NAWAB SINGH Vs. DALJIT SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for recovery of possession brought by Nawab Singh against the defendant Daljit Singh on the basis of a registered sale deed dated 21 April 1921, executed by Daljit Singh in favour of one Gajraj Singh, who was the uncle of the present plaintiff Nawab Singh. The defendant pleaded that the document did not represent a genuine transaction but was a fictitious one and no title under it had passed to Gajraj Singh. He supported this plea by alleging that previously one Mt. Phul Kunwar had sold this property to Daljit Singh, who was not a co-sharer in the village, and that there was an apprehension of a suit for pre emption and in order to defeat the claim for pre- emption Daljit Singh fictitiously executed the sale-deed in favour of Gajraj Singh, who was a co-sharer. It has been found that a pre-emptor, Narain Singh actually instituted a suit for pre-emption on 21 June 1920, against the vendee Gajraj Singh, presumably impleading Daljit Singh also, and the suit was dismissed on the ground that the property had passed to a co-sharer and was no longer liable to be pre-empted. Thus the alleged fraud actually succeeded. It appears however that Gajraj Singh did not succeed in getting mutation of names effected, as previous to him Daljit Singh had not got his own name mutated. Daljit Singh however later on got his name mutated on the strength of the previous sale-deed dated 28 June 1920. It is an admitted fact in this case that Daljit Singh is in possession of the property, whereas plaintiff No. 1 is not.

(2.) The Court of first instance held that the sale did not represent a fictitious transaction and decreed the claim. The appellate Court has however come to the conclusion that it was a fictitious document and had been executed fraudulently in order to defeat the claim of Narain Singh, pre-emptor, and that the fraud was committed by Daljit Singh and Gajraj Singh jointly and that the fraud actually succeeded. The Court declined to help the plaintiff and dismissed the suit. On appeal a learned Judge of this Court has affirmed the decree, holding that the plaintiff is not entitled to any relief from a Court of law when the person from whom he has derived a title was a party to the fraud. If Daljit Singh had come to Court seeking some relief against Nawab Singh, then even if it had been found that the transaction was a fictitious one we would have certainly declined to grant any relief to Daljit Singh when the fraud committed by him had actually succeeded. The question that arises in this case is the converse one, namely whether Nawab Singh can be given some relief against Daljit Singh who is in possession; that is to say, whether Daljit Singh can be prevented from exposing the true nature of the transaction and showing that the sale deed was fraudulently executed and that Gajraj Singh was a party to that fraud.

(3.) There is some conflict of opinion on this point in India. In the case of Sidlingappa V/s. Hirasa (1907) 31 Bom 405, the owner of a property had executed a benami sale deed and the benamidar had sold the property to the plaintiff's father and the attachment of that property was successfully resisted on the strength of that benami transaction against a creditor; the Court held that the defendant owner could not be allowed to set up his own fraud when the plaintiff brought a suit to claim possession of the immoveable property, and the Court decreed the plaintiff's claim for possession holding that he was entitled to succeed. This case was followed by a Bench of the Madras High Court in Sidlingappa V/s. Hirasa (1907) 32 MLJ 484, where a person who had conveyed property benami to another for the purpose of effecting a fraud on his creditors, was not allowed, where the fraud had been effected, to set up the benami character of the transaction by way of defence in a suit by the transferee for possession under the conveyance. A similar view was expressed by a single Judge of the Patna High Court in Shiva Narain Ram v. Mt. Phuljharia 1919 52 IC 402. The learned Counsel for the plaintiff also relies on the remark of their Lordships of the Privy Council in Petherpermal Chatty v. Muniandy Servai(1908) 35 Cal 551, that the result of the authorities on the subject of the benami transactions had been correctly stated in Mayne's Hindu Law, Edn. 7, para 446, p. 595. In the case before their Lordships the fraud had not actually been carried out and the plaintiff, the true owner, was allowed to recover possession of the property.