ORDER
Madan Mohan Prasad, J.
1. This second appeal is by the plaintiff in a suit for declaration of his title in respect of certain lands alleged to have been sold to him by the defendants.
2. The plaintiff’s case was that the lands originally belonged to one Ramswarup Singh alias Nar Sing. Narain Singh and his brother Tirpit Narain Singh. In the year 1921 there was a partition between the brothers and the lands fell to the share of Ramswarup Singh. In the years 1937 and 1946 the defendants 1st party sold the different plots of lands in suit to the plaintiff. Next there was a collusive partition suit between defendants first and second parties and they
purposely included the lands in suit as their joint family property. The plaintiff was not a party to that suit. In view of the decree Passed in that partition suit, lands mentioned in Schedule 1 of the plaint were allotted to the defendants first party and the lands mentioned in the second Schedule of the plaint to the defendants second party. In view of the cloud cast on the title of the plaintiff, he instituted the present suit for a declaration thereof. According to his case, the plaintiff was in possession and therefore, there was no relief in that respect prayed for.
3. The defence of the first party defendants was that the sale deeds in favour of the plaintiff were farzi transactions with a view to save the property from the creditors. They, however, alleged that possession of the property remained with them and the plaintiff was merely a name lender.
4. Both the Courts below have found in favour of the defendants on both points.
5. Learned counsel for the appellant in view of the concurrent findings of facts has raised only one point, namely, that in the present case there is evidence to show, which has not been considered, that the defendants had succeeded in the fraud which they intended by making farzi transfers of the property and therefore, it is not open to them to repudiate the transactions in question.
6. Learned counsel has drawn my attention to the discussions of the question by both the courts below. It appears that the point was raised before both the courts below and the trial court found that “the defendants’ family had no occasion to use these documents as shield to save their property”. Further it held that when the decree-holders put the lands of the defendants to sale in execution of their decrees, the judgment-debtor purchased the lands in the names of different persons and there was no occasion for the plaintiff to file any objection or any claim case in the execution levied by any decree-holder. The lower appellate court also has come to the finding “that there is no evidence on record to show that these sale deeds were ever, used as a shield to save their properties. Rather, it has come in evidence that whenever decree-holder proceeded against the properties in suit Narsingh Narain Singh purchased them in farzi names of others”. Upon the findings, therefore, it is clear that there is no evidence in this case that the fraud which was intended by the defendants had succeeded.
7. Learned counsel has, however, urged that the evidence of defendant No. 1 himself showing the fraud to have succeeded has not been considered. It is a well established practice of this Court that if in course of a second appeal such a point of non-consideration of evidence is to be raised, there must be specific ground in this behalf and the other party must be given notice of the fact that such and such evidence would be used at the hearing on the ground that it has hot been considered by the courts below. No such steps were taken in the present appeal. On this ground alone the appellant cannot be allowed to raise this point.
8. Apart from that I find that even if that evidence be considered, it does not carry the case of the appellant any far. Reliance has been placed by learned counsel on the statement of defendant No. 1 (as D. W. 11) that the sale deed of the year 1937 was executed to defeat the claim of a creditor Sureshwar Prasad Singh. It appears, however, that the witness stated in this respect that the defendants could not succeed in saving the property by executing the sale deed in favour of the plaintiff and the property was auction sold and purchased by the defendants in the farzi name of one Bhagwat Prasad. The second statement of the aforesaid witness to which attention has been drawn is in respect of the kebala executed in the year 1946. It is said that this kebala was executed to defeat the claim of creditors and one such creditor was Raeho Babu. The witness, however, stated that in spite of the execution of the sale deed aforesaid in favour of the plaintiff Ragho Babu had succeeded in realising from the defendants his dues. There is, however, lust one stray statement made by this witness to the effect that due to the aforesaid deeds some of the creditors had lost their money. No specific creditors have been mentioned in this respect. Reading the evidence, as a whole, in my view, the courts below were quite correct in holding that there was no specific evidence to show that the sale deeds in question had ever been utilised by the defendants as a shield to protect their property from the clutches of the creditors.
9. Assuming that the defendants had succeeded in the fraud which they had contemplated, it is of no avail to the plaintiff appellant. As stated earlier, learned counsel has urged that the defendants cannot take advantage of their own fraud which had succeeded. Reliance has been placed on the decision of Mohamed Noor, J in the case of Dwarka Ram v. Mt. Jaleswari, reported in AIR 1937 Pat 453, in that case the suit had been filed by a person alleging a purchase from the defendant and the defence was that the sale was benami and had been made in order to save the property from sale in execution of a decree obtained against the defendant’s husband by a particular person. The trial court had decreed the suit finding the sale to be genuine. The lower appellate court had dismissed the suit holding it to be a fazir. It had found that there was a decree obtained by somebody other than the person alleged against the husband of the defendant in course of the execution of which the plaintiff had on the basis of the sale deed preferred a claim to the property and it had been allowed. The learned Judge, therefore, proceeded on the basis of this fact to hold that the fraud had succeeded and so the defendant could not be allowed to challenge the deed and the title of the plaintiff. The facts of the instant case are very much different and the decision is thus of no avail to the appellant. Besides I am unable to accept the law laid down in this case as correct in view of the subsequent decision of the Supreme Court in the case of Immani Appa Rao v. Gollapalli Ramalingamurthi reported in AIR 1962 SC 370, Reliance has been next placed on an observation of Ayyangar, J., in paragraph 28 of the judgment in the case of Sm. Surasaibalini Debi v. Phanindra Mohan reported in AIR 1965 SC 1364 to the following effect:–
“(28) No doubt, for the purpose of deciding whether Property could be recovered by the assertion of a real title there is a clear distinction between cases where only an attempt to evade a statute or to commit a fraud has taken place and cases where the evasion or the fraud has succeeded and the impermissible object has been achieved. The leading decision upon this point is that of the Privv Council in Petherpermal Chetty v. Muniandi Servai, (1908) 35 Ind APP 98 (PC) where Lord Atkinson dealing with the effect of benami conveyances which are motivated by the design to achieve an illegal or fraudulent purpose, quoted from Mayne’s Hindu Law. (7th Edn. p. 595, Para 446) the following as correctly setting out the law:
“Where a transaction is once made out to be a mere benami it is evident that the benamidar absolutely disappears from the title. His name is simply an alias for that of the person beneficially interested. The fact that ‘A’ has assumed the name of ‘B’ in order to cheat ‘X’ can be no reason whatever whv a Court should assist or Permit B to cheat A. But if A requires the help of the Court to set the estate back into his own possession or to get the title into his own name, it may be very material to consider whether A has actually cheated X or not If he has done so by means of his alias, then it has ceased to be a mere mask, and has become a reality, It may be vary proper for a Court to say that it will not allow him to resume the individuality which he has once cast off in order” to defraud others. If, however, he has not defrauded any one, there can be no reason why the Court should punish his intention, by giving his estate away to B, whose roguery is even more complicated than his own
…… For instance, persons have been allowed to recover property which they had assigned away…… where they had intended to defraud creditors, who, in fact, were never injured……… But where the fraudulent or illegal purpose has actually been effected by means of the colourable Brant, then the maxim applies; ‘In pari delicto potior est conditio possidentis’. The Court help neither party. Let the estate lie where it falls.”
In my view, the law as laid down therein does not help the appellant. It is obvious that even where the fraudulent or illegal purpose has actually been achieved, the Court will help neither party. In other words, the estate lies where it falls.
10. The decision of the Supreme Court in the case of Immani Appa Rao and others (Supra) is very much relevant to the Present case. In that case also the plaintiff was the transferee and the defendant had raised the plea of benami. The question was whether the defendant ought to be shut out from pleading the fraud which had succeeded. Their Lordships considered the question and held that if out of the two confederates in fraud one wants a decree to be passed in his favour that means that he wants the active assistance of the Court in reaching the properties possession of which has been withheld from him and if the defence raised is shut out, the Court could be actively assisting him to give effect to the fraud to which he was a party and in that sense the Court would be allowed to be used as an instrument of fraud, and that is clearly and patently inconsistent with public interest. Their Lordships further held that the plea of fraud should be allowed to be raised and if it is found that both the parties are equally guilty and that the fraud intended by them has been carried out the position would be that the party raising the defence is not asking the Court’s assistance in any active manner; all that the defence suggests is that a confederate in fraud should not be permitted to obtain a decree from the Court because the document of title on which the claim is based really conveys no title at all. The learned Judges said that it is true that as a result of permitting the defendant to prove his plea he would be incidentally assisted in retaining his possession; but this assistance is of a purely passive character and all that the Court is doing in effect is that on the facts proved it proposes to allow possession to rest where it lies. The learned Judges further said that there can be no question of estoppel in such a case for the obvious reason that the fraud in question was agreed by both the parties and both parties have assisted each other in carrying out the fraud. They explained that when it is said that a person cannot plead his own fraud it really means that a person cannot be permitted to go to a Court of law to seek for its assistance and base his claim for the Court’s assistance on the ground, of his fraud. Their Lordships held that the paramount consideration of public interest requires that the plea of fraud should be allowed to be raised and tried, and if it is found to have succeeded the estate should be allowed to remain where it rests.
11. In the present case, the defendants who have pleaded a fraud have not come to this Court asking for its assistance. They have been found to be in possession and their case is that title remained with them in suite of the deeds of sale. It is the plaintiff who has come to this Court and he also was a Party to the fraud and if the fraud be taken to have succeeded, as much guilty for the fraud as the defendants. He has, come to seek the assistance from the Court for a declaration of his title. In my view, in the circumstances of the case, the defendants cannot be shut out from pleading the fraud. The effect of the principle of allowing the property to rest where it is undoubtedly in favour of the defendants and even though the Court may not assist the defendants, the property would remain there unless the plaintiff is assisted by the Court and granted a decree of his title. There is thus no substance in the contention raised by learned Counsel in this respect.
12. Learned counsel for the respondents has, however, pointed out that there is no merit in the present appeal on the ground that in view of the findings of both the courts below that the plaintiff never came into possession of the property, the courts below have held that the present suit which is one for bare declaration is barred by Section 42 of the Specific Relief Act. There is force in this contention. That finding of the Courts below has not been challenged in the present appeal.
13. In any view of the matter, therefore, the present case is one concluded by concurrent findings of facts and no point of law has been raised which would justify any interference with them. There is no merit in this appeal. It is accordingly dismissed with costs.