SHEIKH VILAYAT HUSSAIN Vs. MUSAMMAT MISRAN

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.

(2.) The circumstance are as simple as they can be, Sheikh Vilayet Hussain 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 demands of creditors. That deed of sale was in fact executed on the 12 of September 1904 and no consideration passed from Murtammad Ismail to the ostensible vendors. Muhammad Ismail put forward a claim and gos this very property released from the operation of the decree. Therefore, the contemplated fraud was successfully carried out. It is probable 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 which are not very clear, on the death of Muhammad Ismail. Vilayet Hussain 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 5in the year 1909.

(3.) On the 30 of June 1917, after a lapse of some nine years, the plaintiffs, who are the heirs of Muhammad Ismail, brought the suit to recover possession on the strength of the sale-deed of the 12 of September 1904.