NAWAB SINGH Vs. DALJIT SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal whose suit was decreed by the trial Court, but dismissed by the lower appellate Court. The facts may be stated. On 28 June 1920. one Phul Kunwar sold the plaint property to Daljit Singh, defendant, to the present suit for Rs. 400. On 21 April 1921, Daljit Singh sold the same property along with certain mortgagee rights to Gajraj Singh for Rs. 800. It has been alleged in. the present controversy that the sale in favour of Gajraj was a bogus sale and it was not the intention of the parties that ownership should be transferred to Gajraj, but it was apprehended that the sale by Phul Kunwar might be pre-empted by a co-sharer and therefore Daljit and Gajraj adopted the trick of getting a document of transfer executed, Gajraj being an equal cosharer with the potential pre-emptor. A pre-emption suit was actually filed by one Narain Singh on 21 June 1921, and he impleaded Phul Kunwar, Daljit and Gajraj as defendants. His allegation naturally was that the sale by Daljit to Gajraj was a bogus sale. In this pre-emption suit Daljit and Gajraj both pleaded that the sale of 21 April 1921, was a real and genuine sale by which ownership was transferred from Daljit to Gajraj; Daljit further appeared as a witness and said that he had received the consideration of Rs. 800 mentioned in the sale-deed of 21 April 1921. In the result the pre-emption suit was dismissed.

(2.) It appears that Gajraj applied for mutation on 6 September 1923 on the basis of the sale-deed in his favour. This application however was dismissed on the ground that the name that stood in the revenue papers as against the property was the name of Phul Kunwar and ?he name of Daljit even, the vendee from Phul Kunwar, had not been mutated and it was not possible therefore to enter the name of Gajraj. Gajraj and his heirs do not seem to have taken any steps after this. On 16 March 1927, Daljit asked for the mutation of his name on the basis of the sale-deed dated 28 June 1920, executed by Phul Kunwar and his name was mutated. Daljit has remained in possession of the property all along. In January 1931 the present suit was instituted by Nawab Singh alleging himself to be the reversioner of Gajraj Singh for recovery of possession of the property sold to Gajraj Singh by Daljit Singh on 21 April 1921. Daljit Singh disclosed the true nature of the transaction in his written statement and pleaded that the object of the transaction was to defeat a possible pre-emption suit and as a matter of fact no consideration passed upon the document of 21 April 1921. The lower appellate Court has distinctly held that sale-deed of 21 April 1921 was "fictitious without consideration and was executed on account of the fear of a pre-emption suit." He took into consideration the fact that Gajraj Singh and Daljit Singh were related, that both of them lived in one and the samehouse and that the mortgage-deed which was sold along with the property by the sale-deed of 21st April 1921 also remained all along with the defendant. Daljit Singh. The two sale- deeds, namely, one in favour of Daljit and the other in favour of Gajraj were also produced by Daljit Singh. On these considerations the lower appellate Court came to the conclusion that the sale-deed in question was "fictitious and without consideration" and dismissed the plaintiff's suit. In second appeal it is argued that it was not open, to the defendant to plead fraud and to disclose the true nature of the transaction. It is said that a deed cannot be avoided on the ground of fraud by a party to the fraud and reliance is placed upon the case of Sidlingappa V/s. Hirasa (1907) 31 Bom. 405. Reference is also made to the cases of Kamayya V/s. Mamayya 1918 Mad. 365 and Shiva Narain Ram V/s. Phuljharai 1919 Pat. 539. These cases, no doubt support the contention of the plaintiff-appellant, but the Bombay case was considered by this Court in the case of Vilayat Husain V/s. Misran 1923 All. 504, and the Letters Patent Bench came to the conclusion that that case was of doubtful authority. After a review of certain English decisions and following a well considered judgment of the Calcutta High Court in the case of Raghupati Chatterji V/s. Nrishingh Hari Das 1923 Cal. 90, it is held that: Where a plaintiff is relying upon a deed, the defendant is entitled to give evidence of the circumstances under which the document came into existence and when these circumstances include an allegation of a joint fraud by both plaintiff and defendant, the particulars of that fraud must be pleaded; and it is then the duty of the Court to look into the matter, and if the Court comes to the conclusion that the parties were acting together with a view to perpetrate a fraud and did in fact perpetrate the fraud, and that there is no difference in the degree of the guilt of the plaintiff and that of the defendant, the duty of the Court is not to assist either party.

(3.) Applying this principle I am of the opinion that it was open to the defendant to plead the circumstances under which the document which is the basis of the present suit came into existence and when those circumstances are scrutinised there cannot be the slightest doubt that Gajraj Singh and Daljit Singh both sat down in order to defraud a possible pre-emptor who was actually defrauded and under these circumstances "the (estate should lie where it falls" and the Court should help neither party. This principle was mentioned with approval by their Lordships of the Privy Council in the case of Petherpermal Chetty V/s. R. Muniandy Servai (1908) 35 Cal. 551, where a passage from Mayne's Hindu Law, Edn. 7, p. 595 para. 446, was quoted in extenso, and it was observed that the principle was correctly stated by the learned author. In the Bombay case the conflict between the two legal maxims nemo allegans turpitudinem suam audiendus and in pari delicto potior est conditio possidentis was stated and it was said that authority could be cited for the contention of either party who sought to invoke the aid of the legal maxim that best suited him, but their Lordships of the Bombay High Court preferred to follow the rule laid down in allegans turpitudinem suam. I have already said that the authority of the Bombay case was doubted by this Court in Vilayat Husain V/s. Phuljharia 1919 Pat. 539 and by the Calcutta High Court in Raghupati Chatterji V/s. Nrishingha Hari Das 1923 Cal. 90. It was also doubted by the Lahore High Court in Qadir Bakhsh V/s. Hakam 1932 Lah. 503, where Tek Chand, J., delivering the judgment of the Full Bench, has reviewed the entire case law on the subject and has pointed out that there is no real conflict between the two maxims and that whereas the one embodies the general rule the other provides an exception: A parson who has polluted his hands by being a party or privy to a fraudulent transaction shall not be allowed to approach the fountain of justice with his own infamy on his lips and obtain relief on the strength of such a transaction, and the moment he relies on such an agreement he will be told nemo allegans suam turpitudinem audi endus est.