MISRAN Vs. VILAYAT HUSAIN

JUDGEMENT

(1.) This is an interesting case which has given rise to a discussion as to under what circumstances a defendant can properly plead and rely upon facts showing that he and the plaintiff were in pari delicto. The circumstances are as simple as they can be Sheikh Vilayat Husain and Musammat Imaman were, on the 12 of September, 1904, indebted to various creditors. There was at least one decree outstanding which was in the course of execution. In that position of affairs they turned to Muhammad Ismail, who was a friend, and who agreed with them that a fictitious deed of sale of property should be executed in his favour, so that that might serve as a shield against the depends of creditors. That deed of sale was in fact executed on the 12 of September, 1904, and no consideration passed from Muhammad Ismail to the ostensible vendors. Muhammad Ismail put forward a claim and got this very properly released from the operation of the decree. Therefore the contemplated fraud was successfully carried, out. It is probable that Muhammad Ismail collected the rents for some period; but if this was done, it was only to make the transaction of the 12 of September, 1904, appear to be a genuine and valid one. Under some circumstances winch are not very clear, on the death of Muhammad Ismail, Vilayat Husain and Musammat Imaman got possession of the house and began to collect the rents themselves. In this way they asserted possession and dominion over the house in question. That was in the year 1909.

(2.) On the 30 of June, 1917, after a lapse of some 9 years, the plaintiffs, who are the heirs of Muhammad Ismail, brought the suit to recover possession on the strength of the sale-deed of I he 1.2 of September, 1904.

(3.) It is now important to turn to the pleadings to see how the case was framed by the parties. As one would expect, the pleading in the plaint was quite simple; it was based upon a sale-deed, the death of Muhammad Ismail and the realization of rents by the defendants. To that apparently genuine claim the defendants set up what they contended was the true story; that is to say, they drafted pleas which showed, if they were true, and as they were subsequently found to be true, that Vilayat Husain and Muhammad Ismail were in pari delicto, that is to say, not one man but both were jointly engaged on a fraud in winch each was equally culpable.