K RAGHAVALU CHETTY Vs. ADINARAYANA CHETTY

JUDGEMENT

(1.) The District Judge has misunderstood the cases quoted by him. In the case of Yaramati Krishnayya V/s. Chundru Papayya 20 M. 326 it is pointed out that "a defendant is allowed to show the turpitude of both himself and the plaintiff in order to protect himself against an action by the plaintiff to give effect to a contract or deed entered into for an illegal or immoral purpose, Here an exception is allowed not for the sake of the Wrong-doer, but on grounds of public policy, since the Court ought not to assist a plaintiff to recover property or enforce a contract in respect of which he has no true title or right. The rule of public policy cannot be applied without allowing the defendant to benefit by it. But the benefit is allowed him by accident as it were and not in order to secure him any right to which he is entitled. Holman v. Johnson Cowper 343 per Lord Manfield and Luckmidos Khimji V/s. Mulji Canji 5 B. 295. In the present case too, the 6 defendant does not set up his own fraud but alleges that his father when he (6 defendant) was a child transferred the plaint property to the plaintiff without consideration and in order to use the transfer as a cloak against the creditors. The Courts have found that this plea is proved and, in our opinion, on that finding the plaintiff's suit should have been dismissed. The plaintiff's pleader argues that the 6 defendant should not be allowed to defeat the operation of the deed as it was twice used in Court, apparently with success, as a cloak against creditors : but the 6 defendant was then a minor and there is nothing to show that he knew that the deed was without consideration and fraudulent. Indeed his original plea in this suit admitting the deed rather indicates that he had then no knowledge of its real character.

(2.) The plaintiff in this connection argues that the 6 defendant, having in his written statement admitted the plaintiff's claim ought not to have been allowed to resile from the plea and allege that the deed was without consideration and fraudulent. The District Judge allowed, the 6 defendant to alter his original plea because he was satisfied that the original plea was made in ignorance and without; proper legal advice by the 6 defendant who had only recently ceased to be a minor. In these circumstances we think that the District Judge was right in allowing the 6 defendant to set up the true case, although it differed from his original plea. We observe that the District Judge gave the plaintiff the opportunity to adduce further evidence to rebut the defendant's new plea, but the plaintiff failed to show that it was not true.

(3.) We, therefore, reverse the decree of the District Judge and restore the decree of the District Munsif with costs in this and in the lower appellate Court, except the costs awarded to the plaintiff by the District Judge's order of the 10 April 1905.