KAMMULA VENKATARAMAYYA Vs. YILLAPANI PULLAYYA

JUDGEMENT

(1.) This second Appeal has been referred to a Bench by Venkataramana Rao, J., because the views expressed by Coutts-Trotter, C.J., in Kamayya V/s. Mamayya (1916) 32 M.L.J. 484 and Subbaraya Chetty V/s. Subbaraya Chetty (1926) 24 L.W. 500 and with Ramesam, J., in Ramaswami Naicker V/s. Alamelu Ammal (1923) 46 M.L.J. 298 and by Abdur Rahim, J., in Suryanaraya Nayakaram V/s. Butchalah Naidu (1916) 1 M.W.N. 107, appear to be in conflict with the other decisions of this High Court and of the Privy Council in Petherperumal Chetty v. Muniandy Servai (1908) 18 M.L.J. 277 : L.R. 35 Cal. 551 (P.C.) and other cases.

(2.) The suit out of which this second appeal arises was one instituted by a minor plaintiff by his father and next friend and his brother for recovery of possession of the suit lands which were conveyed in the name of their deceased mother Bangaramma by her father, the first defendant. The second defendant is the son of the first defendant. The sale deed in question is dated 11 October, 1916. The defence set up is that it was a benami transaction entered into by the first defendant to cheat his son the second defendant in order to deprive him of getting a share in the property and that the consideration mentioned in the sale deed was not paid and not true; in other words, that the transfer was for the purpose of excluding the property from partition. Subsequent to the sale deed the first defendant filed O.S. No. 946 of 1918 in the District Munsif's Court of Kovvur against his son the second defendant for partition of the joint family property. In the Schedule he did not include the suit property as one of the items of the joint family property. The second defendant objected to the exclusion of the property. In reply to this objection the first defendant filed an affidavit wherein he stated that the suit properties were sold by him to his daughter Bangaramma but nevertheless he had no objection to include them in the suit but said that the properties should be allotted to his share at the partition. He also filed a petition for amendment wherein for the reasons mentioned in the affidavit he asked that the suit properties might be allotted to his share. Subsequently there was a compromise deed between the first defendant and the second defendant and the suit properties were included in the partition but allotted to the share of the first defendant as desired by him and he got possession of the properties from the second defendant who at that time was in possession of them. After the recovery of these properties the first defendant appears to have executed a will Ex. A in 1923, wherein he omitted to dispose of the property. The learned District Munsif found that the sale deed was a genuine transaction and further that it was not open to the first defendant to plead his own fraud and resist the claim of the plaintiffs. The Subordinate Judge, however, held that the transfer was benami and that the plaintiffs were not entitled to get possession of the suit lands from the first defendant. The finding of the learned Judge on the question of benami is a finding of fact and must therefore be accepted.

(3.) The question before us is whether it is open to the first defendant to plead his own fraud in defence to the claim of the plaintiffs for possession. No finding upon this question was given by the learned Subordinate Judge, but as it was clear that this point was argued before him, Venkataramana Rao, J., allowed it to be argued. 3. As our learned brother points out, there are two well-recognised principles in English law : (1) that no man can set up his own iniquity as a defence any more than as a cause of action. This principle was laid down in Doe dem Roberts V/s. Roberts (1819) 2 Born. and Ald. 367 : 106 E.R. 401 and (2) restitutio in integrum is excluded in respect of all acts of parties to contracts void for illegality. An exception is engrafted to this rule by allowing a locus penitentiae to one or both of the parties in consideration of the fact that the illegal purpose of the contract has not yet been fulfilled. But where the illegal purpose has been partly fulfilled, no relief is given.