was willing to act as guardian ad litem of his minor sons for that suit and, hence, Jiwandas agreed to this proposal of Badri. 101. This is a fantastic story and I reject it. I accept these contentions of Miss Roy and hold that had Mr. Chatterjee been there as guardian ad litem in 1953 suit the Court would have appointed him as the guardian ad litem in this 1961 suit and, hence, Jiwandas and Badri combined together and secured the discharge of Mr. Chatterjee and procured the appointment of Badri for keeping their foul hands free for achieving their respective evil objects in this 1961 suit. 102. On August 1, 1961, Badri and Mahabir falsely admitted the untrue case created in the letter of July 4, 1961, and this suit was filed on August 31, 1961, and on the same day the petition for appointment of Receiver was affirmed by Jiwandas and then Badri and Mahabir filed the said affidavit supporting the appointment of the Receiver. In this affidavit they admitted all relevant facts made in the petition and as a camouflage they said in this affidavit that they were willing to pay occupation charges for their own use and occupation of the portions of this property actually occupied by them. 103. All the minor sons of Badri were made parties to this application and yet no guardian ad litem was appointed for them to represent them in that application. On September 19, 1961, the Court passed the order appointing the Receiver and this is the appropriate stage for disposing of a legal question raised by Miss Roy. She contended that I should vacate this order forthwith inasmuch as no guardian ad litem of the minors was appointed, either for this application or for this suit, at the time this order was made and, hence, these minors were wholly unrepresented in this application. Mr. Dutt has supported this submission, but Mr. Hazra contended that Badri as Karta was representing all those minors in that application and, therefore, it was not at all necessary to appoint a guardian ad litem of the minors for that application and, hence, this order should not be vacated and it is binding on all these minors, but these contentions of Mr. Hazra are devoid of all substance and I overrule them. 104. Hazra are devoid of all substance and I overrule them. 104. The trustees have impleaded the minor sons of Badri in this suits in their individual capacities. The elder sons were also minors at that time. All these minors were made parties in that application in their individual capacities. The trustees took no steps for appointment of a guardian ad litem of these sons either in the suit or in that application until this Receiver was appointed. The mandatory provision of section 32 of the Code of Civil Procedure was not even followed by the trustees. And in any event, Badri had no power to represent the minors either in this suit or in that application because the minors were sued in their individual capacities. It was incumbent on the trustees to get a guardian ad litem appointed in that application because no guardian ad litem was appointed for that suit at that time. The principles relating to the representation of minors in the suit are equally applicable in the application in which they are made parties where no guardian ad litem is appointed for them in the suit. In (37) Chandi Prosad Misir v. Balazi Misir, ILR 53 All 427 (428) a very strong Bench of the Allahabad High Court says: We think the principle underlying the cases in which it has been held that the Manager of a Joint Hindu Family represents the whole family does not apply to a case where a minor member is impleaded as such but no attempt is made to get a guardian appointed for him. If the plaintiff does not choose to sue the Manager alone but also impleads that minor member in his individual capacity, it is his duty to get a proper guardian appointed for him. If this procedure has not been followed the decree cannot bind him. 105. Hazra was unable to cite any authority in support of his futile contention and further in Mulla's Code of Civil Procedure (13th edn. p. 1366). Law on this subject is stated as follows : 4. Minor member of Joint Hindu Family-Guardian necessary – A decree against a Manager of a Joint Hindu Family as such binds a minor member of the joint family; but if the plaintiff impleads the minor in this individual capacity, a guardian must be appointed under this rule. 106. p. 1366). Law on this subject is stated as follows : 4. Minor member of Joint Hindu Family-Guardian necessary – A decree against a Manager of a Joint Hindu Family as such binds a minor member of the joint family; but if the plaintiff impleads the minor in this individual capacity, a guardian must be appointed under this rule. 106. The Receiver was directed to collect the rents of the suit property. This order was and is ex facie adverse to the interests of the minors because they were the joint monthly tenants of the other half of this property at the time this Receiver was appointed and they were legally entitled to collect the rents, issues and profits of this part of this property through Badri who had deliberately sacrificed their interests by supporting the false case of the trustees. I accept the contentions of Miss Roy and Mr. Dutt and hold that this order is not binding on the minors and in exercise of the power conferred on me by Order 32, Rule 5(2) of the Code of Civil Procedure and, as prayed by them, I discharge this elder forthwith so far as all the sons of Badri are concerned because the elder sons were also minors at the time this Receiver was a pointed. 107. On September 28, 1961, Jiwandas affirmed a petition for appointment of Badri as the guardian ad litem of the minors for this suit. On October 3, 1961, Badri affirmed an affidavit of competency in this connection. On October 4, 1961, Badri was appointed guardian ad litem of his minor sons for this suit. Thereafter, Mr. Hazra drew the joint written statement of Badri and Mahabir. The voluntary statement of Badri on behalf of his minor sons is practically a verbatim copy of the written statement drafted by Mr. Hazra and to conceal these facts Mr. Ganguly caused them to be settled by Mr. Bachawat. These two written statements were verified by Badri on December 12, 1961 and they were filed by Mr. Ganguly on December 13, 1961. 108. The trustees, Badri and Mahabir, were charged with fraud and collusion by Narayan in his written statement and, hence, the trustees were afraid to take any steps whatsover in these two suits for all these years. These two written statements were verified by Badri on December 12, 1961 and they were filed by Mr. Ganguly on December 13, 1961. 108. The trustees, Badri and Mahabir, were charged with fraud and collusion by Narayan in his written statement and, hence, the trustees were afraid to take any steps whatsover in these two suits for all these years. And the trustees went on taking the full advantage of the appointment of the Receiver who took possession of the property on September 20, 1961. On December 22, 1970, the trustees by making a payment of over Rs. 58,000 to Narayan and his group obtained from them a consent decree for possession of this property in terms of prayer (a) of the plaint. This decree was passed without prejudice to the rights of the trustees to proceed with this suit against Badri, Mahabir and all the sons of Badri. Now that Narayan was bought off, Jiwandas and his co-trustee unmasked themselves and they carne out from their hidden den and jumped upon Badri and on his sons. And Badri saw the real game and broke the link in the chain of fraud and collusion and divulged the fraudulent and collusive arrangement that he had entered into with Jiwandas to his sister, Smt. Basanti Debi. On hearing this fraudulent and collusive arrangement from Smt. Basanti Debi the elder sons came to this Court, and on their application I gave them leave to file their written statement and dismissed the application of Badri for amendment of his written statement as stated earlier. 109. Now, that the elder sons came to this Court for protecting there interests and charged the trustees and Badri with fraud and collusion the trustees wanted to cripple them financially so that they would be unable to defend this action. Jiwandas set up the Official Receiver and his employee Sukla for this purpose. This Receiver was appointed or September 19, 1961, but this order did not specify the amount to be collected by him from Badri and Mahabir. He took possession of this property on September 20, 1961, and went on collecting the rents from the sub-tenants and from September 20, 1961, to February 1, 1963, he did nothing to implement this order so far as it related to the realisation of occupation charges from Badri and Mahabir. The trustees also slept over this matter for all these years. The trustees also slept over this matter for all these years. This Receiver had no power to fix the amount and, instead of applying to Court for direction in this behalf, he by his letter dated May 1, 1963, 8ppointed Mr. J. Ganguly, an Engineer, to assess the occupation charges payable by Badri and Mahabir (vide Ex. HH). 110. This Receiver, the trustees and Mr. J. Ganguly did nothing in this matter for many years. Then suddenly a report dated March 13, 1970, of Messrs J. Ganguly & Co. signed by Mr. R. B. Ganguly came to the office of the Receiver showing that Rs. 1,006.50P. per month was the fair 'rent' of the portion occupied by Badri Prasad Deora & Ors. and then Sukla affirmed the said petition and the Master's summons was taken out for confirmation of this report and for an order against Mahabir and Badri's group for payment of more than Rs. 1 lack to this Receiver. 111. Hadri and all his sons opposed that application and Mr. Hazra appeared for the trustees and supported it which was moved before me on August 16, 1971, and in view of the serious allegations made by the elder sons in their affidavit-in-opposition and after partly hearing the Counsel for the parties I directed that it should be heard immediately after the hearing of this suit was concluded. 112. In their said affidavit-in-opposition affirmed on July 7, 1971, the elder sons came out with the case that the Receiver and Sukla were set up by the trustees to make that application and Badri was won over by Jiwandas with the promise, namely, that after obtaining the ejectment decree in this suit the trustees would give this entire property on a monthly tenancy exclusively to Badri who was completely under the clutches of Jiwandas. They denied their liability to pay occupation charges and alleged that the report of Messrs J. Ganguly & Co. was falsely and illegally procured by the trustees behind their back. 113. Mr. R. B. Ganguly is a partner of Messrs J. Ganguly & Co., but neither this firm nor M r. R. B. Ganguly were appointed by the Receiver to deal with the occupation charges. In his report Mr. was falsely and illegally procured by the trustees behind their back. 113. Mr. R. B. Ganguly is a partner of Messrs J. Ganguly & Co., but neither this firm nor M r. R. B. Ganguly were appointed by the Receiver to deal with the occupation charges. In his report Mr. R. B. Ganguly alleged that inspite of his repeated requests Badri did not allow him to inspect this property, but in his evidence he admitted that Badri gave him access to this property including all facilities he required from Badri. In these circumstances, an assistant of Messrs J. Ganguly & Co. was brought in the Court to nullify the evidence of his master, but he too miserably failed in his attempt to substantiate these untrue allegations made against Badri and he threw his responsibility on Sukla, and yet Sukla who had also made those charges avoided the witness-box. 114. Not a single question was asked to Badri on this report in cross-examination. Not a single letter was written either by Mr. J. Ganguly or by Mr. R. B. Ganguly making these serious allegations against Badri. And of all persons Jiwandas did not utter a single word on these untrue allegations made against Badri in this report. 115. This report is dated March 13, 1970. The consent decree between Narryan and the trustees was passed on December 22, 1970. On January 15, 1971, I gave leave to the elder sons to file their written statement and they filed it on January 22, 1971, by making serious allegations of fraud and collusion against their father and the trustees. And then Sukla affirmed that petition on June 12, 1971. And this report was obtained behind the back of Badri and his sons is an admitted fact. 116. This Receiver did not give any explanation as to why he waited for all these years including these 15 months to make this application. Sukla has made untrue allegations against Badri in this petition and he was kept in charge of this property by the Receiver in spite of serious objections of Badri. 117. These people could not unmask themselves so long Narayan and his group were contesting the suit. The order of September 19, 1967, was procured from the Court on the false affidavit of Badri and Mahabir and in active connivance with them. 117. These people could not unmask themselves so long Narayan and his group were contesting the suit. The order of September 19, 1967, was procured from the Court on the false affidavit of Badri and Mahabir and in active connivance with them. Their offer to pay the occupation charges was a collusive offer and the trustees were afraid to make any application to the Court for compelling the Receiver to implement this part of the order, because such an application would have disclosed their secret evil scheme hatched against Badri and his sons. Now, that the elder sons came to defend themselves the trustees engineered this application to cripple Badri and his sons financially so that this action could go on undefended against them. I have accepted all these contentions of Mr. Dutt and have dismissed this application today before delivering this judgment. 118. This mala fide object was frustrated because this application was adjourned and, hence, another attempt was made to shut out their defence. I was asked to pass a judgment on admission straightway against Badri and his sons at the time the case was opened in view of the admissions made in the written statements of Badri and in his voluntary statement. I was asked by Mr. Hazra to ignore the written statement of the elder sons because their pleadings were inconsistent with the statements made in the voluntary statement of Badri in violation of my order. But at the same time, at his instance, I framed the additional issue. He also contended that the admissions made by Badri in his voluntary statement were binding on the minors inasmuch as the guardian ad litem, Mr. Mitter, did not deny these admissions in his voluntary statement. But I refused to accede to these submissions at the stage for these reasons. 119. This joint written statement and this voluntary statement were tiled in December, 1961. In these pleadings and the affidavit of September 11, 1961, though the case of the trustees were admitted and yet for all these years the trustees did not ask the Court to pass a judgment on admission against these defendants. The elder sons charged the trustees and Badri with fraud and collusion. Badri charged Jiwandas with fraud and collusion in his petition for amendment of the written statement. The elder sons charged the trustees and Badri with fraud and collusion. Badri charged Jiwandas with fraud and collusion in his petition for amendment of the written statement. The elder sons came out with more particulars of fraud and collusion in their affidavit of July 7, 1971. The voluntary statement tiled by Badri ceased to be the written statement of the two elder sons the moment they tiled their own written statement. This voluntary statement also ceased to be the voluntary statement of the minors when Mr. Mitter tiled his voluntary statement. 120. Now, at the time Mr. Hazra pressed upon me the provisions of Order 12, Rule 6 of the Code of Civil Procedure, I did not know that he drew the written statement of Badri nor did I know under what circumstances the voluntary statement of Badri came into existence and, hence, I will deal with his contentions in more details. 121. He contended that the admissions made in the pleadings stand on a different footing from the admissions made otherwise than in the pleadings and, hence, Badri is bound by the admissions made in his written statement and the voluntary statement. He further contended that Badri had willingly made the admissions in the letter of August 1, in the affidavit of September 11, and in these two- pleadings and, therefore, Badri cannot get rid of these admissions and the Rule of Estoppel prevents Badri from ascertaining the truth, because, according to Mr. Hazra, the trustees have all through acted on the basis of these admissions. 122. There is no sub-stance in all these contentions, and at the very outset I reject them. No doubt Badri has made those admissions willingly but he did so at the instance of Jiwandas. All these false admissions were made by Badri expressly for the purpose of strengthening the bands of the trustees against Narayan's group for showing that there was no defence to this action and not for the purpose of allowing the trustees to use these false admissions against Badri after the eviction of Narayan's group from this property. Further, all these admissions were made falsely, fraudulently and collusively and no Court can act on them. 123. An admission is not a conclusive proof of the fact admitted. Further, all these admissions were made falsely, fraudulently and collusively and no Court can act on them. 123. An admission is not a conclusive proof of the fact admitted. But it is treated as a substantive evidence but that evidence becomes a false evidence the movement it is established that the untrue fact was falsely admitted. 124. On the value of admission Lord Buckmaster in (38) Irashed Ali v. Mst. Karima 22 CWN 530 (532,533) said :- Prima fade such a statement be accepted, unless it call be shown by independent evidence to be false, and Lord Atkinson in (39) Rani Chandra Kamvar v. Choudhuri Nappat Singh & Ors. LR 34 IA 27 (35, 36) says this :- 'The law on this point is clear'. In Heane v. Rogers [(1829) 9 B & C 577 at p. 586] Mailey J. in delivering the judgment of the Court lays it down; There is no doubt but that the express admissions of a party to the suit or admissions implied from his conduct are evidence and strong evidence against him, but we think he is at liberty that to prove that such admissions are mistaken or were nature, and is not estopped or concluded by them unless another person has been induced by them to after his condition. In such a case the party is estopped from disputing that truth as against that person (and those claiming under him) and that transaction, but as to third parties he is not bound. In Newton v. Liddiard [(1848) 12 Q. B. 926] Lord Demman approved and adopted this statement of law and ex parte Morgan, in re Simpson [(1876) 2 Ch. D. 72 at p. 89] and Trinidad Asphalte Co. v. Coryat, 1896 A. C, 587, in effect illustrate the same principle. There is here no suggestion of mistake and the question for the decision of their Lordships in effect resolves itself into this; Has Mukund Singh proved satisfactorily that the admissions contained in the deeds to which he was a party are untrue in fact? 125. In delivering the judgment of a Division. There is here no suggestion of mistake and the question for the decision of their Lordships in effect resolves itself into this; Has Mukund Singh proved satisfactorily that the admissions contained in the deeds to which he was a party are untrue in fact? 125. In delivering the judgment of a Division. Bench of this Court in the case of (40) Bengal Youngmen’s Zamindary Co-operative Society' Ltd. v. Nritya Gopal Singh a AIR 1937 Cat 159 (162) Mukherji J., as he then was, said this : The admission is not conclusive and can be explained away and shown to he wrong; Vide 34 I.A. 27 and 40 CWN 75. that ,it was a wrong statement is clear from the findings of both the Courts, even if we are not go to the length of saying what the lower Courts have done, viz. that it was a fraudulent recital. In (34) Bharat Singh v. Mst. Bagirathi (supra) (410) Raghubir Dayal J., speaking for the Supreme Court says this : Admissions are substantive evidence by themselves, in view of sections 17 and 21 of the Indian Evidence Act, though they are not -conclusive proof of the matters admitted. We are of opinion that the .admissions du1y proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in. case it made a statements contrary to those admissions. The purpose of contradicting the witness under section 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statements used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence. We are, therefore, of opinion that the admissions of Bagirathi which had been duly proved could be used against her. 'They were proved long before she entered the witness box and it was for her to offer any explanation for making those admissions. 126. In (41) Basant Singh v. Janki Singh &. Ors. We are, therefore, of opinion that the admissions of Bagirathi which had been duly proved could be used against her. 'They were proved long before she entered the witness box and it was for her to offer any explanation for making those admissions. 126. In (41) Basant Singh v. Janki Singh &. Ors. AIR 1967 SC 341 (343) though the question before the Supreme Court was confined to the admission made in the pleading in an early suit and yet in my opinion the law laid down therein by Bachawat J. in the following terms should be applied in all cases so far as the Indian Courts are concerned : We are not concerned with as the technicalities of the English law. Section 17 of the Indian Evidence Act, 1872, makes no distinction between an admission made by a party in a pleading and other admissions. Under the Indian Law, an admission made by a party in the plaint signed and verified by him may be med as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive and it is open to the party to show that it is not true. The explanation of lanki Singh and Kailaspati Singh that the plaint was drafted by their lawyer Ramanand Singh at the instance of the Panches including one Ramanand and they signed and verified the plaint without understanding its contents cannot be accepted. There is positive evidence on the record that the plaint was drafted at the instance of lanki Singh and was filed under his instructions. The plaint was signed not only by lanki Singh and Kailaspati Singh but also by their lawyer, Ramanand Singh. Neither Ramanand Singh nor the Panch Ramanand was called as a witness. Even in this litigation, Ramanand Singh was acting as a lawyer on behalf of some of the defendants. Kailaspati Singh is a Homoeopathic medical practitioner and knows English. The plaint was read over to lank; Singh. Both lanki Singh and Kailaspati Singh signed the plaint after understanding its contents and verified all the statements made in it as true to their knowledge. They then well knew that Ramayad Singh had died in 1939 after the passing of the Hindu Women's Rights to Property Act. The plaint was read over to lank; Singh. Both lanki Singh and Kailaspati Singh signed the plaint after understanding its contents and verified all the statements made in it as true to their knowledge. They then well knew that Ramayad Singh had died in 1939 after the passing of the Hindu Women's Rights to Property Act. It is not shown that the admission in the plaint as to the date of death of Ramayad Singh is not true or that it was made under some error or misapprehension. This admission must be regarded as a strong piece of evidence in this suit with regard to the date of death of Ramayad Singh. 127. There the Supreme Court did not accept the explanation of the parties making the admissions with the result their admissions made in the earlier suit were received as substantive evidence against them and it was not shown by them that the admissions made by them in the previous plaint were untrue. Further, the lawyer who drew the previous plaint was the lawyer of the parties making the admissions and that lawyer was not called to give evidence. But, here I have accepted the evidence of Badri and have held that the statements made in his pleadings are all false. Moreover, here the written statement was drawn by the same Counsel who has settled the plaint. He appeared for the trustees as a Counsel against Badri and he avoided the witness-box. 128. Now, in (42) Amiuaddin Munsi v. Tajaddin, ILR 59 Cal 541 (545, 546) a Division Bench of the Court dealing with an admission made in the. written statement has said this: The written statement is a clear admission that this Plot No. 3594 comprised in the mokarari jama belonged to all the members of the joint family and an admission must be presumed to be true until it is explained or until it is shown to be untrue. written statement has said this: The written statement is a clear admission that this Plot No. 3594 comprised in the mokarari jama belonged to all the members of the joint family and an admission must be presumed to be true until it is explained or until it is shown to be untrue. As has been pointed out by the Judicial Committee of the Privy Council in Chandra Kunwar v. Chaudhuri Narpat Singh, (1906) ILR 20 All 184 : LR 34 IA 27, quoting the observations from the case of Slatterie v. Pooley, (1840) 6 M & W. 664: 151 ER 579, that what a party himself admits to be true must necessarily be presumed to be so and it is for him to establish by evidence that the admission was made under circumstances which does not make it binding on him. And then their Lordships dealt with the evidence and were not satisfied with the explanation given in relation to the admissions made therein. In (43) Oriental Government Security Life Assurance Co. Ltd. v. Narshima Chari, ILR 25 Mad 183 (205) Bhashyam Ayyangar, J. said: If however the Court is satisfied that the admission has been obtained by fraud or that there is other good and sufficient cause, it will be in its discretion, under the proviso to section 58 of the Evidence Act, to require the fact to be proved otherwise than by such admissions. 129. Proviso to section 58 of the Evidence Act confers a discretion on the Court to "require the facts admitted to be proved otherwise than by such admission". The Court will exercise this discretion where it "suspect on prima facie grounds that the admission was made collusively" as said by Sadasiva Aiyar J. in the case of (44) Millor Venkata Reddi & Ors. v. Muthu Pambulu Naick & Ors., 39 MLJ 463 (464). At the time of framing the issues, J made it absolutely clear that Badri and the trustees would be entitled to adduce evidence on fraud and collusion, and though I admit that I did not exercise this discretionary power at that time because I had no reason to suspect about the false, collusive and fraudulent admissions made by Badri, and yet at the same time I cannot now brush them aside. The parties have adduced evidence. Their Counsel have made their respective submissions on these questions. The parties have adduced evidence. Their Counsel have made their respective submissions on these questions. And I have accepted the evidence of Badri. These false, fraudulent and collusive admissions strike at the root of the matter. These admissions were falsely made and these falsehoods were created by Badri and Jiwandas and, hence, no Court can act on these false, collusive and fraudulent admissions. 130. Now, in (45) Naqubai Ammal & Ors. V. B. Shama Rao & Ors., AIR 1956 SC 593 (599), Venkatarama Ayyar J. say this: An admission is not conclusive as to the truth of the matters stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel. 131. The Rule of Estoppel cannot be invoked by any stretch of imagination by Mr. Hazra. The trustee did not act upon these admissions nor they have altered their previous position, in any manner whatsoever, to their detriment. Further, the false statement must be unknown to the trustees before this rule can be invoked, but Jiwandas is one of the creators of these falsehoods and it is an elementary principle that "there can be no espoppel where the truth of the matter is known to both parties" : (45) Vide Mohori Bibi v. Dharmodas Ghose, LR 30 IA 114 (122). 132. This Rule seals the mouth of the party making false representation only where the other party is unaware of the falsity of the representation made to him but where the truth is known to both, their mouths remained unsealed. Badri has explained the circumstances under which these false and fraudulent admissions were made by him, and I am fully satisfied with his explanation. In this view of the matter, none of those admissions made by Badri is binding on him and these untrue admissions cannot be treated as evidence in this suit and, hence no judgment on admission can be passed against Badri. 133. Now, with regard to the elder and minor sons, Badri was their guardian ad litem and he was entrusted by the Court to protect their interests. 133. Now, with regard to the elder and minor sons, Badri was their guardian ad litem and he was entrusted by the Court to protect their interests. The Court reposed confidence on him and he betrayed it by playing foul with his own sons in connivance with Jiwandas by admitting all those falsehoods in his voluntary statement. Further, Badri's appointment as guardian ad litem of all these sons was fraudulently procured from the Court and all these falsehoods were created during the minority of all these sons. Badri's personal interests clashed with the interests of all these sons long before Badri was appointed their guardian ad litem and, hence, Badri was not at all a fit person to be appointed as their guardian for this suit. And the false admissions made by Badri in this voluntary statement ceased to be the admissions of all these sons the moment I removed him. The untrue facts falsely admitted by Badri in his voluntary statement cannot be treated as evidence in this suit for the same reasons given earlier. Further, the elder Sons have filed their own written statement denying the false allegations made in the plaint and Mr. Mitter did not admit these falsehoods created in the plaint. 134. It is well-established that the Doctrine of Estoppel does not apply to the minors: See (47) Nawab Sadiq Ali Khan v. Jai Kishori, AIR 1928 PC 152. Further, Sir Ashutosh Mookherjee J. in (48) Ram Chandra Das & Ors. v. Joy Ram Maji & Ors., 17 CWN 10 (13) says; Much less will the Court hold the infant estopped by the acts or admissions of other persons". I hold that all these sons of Badri are not bound by the false admissions made by Badri in his voluntary statement and in the letter of August 1, 1961, and no judgment on admission can be passed against them on the basis of these false admissions. 135. Then it was contended that I was misled in dismissing Badri's application for amendment of the written statement and in restricting the pleadings of the elder sons and inasmuch as these two orders have not yet been drawn I should recall or vacate them. In any event, I should not allow the trustee to take advantage of these two orders. 136. There cannot be any doubt that I was misled and I have committed sad mistakes. In any event, I should not allow the trustee to take advantage of these two orders. 136. There cannot be any doubt that I was misled and I have committed sad mistakes. I did not know at that time that the written statement was drawn by Mr. Hazra. I did not know the circumstances under which those admissions were made in all these documents including the voluntary statement of Badri. These facts were withheld from me when those two applications were opposed and Jiwandas denied in his affidavit that his lawyer had anything to do with these pleadings. Mr. Hazra appeared in those two applications and the trustees took full advantage of it, and hence, I cannot allow the trustees to take advantage of these two orders because no one can be permitted to take advantage of his own wrong is the law laid down by the highest Courts of all civilised nations. 137. Similarly, no litigant should ever suffer due to any mistake or fault of the Court is the law laid down in (49) Rodger v. Comtoir D' Escompete de Paris, LR 3 PC 465 (475), (50) Jai Berham v. Kedarnath Marwari, LR 19 IA 355 (356) and (51) Jagat Dhish Bhargava v. lawahar Lal Bhargava, AIR 1961 SC 832 (836). Further, in (52) fang Singh v. Brijlal & Ors., AIR 1966 SC 1631 (1633) Hidayatullah J., as he then was, says this : There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim Acts curia neminem gravabit'. 138. And in (53) Keshardeo Chameria v. Radha Kissen, Chamaria, AIR 1953 SC 23 the Supreme Court laid down that every Court has inherent jurisdiction to correct its own mistake by recalling its own wrong order. The Bombay High Court in (54) Basangowda Hanmantogowda Patil v. Churchigiridowda Yogangowda, ILR 34 Bom 408 (410) said: Once the Court is asked to go back upon its own procedure, it is not a question whether there is any section in the Civil Procedure Code to warrant the action of the Court amending its proceedings. The Bombay High Court in (54) Basangowda Hanmantogowda Patil v. Churchigiridowda Yogangowda, ILR 34 Bom 408 (410) said: Once the Court is asked to go back upon its own procedure, it is not a question whether there is any section in the Civil Procedure Code to warrant the action of the Court amending its proceedings. It is an inherent power of every Court to correct its own proceedings where it has been misled. I have committed serious mistakes and, hence, I hereby recall that part of the order by which I have restricted the pleadings of the elder sons and in any event I declare that the part of that order is not binding on them. 139. Now, with regard to the order rejecting Badri's application for amendment of the written statement it should be noticed here that Mahabir did not appear at the trial. It is a joint written statement of Badri and Mahabir and, therefore there should have been a joint prayer by Badri and Mahabir for amendment of their written statement. Mahabir did not join with Badri in that application and this technical difficulty stands on the way of Badri and, hence, this written statement cannot be amended, but Badri is entitled to show under what circumstances those untrue statements were made in this statement and it is wholly irrelevant to consider whether this order should be vacated as contended by his counsel Mr. Jain. 140. It is an admitted fact that the youngest son of Badri was not born when this suit was filed and his other sons were minors at the time and they have no knowledge about the facts relating to fraud and collusion. Mr. Mitter is a stranger to the family and he had no knowledge of all these nefarious acts. 141. Some of these evil acts, viz., the appointment of Badri as guardian ad litem of his sons for this suit and the filing of his voluntary statement took place during the pendency of this suit. Similarly, his affidavit of September 11, 1961, and his written statement were drawn and filed subsequent to the institution of this suit. 141. Some of these evil acts, viz., the appointment of Badri as guardian ad litem of his sons for this suit and the filing of his voluntary statement took place during the pendency of this suit. Similarly, his affidavit of September 11, 1961, and his written statement were drawn and filed subsequent to the institution of this suit. In other words, these evil acts were committed after the institution of this suit and in these proceedings and, therefore, Miss Roy contended that this Court is entitled to take notice of all these facts including the circumstances relating to these pleadings and this affidavit. Further, these pleadings and this affidavit were set up at the trial to defeat the rights of these sons and some of them are still minors and, hence, she further contended that it is the paramount duty of this Court to suppress these evil acts. I' accept her contentions, and now Cockburn C. J. in R. v. Castro says this: Falsehood is a badge of fraud; and a case which is sought to be supported by means of deception may 'prima facie', until the contrary be shown, be taken to be a bad and dishonest case, and further, the recourse to fraud and falsehood necessarily engenders distrust. See Wigmore on Evidence (3rd ed., vol. 2, p. 121). And again in the case of (55) Moriarty v. Landau Chatham Dover Railway Co., (1875) 5 QB 314 (319) Cockburn, C. J. says this:- The conduct of a party to a cause may be of the highest importance in determining whether the cause of action in which he is plaintiff, or the ground of defence, if he is defendant, is honest and just; just as it is evident against a prisoner that he has said one think at one time and another at another, as showing that recourse to falsehood leads fairly to an inference of guilt. Anything from which such an inference can be drawn is cogent and important evidence with a view to the issue. So, if you can show that plaintiff had been subordinating false testimony and has endeavoured to have recourse to perjury, it is strong evidence that he knew perfectly well his cause was an unrighteous one. 142. The trustees have created falsehoods in the letter of July 4. They have repeated those falsehoods in the plaint and in the petition for appointment of Receiver. 142. The trustees have created falsehoods in the letter of July 4. They have repeated those falsehoods in the plaint and in the petition for appointment of Receiver. Jiwandas has lured Badri and has procured from him the false letter of August 1, and the false affidavit of September 11, and the false pleadings. They are seeking to support this false case by means of deception and they have taken recourse to falsehoods. In these circumstances, I accept the contentions of Miss Roy and hold that these facts are 'prima facie' evidence against the trustees and they having failed to show the contrary it must be held to be 'a bad and dishonest case' and it further leads to an irresistible inference that their claims are also fraudulent as laid down in Wigmore on Evidence (p. 120). 143. Those who deal with the infants must deal with clean hands. Those who want to take away their right must satisfy the conscience of this Court that they are entitled to do it. The machinery of this Court or the procedural law cannot be used for achieving any fraudulent object against the minors and no wrong-doer can be permitted to open his fraudulent lips to gain an unjust advantage over the infants is the mandate of the Law and Equity. 144. These infants are incapable of protecting their interest and, hence, this Court appointed Badri to look after their interest in this suit. He played foul with his own sons and he was removed. Mr. Mitter was deprived of discharging this duty as Badri did not give him any instruction and, hence, this Court must with strong arms protect these infants by striking down the wicked acts involved in this matter. 145. I am not unmindful to the law that the charge of fraud and collusion must be supported by the particulars set forth in the pleadings; and the fraud pleaded must be proved and the failure to substantiate it cannot be substituted by another kind of fraud which is not even pleaded. But these general principles have no application in the instant case before me because the collusive arrangement between Jiwandas and Badri was wholly unknown to Mr. Mitter. But these general principles have no application in the instant case before me because the collusive arrangement between Jiwandas and Badri was wholly unknown to Mr. Mitter. Further, Badri filed his; voluntary statement to defeat the rights of these infants in these proceedings and, therefore, this Court is entitled to take cognizance of all the facts pertaining to these fraudulent and collusive pleadings; irrespective of my judgment delivered at the time of framing the issues in this suit. In these circumstances, I accept this contention of Miss Roy, viz. that a dangerous scheme was privately and secretly hawked by these fraudulent people and as this evil scheme speaks for itself and furnished and internal proof of it the omission to set forth some of the particulars of the collusive scheme by which these infants were sought to be defrauded in the written statement of the elder sons; can never amount to a contravention of the provisions of Order 6, Rule 4 of the Code. 146. Placing strong reliance on my judgment in (56) Batokristo Nandy v. Ranadeb Chaudhuri, ILR (1972) 2 Cal. 480. Miss Roy contended that though fraud and collusion must be proved, but that does not mean there must be a direct and positive proof of fraud and collusion because that cannot be bad in many cases and therefore this Court is entitled to draw an inference of deceit and collusion not only from the proved and the admitted facts as a whole but also from the acts and conduct of the parties including the circumstances under which they have acted in a particular direction. 147. In (57) Sailendra Nath Bhattachterjee v. Bijan Lal Chakraborty 49 CWN 133 (142) Dr. Mukherjee says this: Fraud and collusion often lie deeper than what appears on the surface of things. It is perfectly true that charges of fraud and collusion must be properly proved by established facts or inferences drawn' from them and suspicions and surmises are not permissible substitute, for those facts or inference. But that, as their Lordships of the Judicial Committee pointed out in (58) Satish Chandra Chatterjee v. Salish Kantha (28 CWN 327) does not require that every artifice or contrivance resorted to by one accused of fraud must be completely unravelled and cleared up and made plain before a verdict can be given against him. But that, as their Lordships of the Judicial Committee pointed out in (58) Satish Chandra Chatterjee v. Salish Kantha (28 CWN 327) does not require that every artifice or contrivance resorted to by one accused of fraud must be completely unravelled and cleared up and made plain before a verdict can be given against him. What is necessary in such cases is to take the facts admitted and proved as a whole and to draw the legitimate inference therefrom. And Lord Atkinson in Satish Chandra's, case 28 CWN 327 said: If these were not so, many a clever dexterous knave would escape. 148. In (59) Bihta Co-operative Development and Cane Marketing Union Ltd. v. Bank of Bihar,' AIR 1967 SC 389 (394) the defendant No.7 was the Treasurer of the appellant Union and he in collusion with the other defendant employees of the respondent bank, fraudulently withdrew large sums of money by means of a spurious cheque. They were an acquitted in the criminal proceeding instituted against them and when the appellant instituted the suit against all those persons including the respondent Bank who was sought to be made liable on the ground that as a trustee for the appellant it had abused the trust by allowing the money in question to be embezzled by its negligence. And speaking for the Supreme Court in the case Mitter J. said: Not only was there negligence on the part of the banker in not ascertaining whether the signatures of the cheque were genuine, the circumstance attending the encashment of the cheque show conclusively that the banker was negligent and some of its officers fraudulent Tight from the beginning. The cheque form did not come out of the customer's cheque book. A loose cheque form returned by an ex-constituent had been used for the purpose of making out a cheque purported to be drawn by the customer. The entries in the register for the issue of such loose forms were so suspicious that it is difficult to believe that the employees of the Bank concerned with the encashment of the cheque were acting bona fide. There was no negligence on the part of the customer, according to whose resolution the cheque had to be signed jointly by two persons. There was no negligence on the part of the customer, according to whose resolution the cheque had to be signed jointly by two persons. The fraud could only be perpetrated because of the complicity of the employees of the Bank, no doubt, with the help of one of the officers of the Union, namely the appellant. 149. And it should be noticed here that no charge of fraud or collusion or lack of good faith was even pleaded in the case before the Supreme Court, held that the fraud could not be perpetrated because of the complicity of the employees of the Bank with the help of one of the officers of the Union. In (60) Rex v. Burdett 4 B & Aid 161 (162) Lord Tenterden says this: A presumption of any fact is, properly, an inferring of that fact from other facts that are known; it is an act of reasoning; and much of human knowledge of all subjects is derived from this source. A fact must not be inferred without premises that will warrant the inference, but, if no fact could be thus ascertained by inference in a Court of law, very few offenders would be brought to punishment. In a great portion of trials, as they occur in practice, no direct proof that the party accused actually committed the crime is or can be given; the man who is charged with theft is rarely seen to break the house or take the goods; and in cases of murder, it rarely happens; that the eye of any witness sees the fatal blow struck, or the poisonous ingredients poured into the cup. In drawing an inference or conclusion from the facts proved, regard must always be had to 'the nature of the particular case, and the facility that appears to be afforded, either of explanation or contradiction. No person is to be required to explain or contradict until enough has been proved to warrant a reasonable and just conclusion against him in the absence of explanation or contradiction; but when such proof has been. given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends to be untrue, and the accused offers no explanation or contradiction, can human reason do otherwise than adopt the conclusion to which the proof tends? given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends to be untrue, and the accused offers no explanation or contradiction, can human reason do otherwise than adopt the conclusion to which the proof tends? The premises may lead more or less strongly to the conclusion and care must be taken not to draw the conclusion hastily, but in matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected. No hard and fast rule can be laid down regarding the evidence required for proving fraud and collusion. It is not essential to adduce direct or positive proof of fraud and collusion in each and every case. Intent to defraud must necessarily be inferred from the surrounding circumstances. The Court will look into the facts, the acts and conduct of the parties their situation and the circumstances as a whole to find out whether an inference of fraud and collusion can reasonably be drawn from them. Further, where the acts and conduct are highly against conscience and they speak for themselves, it is for the evil-doer to explain his acts and conduct before he can ask the Court to draw an inference in his favour. 150. Now, Badri and all his sons have the same interest in this property, and the lease of 1910 came to an end on December 23, 1959, and thereafter separate new monthly tenancies were created as held earlier. And for all these years Badri was not willing to act as guardian ad litem of his sons for 1953 suit and Jiwandas made his shining memory cloudy in Q. 1394 the moment he was asked to tell the Court as to what prompted Badri to change his mind so suddenly to become the guardian ailitem in place of Mr. Chatterjee. And this faked up lapse of memory sufficiently revealed his secret evil design. The fact that Badri suddenly changed his attitude just before the letter of July 4, 1961, was written by the trustees, has a great bearing on these questions. Now, it is to be noticed here that the copy of the plaint of 1961 suit was not annexed to the petition for appointment of Badri as puardian ad litem of his minor sons for this 1961 suit. Now, it is to be noticed here that the copy of the plaint of 1961 suit was not annexed to the petition for appointment of Badri as puardian ad litem of his minor sons for this 1961 suit. Similarly, a copy of the letter of August 1, 1961, was not annexed to the said petition. 151. And when Jiwandas asked in Q. 1395 as to whether the Court's attention was drawn to the letter of August 1, 1961, when Badri was appointed the guardian ad litem of his sons for this suit, he did not answer this question and took shelter under the plaint with which a copy of this letter was annexed. There is nothing on record to show that either a copy of this letter or the plaint was placed before the Court when Badri's appointment was procured from the Court. Further, there is nothing on the record to show that Badri's affidavit of September 11, 1961, was placed before the Court at the time of his appointment as the guardian ad litem of his sons. 152. Now, I set out below Q. 1396 including the answer given by Jiwandas in relation to the letter of August 1, 1961, written by Badri to the trustees: Do you know that already by that letter he relinquished his interest which affected adversely to the minor's interest, do you agree to that? Possibly it is a legal matter. This answer brings me to the legal question raised by Miss Roy and these facts are relevant for this purpose. On August 1, 1961, Badri was a joint tenant in his individual capacity. And to quote Jiwandas (Q. 1437) Badri was the karta and dharta and everything' of his children on that day. Hence, Badri was the tenant as the karta of his joint family consisting of himself and his minor sons. Now, Badri has signed this letter "without qualification, that is without specifying whether he was acting in his own capacity or as guardian ad litem of the minors" or as the karla of his family and, therefore, "he must be taken to have signed in all capacities in which his signature was required". Now, Badri has signed this letter "without qualification, that is without specifying whether he was acting in his own capacity or as guardian ad litem of the minors" or as the karla of his family and, therefore, "he must be taken to have signed in all capacities in which his signature was required". The quoted words were adopted by her from the judgment of the Judicial Committee delivered by Sir John Beaumount in the case of (61) Chabba Lal v. Kallu Lal, LR 73 IA 53 (56) and I accept her contention that by this letter Badri has fraudulently purported to sacrifice the interests of his children at the instance of Jiwandas and this letter is a product of the collusive arrangement between him and Jiwandas and, therefore, it is not binding on all these sons. 153. The materials on the record conclusively show that in order to procure the appointment of Badri as the guardian ad litem of these sons for this suit, the trustees and Badri have deliberately suppressed, amongst others, these important facts from the Court: (i) Badri was not willing to act as guardian ad litem of his sons for 1953 suit and, hence, Mr. Chatterjee was appointed by the Court; (ii) Badri became the guardian ad litem in place of Mr. Chatterjee just before the letter of July 4, 1961, was written by the trustees; (iii) Badri had written this fraudulent letter of August 1, 1961 to the trustees; (iv) Badri had filed his affidavit of September 11, 1961, supporting the case of the trustees; and (v) he was supporting the false case of the trustees and was deliberately acting against the interest of his children. I further accept her contention that a cool and calculated fraud was perpetrated on the Court by fraudulent suppression of these facts and by these fraudulent means they have procured the appointment of Badri as the guardian ad litem of his sons for this 1961 suit. 154. Badri was not the guardian ad litem of his minors sons including his two elder sons in this suit at the time his affidavit of September 11, 1961, was filed. Badri was not competent in law to represent the minors when he filed this affidavit because the minors were sued in their individual capacity. Hence, I accept the contention of Mr. Badri was not competent in law to represent the minors when he filed this affidavit because the minors were sued in their individual capacity. Hence, I accept the contention of Mr. Dutt and Miss Roy that nothing contained in this affidavit of Badri is binding on all his sons. Further, the admissions made in this affidavit were falsely made and this affidavit is the product of a fraudulent and collusive arrangement between Badri and Jiwandas and, hence, it cannot be used in this Court for any purpose whatsoever. These evil-doers were afraid of an independent guardian ad litem of these children being appointed, because if by any chance this independent guardian ad litem would have somehow come to know their evil designs, their fraudulent objects were bound to be frustrated. In these circumstances, they could not take this risk and fraudulently procure the appointment of Badri by a deliberate fraud committed on the Court. Moreover, they could not take the risk of engaging the Attorneys who were acting for Badri in 1953 snit for the same reason. And now to kill these sons, this fraudulent voluntary statement was prepared and filed in Court in pursuance of a worst type of a collusive agreement that one can think of. 155. Appointment of Badri as guardian ad litem of his sons for this suit was vitiated by the fraud committed on the Court. Interest of Badri clashed with the interest of his sons even before this suit was filed in view of Badri's letter of August 1, 1961. And the interest of Badri was adverse to the interest of his sons in view of his affidavit of September 11, 1961. By the machination of this suit, the trustees wanted to throw out these children from this property and they have further sought to recover from these children Rs. 300 per diem as damages. And Sadri was supporting all these evil acts and still he was appointed the guardian ad litem of these sons. 156. "It is the duty of the Judge himself to decide who is the proper person to be appointed as guardian ad litem" of minors for any suit, is the law stated in Mulla's Civil Procedure Code (13th edition, page 1365), in view of the words used in Order 32, Rule 3(1) of the Code. 156. "It is the duty of the Judge himself to decide who is the proper person to be appointed as guardian ad litem" of minors for any suit, is the law stated in Mulla's Civil Procedure Code (13th edition, page 1365), in view of the words used in Order 32, Rule 3(1) of the Code. And in order to decide it, the Court must know whether the interest of the proposed guardian is adverse to the interest of the minor. No Judge would have appointed Badri as the guardian ad litem of the minors for this suit had the facts stated earlier were brought to his notice. They have deliberately suppressed those facts from the Court in order to procure the appointment of Badri. They have prevented the Court from discharging its duty. The deliberate suppression of a material fact is a fraud and they have committed a fraud on the Court. And a fraud on the Court 'avoids all judicial acts' is the law laid down by Lord Coke in (62) Shedden v. Patrick, I Macq 535. And though this fraud committed on the Court by these people had vitiated the appointment of Badri and yet his voluntary statement is a substantial proof of fraud and collusion involved in this matter. 157. Further, the Court zealously protects the interests of the infants. The Court appointed Badri as guardian ad litem of his sons for this suit for protecting their interest. The Court reposed confidence and trust on Badri and entrusted him with the duty of protecting their interest, but he, in connivance with Jiwandas, has played foul with the Court by betraying this confidence and trust. These two people in terms of their collusive agreement have deliberately suppressed the defence of these sons and have created falsehoods after falsehoods so that by practising fraud on them and on this Court a fraudulent and collusive decree could be procured in terms of the prayers of the plaint. They have committed a fraud on these sons, and they have committed a fraud on this Court by filing this voluntary statement because the betrayal of confidence is a worst type of fraud. 158. Now, I will summarise the facts so far as they affect the sons of Badri. They were all infants in 1961. They have committed a fraud on these sons, and they have committed a fraud on this Court by filing this voluntary statement because the betrayal of confidence is a worst type of fraud. 158. Now, I will summarise the facts so far as they affect the sons of Badri. They were all infants in 1961. Jiwandas (Q. 949) sent for Badri and it was agreed between them that this suit should be filed by the trustees with the help and active assistance of Badri. In 1953 suit the trustees made the application on July 3, 1961, for appointment of Badri as guardian ad litem of Badri's sons in place of Mr. Chatterjee against whom no allegation was made. In para 9 of this petition Jiwanoas has said that Badri gave his consent for his appointment, and still Jiwandas has said in his oral testimony that he did not know the reason as to why Badri gave this consent. While this application was pending in the Court those falsehoods were created in the letter of July 4, 1961 for the purpose of filing this suit in terms of the agreement that Jiwandas had with Badri and also in pursuance of a secret scheme which was prepared by Jiwandas which was wholly unknown to Badri, and I will later on say what this vile scheme was. 159. On July 6, 1961, Badri became the guardian ad litem in place of Mr. Chatterjee in 1953 suit and, after creating this situation, further falsehoods Were created in the letter of August 1, 1961, and they were created for cutting the throats of these children and Narayan's group. These two letters were brought into existence expressly for the purpose of filing this suit and the plaint was filed on the basis of these falsehoods created by these fraudulent people and a copy of the letter of August 1, was annexed with the plaint. The very same day the suit was filed, the trustees made the application for appointment of Receiver and in this petition copies of those two letters were annexed. Then Badri's affidavit of September 11, 1961 was filed and the Receiver was appointed on September 19, 1961. This affidavit is false affidavit and the falsehoods created in this affidavit are sought to be used against these infants and also against Badri. Then Badri's affidavit of September 11, 1961 was filed and the Receiver was appointed on September 19, 1961. This affidavit is false affidavit and the falsehoods created in this affidavit are sought to be used against these infants and also against Badri. Then on October 4, 1961, Badri became the guardian ad litem of his children for this suit (see Jiwandas Qs. 1555-56) and this appointment was procured by committing a deliberate fraud on the Court. 160. The written statement of Badri and his voluntary statement were filed by falsely admitting the false case of the trustees. And then a barricade was sought to be created by the trustees through the Receiver when the elder sons came to defend this action and, being frustrated in this evil object, the trustees prayed for a judgment on admission at the time this case was opened not only to conceal the fraud and collusion but also to commit a further fraud on these children and Budri. 161. Before dealing with the Case inter se Badri and Jiwandas, I hold here that Badri and Jiwandas had entered into a collusive agreement for ousting Narayan's group and the sons of Badri from this property and the main terms of this collusive agreement as far as I am able to gather are these: (i) the falsehoods would be created by the trustees in the letter of July 4, 1961, expressly for the purpose of filing this suit; (ii) those falsehoods would be admitted by Badri in his letter of August 1, 1961 ; (iii) the trustees would file this suit on these Falsehoods; (iv) Badri would be appointed as guardian ad litem of his sons and he would suppress his own defence in his written statement and would also suppress the true case of his sons in his voluntary statement; (v) Badri would also falsely admit the claim of the trustees in this suit so that a decree could be obtained against them; and (vi) this property would be exclusively given to Badri on a new monthly tenancy after a decree is obtained in terms of prayers of this plaint of this suit. 162. The taw relating to collusion is well-settled. In Duchess of Kingston’s case reported in Smith’s Leading Cases (11th ed., vol. 162. The taw relating to collusion is well-settled. In Duchess of Kingston’s case reported in Smith’s Leading Cases (11th ed., vol. 1, page 731,) Lord Walisngham says this : In civil suits all strangers may falsify, for covin, either fine, or real or feigned recoveries, and even a recovery by a just title, if collusion was practised to prevent a fair defence and this whether the covin is apparent on the record, as not essoining, or not demanding the view or suffering judgment by confession, or default, or extrinsic as not pleading a real case, collateral warranty or other advantageous pleas. Pages 738-39 (Italies are for emphasis) And in (63) Naguhai Ammal v. Shama Rao, AIR 1956 SC 593 (599) Venkatarama Ayyar, J. says this: Now, there is a fundamental distinction between a proceeding which is collusive and one which is fraudulent. Collusion in judicial proceedings is a secret arrangement between two persons that the one should institute a suit against the other in order to obtain the decision of a Judicial Tribunal for some sinister purpose (Wharton's Law Lexicon 14th ed., page 212). In such a proceeding, the claim put forward is fictitious, the contest over it is unreal, and the decree passed therein is a mere mask having similitude of a judicial determination and worn by the parties with the object of confounding third parties. But when a proceeding is alleged to be fraudulent, what is meant is that the claim made therein is untrue, but that the claimant has managed to obtain the verdict of the Court in his favour and against his opponent by practising fraud on the Court. Such a proceeding is started with a view to injure the opponent, and there can be no question of its having been initiated as the result of an understanding between the parties. While in collusive proceeding the combat is• a mere sham, in a fraudulent suit it is real and earnest. 163. In this state of law I hold that the statements made in the letter of August 1, 1961, were made in pursuance of a collusive arrangement between the plaintiffs and Badri as pleaded in the written statement of the elder sons. 163. In this state of law I hold that the statements made in the letter of August 1, 1961, were made in pursuance of a collusive arrangement between the plaintiffs and Badri as pleaded in the written statement of the elder sons. I. further hold that the plaintiffs and Badri all through acted in collusion with each other to deprive all the sons of Badri of their right to this property as stated in their written statement. I also accept the contention of Miss Roy and hold that this is a collusive suit, and before a collusive decree could be obtained in terms of the prayers of the plaint against all these sons Badri divulged this collusive agreement to his sister and later on to his elder sons due to, the fraud perpetrated on him by Jiwandas. 164. Now, this is the appropriate stage to deal with a side issue. In (64) Union Bank v. Stone, 50 Me 595 (599) Appleton, J. says this: He was present and not a witness............The evidence tended strongly to charge him. A word from his lips might exonerate him from all liability....... ..If he were a witness, he must either state the truth or a falsehood. If he testified truly, his hope of a successful, defence was at an end.........He prefers the adverse inferences which he cannot but perceive may be drawn therefrom to any statements he could truly give or to any explanations he might make. He prefers any inferences to giving his testimony why; Because no inferences can be more adverse than would be the testimony he would be obliged by the truth to give. The fact of not testifying was obvious to the Jury.........No Court could perceive such a fact without attaching some degree of importance, more or less, to its existence according to the necessity of the testimony and the emergencies of the defence. No Judge exists who would not, if the trial had been before him, regard this as a fact bearing on his decision. To direct a Jury to disregard it would be to direct them to disregard a fact existent, material and probative. However, much so directed, they could not fail to perceive, and, perceiving, could not avoid regarding it......... No Judge exists who would not, if the trial had been before him, regard this as a fact bearing on his decision. To direct a Jury to disregard it would be to direct them to disregard a fact existent, material and probative. However, much so directed, they could not fail to perceive, and, perceiving, could not avoid regarding it......... In (65) Brown v. Schook, 77 Pa 471 (478) Agnew, C. J. says this: A man of ordinary intelligence must know that his failing to appear, when he had a strong motive to appear, would be appear evidence against him; if he realises up-on his ability to disprove the motive imputed, he takes the risk, but he leaves the effect of his conduct, as a matter of evidence for the opposite side, to go to the Jury. And the third American case on the point is (66) Attorney-General v. Pelletier, 134 N.E. 407 where the respondent was sought to be removed from his pest for committing misconduct in relation to his office and he did not testify. In these circumstances Rugg, C. J. says this: He rested at the conclusion of the evidence introduced by the informant. There was ample evidence introduced by the informant tending to prove that the respondent was guilty of many of the charges set forth in the information. This evidence, if believed, constituted abundant proof of malfeasance and misfeasance in office arising from motives utterly unworthy of an upright man. The case shown by the evidence vitally affected the official conduct and personal character of the respondent. Instant impulse, spontaneous anxiety and deep yearning to repel charges thus impugning his honour would be expected from an innocent man. Refusal to testify himself or to call available witnesses in his own behalf under such circumstances warrants inferences unfavourable to the respondent. It is conduct in the nature of an admission. It is evidence against him. This principle of law has long been established and constantly appeared. The reason is that it is an attribute of human nature to present such imputations. In the face of such accusation, men commonly do not remain mute but voice their denials with earnestness of they can do so with honesty. Culpability alone seals their lips. The law simply recognizes the natural probative force of conduct contrary to that of the ordinary man of integrity. 165. Now, Mr. In the face of such accusation, men commonly do not remain mute but voice their denials with earnestness of they can do so with honesty. Culpability alone seals their lips. The law simply recognizes the natural probative force of conduct contrary to that of the ordinary man of integrity. 165. Now, Mr. Jain made these contentions in relation to these lawyers of the Court. Why Mr. Hazra who took the legal responsibility for Badri's written statement should avoid the witness-box if he was innocent like a child? Why Solicitor, Mr. Ganguly should behave in this unruly manner if his hands were clean? Why Mr. Misra who was giving instructions to Mr. Hazra and Mr. Banerjee in the Court and was in charge of this suit on behalf of the trustees would not stand in the witness box if he was not a party to this collusion? And of all persons why Badri, to appease the appetite of Jiwandas, would act like a lunatic by killing his own infant sons and would then commit suicide. 166. It was said that these unfair conduct, ugly acts, deliberate omissions and wanton commissions were of pivotal importance on the questions involved before me. And it is elementary that no honest man can avoid the witness-box whenever his honesty and integrity are at issue. It was contend that the avoidance of the witness-box in these circumstances led to an irresistible conclusion that these people were afraid to show their faces because they were parties to the collusion and they knew that they had committed a fraud and, hence they have kept their faces hidden in darkness. 167. These contentions, however, passionate they may be, do not appeal to me at all in view of the special facts and circumstances present in this case. It is true that Mr. Hazra drew the joint affidavit and the joint written statement of Badri and Mahabir. It is also true that the legal responsibility for the voluntary statement of Badri must go to Mr. Hazra. It is further true that Mr. Misra and Mr. Ganguly participated in the conferences held at Mr. Hazra’s house but their is nothing on record to show that Jiwandas had placed his cards before these gentlemen either in those- conferences or elsewhere. 168. No doubt, Dadri went to the house of Mr. Hazra. It is further true that Mr. Misra and Mr. Ganguly participated in the conferences held at Mr. Hazra’s house but their is nothing on record to show that Jiwandas had placed his cards before these gentlemen either in those- conferences or elsewhere. 168. No doubt, Dadri went to the house of Mr. Hazra for supporting the untrue case of the trustees but undoubtedly there is nothing on - record to show that he had divulged the secret arrangement that he bad with Jiwandas to these gentlemen. Further, it is nowhere said by Badri that Jiwandas had exposed his evil mind or intention to these gentlemen. In other words, no foundation was laid in this behalf by Hadri in hrs evidence. And no charge of collusion or fraud was directly levelled against these gentlemen by Badri. This lacuna in the evidence cannot be filled up by any speculation or conjecture. There must be a chain of facts from which an inference can reasonably be drawn, but, where the link is broken, the chain is destroyed and the vacuum created thereby cannot be bridged by any guess. Guess is not a substitute for inference and where there is a hiatus the Court is not permitted to bridge the gap by any adverse inference. 169. These gentlemen did not know at any point of time that these serious charges would be levelled against them at the time of argument. No indications of it was even given at the time the issues were settled. In these circumstances, these gentlemen had no duty to come to the witness-box to explain the imaginary charges that might be levelled against them and, therefore, no adverse inference can be drawn against these gentlemen for not giving evidence in this suit with regard to these imaginary charges. 170. Mr. Misra has acted according to the instruction of Jiwandas Mr. Hazra has acted according to the instruction conveyed to him by Mr. Misra. These two gentlemen owed a duty to protect the interests of the trustees who did not divulge their secret evil scheme to them. In these circumstances, I overrule the contention made against these gentlemen which is, however, subject to my finding relating to the drawing of the joint affidavit and the joint written statement including the voluntary statement of Badri stated earlier. 171. In these circumstances, I overrule the contention made against these gentlemen which is, however, subject to my finding relating to the drawing of the joint affidavit and the joint written statement including the voluntary statement of Badri stated earlier. 171. Now, these contentions were made with regard to the books of account of the trust estate by Mr. Dutt and Miss Roy. Why false entries would be made in the ledger if the trustees had a clean case? Why there should be so m my over-writings, interpolations and effacements of entries in the ledger? Why the payment made by the trustees to Mr. Ganguly would not find its place in the cash-book of the trust estate? Why Jiwandas would shirk his responsibility with regard to these books and why Dhanpal, who was present in the Court all through, would avoid the witness-box? 172. There is a complete absence of explanation on all these vital points and, therefore, it was said that it must be held that the trustees devised a novel plan for throwing out all these Deoras from this property and for achieving it, they have fabricated their books of account. And I do not find any cogent reason for overruling these contentions. In (67) Lacey v. Hill, LR 4 Ch. D 537 (543) Jessel M. R. says this: No man makes fictitious entries and commits forgeries except to conceal that which he knows ought to be concealed for his own credit ; and therefore, no one can doubt for a moment that Sir R. Harvey was perfectly well aware that he was committing these frauds. 173. What Sir George Jessel has said about Sir Harvey word for word applies to the trustees before me. The absence of any entry relating to the payments of costs to Mr. Ganguly further supports the contention of Mr. Dutt that the books produced by the trustees in the Court were not genuine books. And the acts and conduct spoken of earlier conclusively show that the trustees have come to this Court with unclean hands and with an evil design. 174. The trustees have created falsehoods after falsehoods in connivance with Badri and on these falsehoods they have filed this suit. They have created further falsehoods during the pendency of this suit and 'falsehood is a badge of fraud. 174. The trustees have created falsehoods after falsehoods in connivance with Badri and on these falsehoods they have filed this suit. They have created further falsehoods during the pendency of this suit and 'falsehood is a badge of fraud. Jiwandas has deliberately given untrue evidence on material points and the trustees have called witnesses whose statements are wholly untrue. These malfeasance and misfeasance, evil acts and conduct, deliberate falsehoods and perjuries and the falsification of the books of account are substantive evidence against the trustees. But, as they are circumstantial evidence, I will now go to the direct evidence on the record. 175. I have already rejected the untrue evidence of Jiwandas relating to the payment of costs to Mr. Ganguly and yet a few questions asked to Jiwandas are set out below 1995. You have told me that Badri had no defence in the suit; Yes. 996. And he was supporting you ? Yes. 997. Why should he spend money out of his own pocket for the litigation when he had no defence and when he was supporting you; He did so---he must have got some idea in himself which he did not express to me. 998. Did you ask him 'why you will spend so much money on my litigation-keep it with you; I did not ask. 176. If this evidence of Jiwandas is true, then Badri must be a Junatic, and if untrue, Jiwandas must be an untruthful man. Badri had ho defence to this action is the case of Jiwandas. Jiwandas has admitted in his evidence that it was not at all necessary for Badri to appear in this suit in view of his letter of August I. And it is outrageous to think that Badri would go on wasting his good money for the benefit of the trustees and Jiwandas would never know the reason for this lunacy of Badri. These deliberate untrue statements made by Jiwandas are of highest importance because they can only be created by a most unscrupulous man and they show that Jiwandas is capable of adopting any unfair means to fulfil this evil design. 177. Badri's evidence is that he lost his father at a very tender age and since his childhood he held the highest regards for Jiwandas whom he obeyed like his deceased father and he reposed absolute faith and confidence on Jiwandas. 177. Badri's evidence is that he lost his father at a very tender age and since his childhood he held the highest regards for Jiwandas whom he obeyed like his deceased father and he reposed absolute faith and confidence on Jiwandas. He further said that he had all through acted under the direction of Jiwandas. 178. Jiwandas in the tape has admitted that he had accepted the confidence of Badri and he had asked Badri to surrender, and Badri had surrendered to him. Jiwandas has also admitted that Badri did not exert his legal rights and Badri never disobeyed his instructions. And he admitted that Badri all through helped and assisted him in this suit. 179. Jiwandas in his evidence has admitted that it was agreed between him and Badri that this suit would be filed for eviction of Narayan's group from. this property and this claim of the trustees would be supported by Badri. The letter of August I was typed in the type-writing machine of the trust estate and Jiwandas admitted in the tape that he played foul with Badri and he told Badri. 'You are a child before me'-and I say that Badri was of course a child before Jiwandas. Now, to complete this picture two questions asked to Jiwandas are set out below 1380. Now, did you at any point of time ask Badri on or about August 1, 1961, 'Badri, did you have faith in me' ? I might have asked him. 1381. And what was the faith on rely on ? which you wanted Badri to I do not remember. 180. Jiwandas was unfaithful to forget this faith in the Court, but he admitted this faith in his private talk with Badri as recorded in the tape, and to prevent his vile scheme being exposed in the Court he offered money to Badri instead of a promised monthly tenancy and this monthly tenancy he untruthfully denied in the Court but in substance he admitted it in his talk with Badri. Badri reposed active confidence on Jiwandas and he has accepted this confidence. Badri gave the letter of August 1, 1961, on good faith to Jiwandas and Jiwandas has abused this confidence and he has fraudulently used it against Badri and his sons in this suit. 181. Badri reposed active confidence on Jiwandas and he has accepted this confidence. Badri gave the letter of August 1, 1961, on good faith to Jiwandas and Jiwandas has abused this confidence and he has fraudulently used it against Badri and his sons in this suit. 181. Falsehoods were created by the trustees in the letter of July 4, 1961, in the plaint and in the petition for appointment of the Receiver. These falsehoods were admitted in Badri's letter of August 1, 1961, in Badri's affidavit, in Badri's written statement and in his voluntary statement, and further these false admissions were procured by Jiwandas from Badri. And the moment Narayan's group went out of the picture, Jiwandas asked Badri to exert his legal right in the Court as recorded in the tape. He has accepted the confidence of Badri and yet he went against his own conscience. And he made another desperate attempt to prevail upon Badri in this telephonic conversations. 182. These false admissions and he suppression of true facts were procured by Jiwandas from Badri on a false representation that this property would be given solely to Badri on a monthly tenancy after the ejectment decree was obtained in this suit. Badri did everything as directed by Jiwandas. And Jiwandas betrayed Badri the moment Narayan's group went out of the picture. 183. No doubt Badri has played foul with his sons but at the same time he reposed active confidence on Jiwandas who has accepted this active confidence. In these circumstances, I accept the contention of Mr. Jain and hold that there arose a fiduciary relationship between Badri and the trustees, and so far as Badri is concerned, the trustees are to show that they have acted in good faith as enjoined by section 111 of the Evidence Act. They have failed to discharge this burden and the evidence on record conclusively show that they have acted in a manner which can only be termed as fraudulent. In (68) M/s. Pierce Hislie & Co. Ltd. v. Miss Violet, O. Wapshare, AIR 1969 SC 843 (846), Bachawat, J. says this: It is a settled rule of equity that any person bound in a fiduciary character to protect the interests of another person should not put himself in a position where his interest and duty conflict......... In (68) M/s. Pierce Hislie & Co. Ltd. v. Miss Violet, O. Wapshare, AIR 1969 SC 843 (846), Bachawat, J. says this: It is a settled rule of equity that any person bound in a fiduciary character to protect the interests of another person should not put himself in a position where his interest and duty conflict......... The onus is upon the appellant company to establish affirmatively that the transaction was righteous and that it did not gain any pecuniary advantage by availing itself of its fiduciary character. This principle is not merely confined to the case of a pecuniary advantage gained by abusing the fiduciary relationship, but it applies in all cases wherever there exists a fiduciary or a quasi-fiduciary relationship between the parties and an unjust advantage has been gained by abusing this relationship. Further, an abuse of confidence is a heinous fraud and, hence, the Courts of Equity invariably insisted on the person who is in a position to benefit himself out of the existence of a fiduciary or quasifiduciary relation to satisfy the Court's conscience that he did not derive any benefit or advantage by misusing his position. And whenever the dealing in question between them is highly objectionable on its face, the Courts of Equity have gone further than the Courts of law and presumed that it was a product of an abuse of confidence and threw the onus on the person who tries to uphold the dealings in question to show that he did not commit any fraud on the other party who is disputing its validity. 184. In (69) Re Coomber, (1911) 1 Ch. 723 (728) Moulton, L. J. says this : Fiduciary relationships are of many types; they extend from the relation of myself to an errand boy who is bound to bring me back my change upto the most intimate and confidential relations which can possibly exist between one party and another where the one is wholly in the hands of the other because of infinite trust in him. 185. Earl Jowitt in 'The Dictionary of English Law' (p. 800) has explained the meaning of 'fiduciary' in the following terms : Fiduciary Lat. fiducial, one who holds anything in trust. A person is said to stand in a fiduciary relation to another when he has rights and power which, he is bound to exercise for the benefit of that other. Earl Jowitt in 'The Dictionary of English Law' (p. 800) has explained the meaning of 'fiduciary' in the following terms : Fiduciary Lat. fiducial, one who holds anything in trust. A person is said to stand in a fiduciary relation to another when he has rights and power which, he is bound to exercise for the benefit of that other. Hence, he is not allowed to derive any profit or advantage from the relation between them, except with the knowledge and consent of the other person. Such is the relation between trustee and cestui que trust. Solicitor and client, principal and agent, and generally wherever from the position of two persons, one of them reposes confidence in the other. Promoters and directors also stand in a fiduciary relation to their companies (Vinter, Fiduciary Relationship). 186. One who stands to the other in a position of an active 'Confidence cannot be allowed to take advantage of his position and no Court will allow him to do it. Whenever a complaint is made against him, the law will presume everything against him and it is for him to satisfy the conscience of the Court that the acts 'Complained of against him was done by him in good faith and the dealings in question were fair and reasonable and that he did not take any advantage of his position and, further, he must satisfy the Court that he did not withhold any material information which he was bound to communicate to the other party. In Kerr on Fraud and Mistake (7th ed., pp. 185-86) the law is stated as follows: If the relation between the parties is one of a fiduciary nature, transactions 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 equity 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. It is a rule of equity 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. Wherever two persons stand in such a relation that, while it continues, confidence is necessarily reposed by the one and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availing himself of his position will not be permitted to retain the advantage, although the transaction could not have been impeached if no such confidential relation had subsisted. The obtaining of property or of any benefit through the medium and unconscientious abuse of influence by a person in whom trust and confidence are placed is a fraud of the gravest character. A person in such a fiduciary position is prohibited from competing with the trust business. The rule of equity which prohibits a man, who fills a position of a fiduciary character, from taking a benefit from the person towards whom he stands in such a relation, stands upon a motive of general public policy irrespective of the particular circumstances of the case. The rule is founded on considerations as to tile difficulty which must, from the condition of the parties, generally exist of obtaining positive evidence as to the fairness of transactions which are peculiarly open to fraud and undue influence. The policy of the rule is to shut the door against temptation. 187. Section 111 of the Evidence Act is not a mere technical rule of evidence but it is a substantive and a positive rule of law. The principle laid down in this section is of universal application and this principle- "applies to every case where influence is acquired and abused, were confidence is reposed and betrayed" as said by Lord Kingsdown in (70) Smith v. Key [1859] 7 HLC 750 (799). Hence, it is for the trustees not only to show that they have acted in good faith, so far as Badri is concerned, but they are also to justify their acts in order to get rid of the application of the law relating to the presumption of fraud as laid down by Lord Harwick in (71) Lord Chesterfield v. Jensen. Hence, it is for the trustees not only to show that they have acted in good faith, so far as Badri is concerned, but they are also to justify their acts in order to get rid of the application of the law relating to the presumption of fraud as laid down by Lord Harwick in (71) Lord Chesterfield v. Jensen. 2 Yes Sen 125, and further in Halsbury's Laws of England (2nd ed., vol. 13, p. 16, Article 12) it is said, "In equity pre-3umption of fraud could be acted upon". The trustees have failed to do so and further their dirty acts conclusively establish that Jiwandas and his co-trustee have committed a fraud on Badri. 188. Now, the maxim acta exteriora indicant interiora secreta was applied in (72) The Six Carpenter's, case, 8 Coke 146 and Reed. J. in (73) State v. Teeter, 27 NW 485 said: It often occurs in human experience that the mere fact that a particular act has been done affords the best evidence of the motive and intention with which it is done. A man's acts and conduct are the best manifestation of what have passed in his mind. His secret intention can only be inferred from his external acts judged in the light of the surrounding circumstances. External acts, conduct and utterances of a man in a particular circumstance reveal his mind and bring out the internal secreta of his heart. And the law judges his mind by invoking this well-known maxim Acta exteriora indicant interiora secreta. 189. In this view of the matter I accept the contentions of Miss Roy and hold that the exposers of these foul acts and corrupt practices coupled with the direct and circumstantial evidence have brought out the evil intention of these men in the broad light and they show that they had two separate and independent evil objects. The first one relates to the collusive agreement between Jiwandas and Badri for the eviction of Narayan's group and Badri's sons from this property by the machination of this false and collusive suit and then to give this property to Badri on a monthly tenancy on a rent to be agreed upon between them at the time of creation of such tenancy. Their evil scheme was to keep unfettered the dirty hands of Badri so that he could suppress his true defence and of his sons and could admit the false and fraudulent claims of the trustees. 190. And in terms of this collusive agreement the trustees have filed this collusive suit in collusion with Badri and Mahabir by creating all these falsehoods in connivance with them. They have further surreptitiously procured the appointment of Badri as guardian ad litem of all these sons for this suit and to achieve the evil object Badri had repeated all those falsehoods and had deliberately suppressed his own and his 'sons' true, defence in those pleadings in collusion with Jiwandas. In these circumstances, all these sons became the worst victim of this collusive agreement and these evil acts of these dishonest men. 191. Now, I will deal with the other evil object and the scheme. The lease of 1910 would have come to an end with the expiry of August 1, 1961, but the trustees, with a view to make an unlawful gain filed the 1953 suit, but by adopting this means they fell into their own trap because they could not realise any rent from the Deoras due to the pendency of that suit. And then to get out from this ackward situation they did mot miss the opportunity in December, 1959 when Narayan and Badri met Jiwandas. And at the insistence of the trustees this lease was determined and then separate monthly tenancies were created as held earlier. The trustees were sore about the creation of these new tenancies and kept the 1953 suit hanging as a sword on the Deoras. And, further, they could not swallow this bitter pill and, hence, waited for another opportunity to come. Badri and Mahabir were in good terms but they were in very bad terms with Narayan and their quarrel did not come to an end with the end of their litigation. Jiwandas (Qs. 238-40) knew all these facts and maintained cordial relationship with them. He did so with an eye to evict them by any means from this property by taking full advantage of this long standing bitter quarrel between these two groups. 192. And to achieve this evil object the trustee prepared a secret evil scheme. Jiwandas (Qs. 238-40) knew all these facts and maintained cordial relationship with them. He did so with an eye to evict them by any means from this property by taking full advantage of this long standing bitter quarrel between these two groups. 192. And to achieve this evil object the trustee prepared a secret evil scheme. There was nothing in writing to show the premature determination of the lease of 1910 and the creation of the said new monthly tenancies. Narayanwas a hard nut to crack and, hence, this evil scheme was that since Jiwandas treated Badri as his son and Badri had the highest regards for Jiwandas, Jiwandas would catch hold of Badri and would make a false promise to him that this property would be given solely to him on a monthly tenancy after the eviction of Narayan's group for which this suit would be filed by the trustees by suppressing all true facts and by creating untrue case and this false case would be supported by Badri in view of the said false promise, and then the trustees would procure a decree for the eviction of all these Deoras from this property. Here I must say what prompted Mahabir to participate in this evil acts remained a mystery to this Court because he kept himself out of this Court-room at the instance of Jiwandas which is clelr from the fact that he allowed his Solicitor Mr. Ganguly to produce those privileged documents in Court for cross-examination of Badri. 193. Now, to execute this evil scheme Jiwandas caught hold of Badri and made the said false promise to him and Badri fell into this trap out of sheer greed and agreed to his proposal without knowing this evil and secret design of the trustees and he was lured to sacrifice the interests of his own children. The falsehoods spoken of earlier were created from the beginning to the end solely for the purpose of achieving this evil and secret object of the trustees and this fraudulent object and this scheme were kept hidden from Badri by Jiwandas. And after Narayan's group went away with more than Rs. The falsehoods spoken of earlier were created from the beginning to the end solely for the purpose of achieving this evil and secret object of the trustees and this fraudulent object and this scheme were kept hidden from Badri by Jiwandas. And after Narayan's group went away with more than Rs. 58,000 by submitting to' a decree for their own ejectment, the trustees pounced upon Badri and his sons, but before unmasking their faces they made Mahabir inactive with the vile objective' of keeping Badri bound within the four corners of the joint written statement, 194. The direct and the circumstantial evidence, taken as a whole, feed to an irresistible conclusion that their evil scheme was to use Badri as a pawn on the chess-board for mating Narayan's group and then to' checkmate Badri, Mahabir and all these sons. This fraudulent and evil design was wholly unknown to Badri who was trapped by Jiwandas with that false promise and he was lured by that false promise and out of sheer greed played foul with his own children. 195. Now, that Badri was a party to the collusive arrangement Mr, Hazra contended that the maxim In pari delicto potior est condition defendants et possidentis prevents Badri from setting up his own fraud, but I overrule this plea because the maxim has no app1ication as contained by Mr. Jain in the facts and circumstances of this case. Badri is not a party to the secret arrangement which was entered into by and between the trustees. Further, Narayan was not defrauded by the fraud of Badri and, though it is true that Badri had committed a fraud on his own sons, yet this fraud was arrested by Badri when Jiwandas unmasked himself and let loose the real fraud on Badri and on his sons after obtaining the consent decree from Narayan's group. Badri divulged the collusive arrangement between him and Jiwandas and, hence, his elder sons came to protect their interests including the interests of their minor brothers. In other words, it was Jiwandas who had prevented Badri from taking advantage of their collusive agreement and, further, no money nor any property was received by Badri from the trustees under that collusive agreement. Furthermore, Badri is not in pari delicto with the trustee because he was not a party to the fraudulent and collusive arrangement which Jiwandas and with his co-trustee. Furthermore, Badri is not in pari delicto with the trustee because he was not a party to the fraudulent and collusive arrangement which Jiwandas and with his co-trustee. Badri is also protected by the judgment of the Supreme Court in the case of (72) Sitaram v. Radhu Bari, AIR 1963 SC 534 and, further in (75) Raghupati Chatterjee v. Narasihgha Hari Das, AIR 1923 Cal 90 (95), Sir Ashutosh Mookerjee J. says this :- We are unable to appreciate on what conceivable principle of justice, equity and good conscience, the Court may be thus called upon to promote actively the roguery of B at the ex pense of A. merely because B had helped A to cheat C, it does not follow that the Court should assist B to cheat A. We are clearly of opinion that the plaintiffs in the present case have established no claim whatsoever to the assistance of the Court, to enable them to commit a fraud upon the true owner and they must be left to congratulate themselves upon nothing beyond a useless mortgage and the memory of a successful fraud which has brought them no benefit whatever. 196. Badri could not cheat his own sons, but the trustees arc trying to cheat him and his sons by the machination of all these falsehoods fraudulently procured by them from Badri. Their catalogue is fully or evil acts, malpracties, misconducts and misbehaviour and they speak for themselves, and yet it was said that Badri should be debarred from setting up his own fraud and collusion against the trustees, but I say that it is unjust to do it. Further, this Court is entitled to arrest the effect of all these evil acts of the trustees. All types of fraud and collusion must be suppressed. And it is the paramount duty of this Court to give relief to the victim who is not a party to the fraud and deceit because, the maxim is Dolus et fraus una in parte sanari debent, And the golden rule is that fraud and justice can never dwell together Fraus et jus inunquam cohabitant and. hence I hold that Badri is not debarred from setting up his own fraud and collusion in this suit. The trustees have played a dirty game with Badri. They are wrong-doers and, hence, everything must be presumed against them. hence I hold that Badri is not debarred from setting up his own fraud and collusion in this suit. The trustees have played a dirty game with Badri. They are wrong-doers and, hence, everything must be presumed against them. And the maxim is in odium spoliatoris omnia prasumuntur. 197. In the premises, my answer is 'no' to Issue Nos. 4(a), 4(b) and the additional issue, and 'yes' to Issue No. 4(c). My answer to Issue No.6 is that the plaintiffs and the defendants Nos. 4 and 6 have acted in collusion with each other to deprive the defendant Nos. 7 and 8 of their legal rights to this property. My answer to Issue No.7 is that the said consent decree is not binding on the defendant "Nos. 4 to 11 and it does not affect their rights in this property. 198. Now the trustees have claimed Rs. 517-16 P. as arrears of rent but, as pointed out by Mr. Dutt, It was claimed under the lease of 1910. In view of my findings that this lease was determined on December 23, 1959, the question of any rent being due under this lease can never arise. In this view of the matter the trustees cannot even get Rs. 517-16 P. from these defendants. 199. There will be a permanent injunction against the plaintiffs from executing the consent decree dated December 22, 1970, passed in this suit so far as the rooms allotted to the defendant Nos. 4 to 11 are concerned and the suit is dismissed as against these defendants. [ Thereafter the learned Judge gave directions regarding cost of the suit and certain other matters. ]