TANAJI DAGDE Vs. SHANKAR SAKHARAM

JUDGEMENT

(1.) Both the Courts below have found that the purchase at the Court sale was a benami transaction. Either this benami transaction was free from or tainted with fraud. If free from fraud then the decision of the Courts below would be clearly right. If tainted with fraud, and this appears to be the truth from the defendant s own pleadings, then both the plaintiff and the defendant must be taken to have been parties to this fraud upon innocent third persons; and so the old rule, which was laid down more than a century ago, to govern such cases, would in my opinion apply: "Let the estate lie where it falls." Here in the events that have happened the estate has fallen into the hands of the defendant, and I can see no equitable ground upon which the plaintiff, himself a party to the fraud, as he now alleges, could expect us to transfer it from the defendant to himself. I think that while Section 66 of the Code of Civil Procedure (Act V of 1908) has no applicability directly to a case of this kind, it may be doubted whether the commentary upon it, relied upon in the arguments here and in the Court below does not go too far. Imerely make that observation, because that commentary appears to have influenced the mind of the Judge of the first Court. It is not, however, any part of the ground upon which I think that this case ought to be decided.

(2.) For these reasons, I am of opinion, that the decision of the Court below is right and that this appeal must be dismissed with all costs. Hayward J.

(3.) I concur and have only to add some remarks with regard to the point raised that the judgment of the lower appellate Court was insufficient under Order XLI, Rule 11, read with Rule 31 of the first Schedule of the Code of Civil Procedure. It was said in the case of Puttapa v. Yellappa (1903) 5 Bom. L.R. 233 by a Bench of this Court, that a formal judgment was necessary in the case of an appeal dismissed without sending notice to the lower Court. But it is to be observed that no reasons were assigned for that decision. There is also to the same effect the case of Rami Deka v. Brojo Nath Saikia (1897) I.L.R. 25 Cal.97 decided by the Calcutta High Court but a different view was, after commenting thereon, taken in the case of Samin Hasan v. Piran (1908) I.L.R. 30 All. 319 by the Allahabad High Court. These decisions were, however, under Sections 551 and 574 of the old Code of Civil Procedure of 1882 and what has now to be considered are the corresponding provisions of Order XLI, Rules 11 and 31 of the First Schedule of the new Code of 1908.