NAMBIAPPA MUTHIRIAN Vs. CHETTI

JUDGEMENT

(1.) THIS is a petition to revise the decree of the Judge of the Small Cause at Trichinopoly dated 17 October 1933 in 13. O.S. No. 6031 of 1932, a suit to recover the amount due on a promissory note executed by the defendant in favour of the plaintiffs. The defence put forward by the defendant was as follows: There were disputes between him and his elder brother with regard to the partition of the i properties, and as the elder brother had incurred large debts which he want-ad to be treated as family debts, the defendant himself claimed that he had also incurred debts and that they should be treated as family debts too and that he accordingly executed the suit promissory note in favour of the plaintiff nominally and without consideration and got it allotted towards his share in the family partition, so that he might not suffer loss by taking over his elder brother's debts. In short the defence was that he executed the promissory note as a piece of evidence to convince his elder brother that there was a debt due by him when in fact there was none. In his evidence also the defendant was equally frank about his own fraud. He stated that in order to convince his brother that he had debts, he executed the promissory note in the name of the plaintiffs. One of the questions that arose for decision by the Court below was whether such a plea of fraud was available to the defendant. The lower Court seems to have thought without any justification, so far as can be seen from the evidence, that the plaintiffs were in pari delicto with the defendant and that they were participators in the fraud that was played on the elder brother of the defendant. When it is remembered that the 1 plaintiff is only a minor, it will be seen how unjustifiable that conclusion is. At least so far as the 1 plaintiff is concerned, it is most unreasonable to say that he was a party to the fraud. Even assuming that plaintiff 2, who is the mother of plaintiff 1, was a party to the fraud, it does not follow that such fraud can be pleaded by the defendant as a part of his defence. The law is clear that no man can be heard to allege his own fraud, and this is exactly a case in which that maxim has been attempted to be evaded or disregarded by the defendant. It is hardly necessary to quote authority in dealing with a question like this, but it is enough to refer to the Bench decision reported in Kotayya v. Mahalakshmamma 1933 56 Mad 646 which deals with the law on the subject at some length. The third point decided in that case was that it is not open to a defendant to plead his own fraud as a defence to the plaintiff's claim. It therefore follows that the defendant in the present suit should not have been allowed to plead his own fraud or to adduce evidence in support of such a plea. As a result of allowing the plea the Court below has readily accepted the plea and came to the conclusion that there was really no consideration for the promissory note.

(2.) IT would appear as if the fraud alleged and the plea of no consideration are very closely united. Nevertheless it has been contended before me by the defendant-respondent's advocate that there is a separate plea of want of consideration raised in the defence apart from fraud, and that the fraud was put forward more as a reason for executing a document without consideration than as an independent plea by itself. Whether it is now possible for the defendant to establish the absence of consideration by alleging some other reason for his executing a promissory note without consideration is a matter on which I need not express any opinion in view of the course I propose to take. IT would be a matter for the Court below to decide whether the plea of want of consideration is made out by the defendant. The decree of the Court below is set aside and the lower Court is directed to re-hear the suit after excluding the plea of fraud from the defence and after taking fresh evidence in the suit, excluding of course any evidence relating to the defendant's own fraud that may be tendered on his behalf. The coats of this petition will follow the event and should be provided for in the revised decree of the Court below.