DWARKA RAM Vs. MTJALESWARI

JUDGEMENT

(1.) THE suit out of which this appeal has arisen was instituted by the appellant for recovery of possession of a piece of land with a house standing there, on the basis of a sale deed executed by the defendant in his favour. THE defence was that the sale deed propounded by the plaintiff was a benami transaction executed by the defendant, in order to save the disputed property from sale in execution of a decree obtained against her husband by one Profulla Ranjan Das Gupta. THE trial Court held the sale to be genuine and real and gave the plaintiff a decree. THE lower appellate Court, however, has dismissed the suit holding the sale to be farzi. THE plaintiff has preferred this second appeal.

(2.) THE judgment of the Court of appeal below is hardly satisfactory. At more than one place its reasons are faulty. For instance, the evidence of the plaintiff is that he paid the consideration money after the registration of the sale deed. THE learned Subordinate Judge's comment upon this evidence is that it is inconsistent with what is mentioned in the sale deed itself. It is a matter of common knowledge that in a sale deed payment of consideration money is always mentioned in the past tense though at the time the sale deed is being written the consideration money remains due. THE deed is written as if the sale has been completed, though in fact the deed completes the transaction and the consideration is paid at the time of registration of the deed or some time afterwards. Be that as it may, accepting the finding of fact to be correct, the plaintiff is entitled to succeed on a simple point of law. It is well settled law that if a document is brought into existence to commit a fraud, the party who intends committing the fraud, will not be allowed in the Court of justice to repudiate it if fraud was actually committed by means of that deed. THE plaintiff's case is that she executed the sale deed in order to save the property from the clutches of a decree holder. THE name of the decree-holder as given by her was found to be incorrect. It has not been shown that there was any decree of Profulla Ranjan Das Gupta against her husband. What the Court below has found is that there was a decree obtained by a lady against her husband which was executed and in the course of the execution the plaintiff on the basis of the sale deed preferred a claim to the property. That claim was allowed. So if the document was a fraudulent one the fraud was committed on the decree, holder and thereafter the defendant can not be allowed to challenge the deed and the title of the plaintiff. If any authority is needed for this well settled law, I may refer to the decisions of this Court in Surya Mull V/s. Dwarka Prasad, AIR 1929 Pat 127, and of the Bombay High Court in Sidilingappa v. Hirassa, (1907) 31 Bom 405. THE appeal is allowed; the decree of the lower appellate Court is set aside and that of the trial Court restored. THE appellant is entitled to his costs both in this Court and in the Court of appeal below.