VADDE VENKATASWAMI Vs. BOMMARAJU VENKATA SUBBAYYA

JUDGEMENT

(1.) The material portion of the judgment is as follows.

(2.) It is not now disputed that all the property concerned in the suit, as has been found by the Lower Courts, was the property of Karavadi Ramaswami at the time of his death in I8601 and that after his death Mahalakshmamma had only a widow's interest in it. The sale-deed Ex. I, which I have mentioned, was dated the 7th September 1908 and was executed by Rangamma and her three sons then living, the Plaintiff, Defendant 43 and an elder brother, Venkatappayya, now dead. It was in favour of Defendant 1, who is now represented by Defendants 2 to 4 as his legal representatives and by other contesting Defendants as transferees from him. Ex. I is a registered document; but in it a small item of one cent is included which never belonged to the vendors and which it has been found was never intended by any of the parties to Ex. I to pass to the vendee. It was included only for the purpose of getting the document registered in a particular Sub-Registrar's office, in which no sale-deed relating to the other items, which were intended to be transferred, could have been registered. The Plaintiff in his plaint pleads that the inclusion of item 4 in the document and getting the document so registered in an office where otherwise it could not have been registered was a fraud on the Registration law and that therefore the document has not been validly registered and he can ignore it. On the facts there is no doubt that that was a fraud against the Registration Act. The evidence is in effect that the plaintiff, his brother, Defendant 43, and Defendant 1, the vendee, all joined in that fraud. The District Munsif and the Subordinate Judge therefore found that Ex. I was not validly registered and had no legal effect. Before us a contention has been raised for the contesting Defendants that the Plaintiff cannot plead his own fraud in that way and that, even if this fraud had come to the notice of the Court otherwise, no relief could be given to the plaintiff in the suit on that basis but that the maxim in pari delicto potior est conditio defendentis et possidentis should be applied. It cannot be denied that as a general rule a Plaintiff cannot plead his own fraud or illegal act as a basis of his claim or as a necessary step towards the success of his claim. His position in that matter is not made better by showing that the Defendant has joined him in the fraud or illegal act or by the fraud or illegal act not being pleaded but coming to light in the course of the trial of the suit or even in the hearing of an appeal. Gascoigne V/s. Gascoigne (1918) 1 K.B. 223 and Scott V/s. Brown (1982) 2 Q.B. 274. In the latter case the plaintiffs sued on an illegal contract involving an indictable offence. The illegality was not pleaded, and, although the trial Judge noticed it he did not let it affect the disposal of the case before him. It was the Lord Justices in the Court of Appeal who themselves took the point. Smith, L.J. said If a plaintiff cannot maintain his cause of action without showing, as part of such cause of action, that he has been guilty of illegality, then the Courts will not assist him in his cause of action, and he applied the maxim In pari delicto potior est conditio possidentis. Lindley, L.J. said It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality, the Court ought not to assist him.

(3.) I do not think there can be any doubt about the general rule. But it has been suggested that there is an exception when the fraud or illegality disclosed is in contravention of some rule of public policy embodied in a Statute and that, if that is so the plaintiff may be allowed to vindicate the law and public policy to his own profit in spite of his own fraudulent or illegal act. So far as I understand the matter, there is no such exception. In Cottington V/s. Fletcher (1941) 2 Atk. 156 : 26 E.R. 498, the plaintiff wras a Papist who owned an advowson, i.e., the right to present to a living in the church of England. By a Statute, William and Mary C. 26, no Papist can present to a living in the church of England, nor can any one who holds an advowson in trust for a Papist. To protect his property Cottington assigned the advowson to Fletcher under an arrangement that Fletcher should hold it in trust for him, and Fletcher presented to the living the second defendant in the case. Subsequently Cottington became a conforming Protestant, and he then sued for a re-assignment of the advowson. Lord Hardwicke indicated his opinion that, if Fletcher had raised a demurrer that Cottington could not plead his fraud against the law in that way, Fletcher would have succeeded. The report of that case is not very full; but in Muckleston V/s. Brown (1801) 6 Ves. Jun. 52 : 31 E.R. 934. Lord Eldon, commenting upon the case, expressed strongly the same view, though he appears to have doubted whether the report was correct in another respect. There it will be seen that Cottington was disclosing a contravention of what was regarded as a matter of the highest public policy, and yet he would not have been allowed to do so if objection had been raised. In Curtis V/s. Perry (1802) 6 Ves. Jan. 740 : 31 E.R. 1285 Chiswell, a Member of Parliament had allowed ships bought by his partner, Nantes, with the partnership money to be registered in the name of Nantes alone in order that they might be used for contracts with the Government in violation of the Contractors Act, under which no Member of Parliament could have any interest in any contract with the Government. Lord Eldon said The moment the purpose to defeat the policy of the law by fraudulently concealing that this was his (Chiswell s) property is admitted, it is very clear he ought not to be heard in this Court to say that it is his property.