JADU NATH PODDAR Vs. RUP LAL PODDAR

JUDGEMENT

(1.) In the suit, out of which this appeal arises, the plaintiff seeks to obtain a declaration of his right to certain property and to recover possession of it from the defendants. He had executed a deed of relinquishment in favour of the defendants) in which he alleged that in respect of that property he was the benamidar of the defendants, and he now sues to have it established that this deed of relinquishment was a colourable deed, which he executed to save his property from being sold in execution of decrees obtained against him by his creditors. He alleges that his intended fraud was not carried out because he won the appeals he preferred in the suits with his creditors and so he desires to get hack possession of his property. The defendants traverse his allegations. The Lower Appellate Court has given the plaintiff a decrees.

(2.) The defendants appeal on two grounds--(1) that the plaintiff is estopped from alleging the deed of relinquishment to be colourable and (2) that the plaintiff is not entitled to rescind a dead he executed for the purpose of perpetrating fraud.

(3.) There is clearly no estoppel in this case. The defendants were in no way misled and thereby induced to do anything or alter their position. Further, the rule laid down by this Court is that, when the intention to commit fraud has not been carried into effect, a beneficial owner is entitled to sue for a declaration that a deed of transfer executed by him is benami. This rule has no doubt been attacked by the Madras High Court in the case of Yaramati Kriahnayya v. Chundru Papayya (1897) I.L.R. 20 Mad. 326, and a different rule has been laid down by the Bombay High Court in Chenviroppa V/s. Puttappa (1887) I.L.R. 11 Bom. 708, but I see no reason to dissent From the rulings of this Court on the subject. I would therefore dismiss this appeal with costs. Mookerjee, J.