JUDGMENT
Lawrence Jenkins, C.J.
1. The question that arises on this appeal is, whether a defendant can plead his own fraud as an effective answer to a claim to immoveable property conveyed by him to a benamidar.
2. Hirasa, the second defendant, on May the 24th, 1890, executed in favour of one Hanmantsa a sale-deed of the property in suit. On the 3rd of March 1892 Hanmantsa executed in favour of the plaintiff’s father a sale-deed of the same property.
3. In 1899 the property was attached in execution of a money decree passed against Hirasa, but on an application presented by the plaintiff’s father the attachment was raised in deference to the title apparently created by the sale-deeds.
4. The plaintiff has now brought this suit to recover the property on the strength of his title under the sale-deeds and he is met by the defendant’s plea that those documents were part of a benami transaction whereby it was intended to shield Hirasa’s property from his creditor.
5. This intention is established, the fraud was carried through and the final stage in the scheme was the order releasing the property passed under Section 280 of the Civil Procedure Code on the claimant’s application.
6. Notice of that application was served on Hirasa, but he in no way opposed the claimant’s contention that he had acquired a good title under the sale-deeds.
7. Thus Hirasa enabled his decree-holder to be cheated out of his just rights.
8. He now seeks to plead his fraud as a defence to the plaintiffs claim to recover possession of this property.
9. It is well settled that when a fraud of this class has been carried into effect, a party to it cannot, as plaintiff, plead the fraud to vitiate the transaction.
10. It is argued, however, that this proceeds on a principle that does not bar a defendant from pleading his fraud and it is contended that in such cases the rule is that the Court will not help a plaintiff where the litigants are parties to a common fraud.
11. For the plaintiff it is urged that the rule is that a deed cannot be avoided on the ground of fraud by a party to the fraud; Allegans turpitudvnem suam shall not be heard.
12. In support of each contention authority may be cited, but in our opinion it is sounder policy to accept the rule, which will be most apt to deter persons from frauds of this kind; for, experience shows that they are by no means uncommon.
13. And for this reason, we prefer the rule for which the plaintiff contends.
14. It has, moreover, the sanction of decisions that must command respect. Thus in Doe dem v. Roberts (1819) 2 B. & Ald. 367, the defendant’s plea in an action for ejectment failed on the ground that a party could not avoid his own deed by showing fraud to which he was himself a party.
15. It was said by Bayley J. by the production of the deed the plaintiff established a prima facie title; and we cannot allow the defendant to be heard in a Court of justice to say that his own deed is to be avoided by his own fraud.” And Holroyd J. laid down that “a deed may be avoided on the ground of fraud, but then the objection must come from a person neither party nor privy to it, for, no man can allege his own fraud in order to invalidate his own deed.”
16. This case was followed in Obhoy Churn v. Treelochun (1859) Beng. S.D. 1639 and Brackenbury v. Braclceribury (1820) 2 J. & W.394 favours the same view.
17. Here we are dealing not with that which is executory, but with what is executed; for, the defendant is not resisting the enforcement of a contract, but is invoking the aid of the Court to enable him to escape on the strength of his own fraud from the consequences of sale-deeds which ostensibly create a valid title in the defendant.
18. In these circumstances, it is, we think, by not displacing the plaintiffs’ apparent title that we give true effect to the maxim “Let the estate lie where it falls.”
19. Though we have dealt with the case as if both parties to this litigation had been equally culpable, it is to be noticed that it was the plaintiff’s father and not the plaintiff, who joined the defendant in the fraud and it is a question whether it can be said that the plaintiff and the defendant are in pari delicto (Mathew v. Hanbury (1690) 2 Vernon 188, Muckleston v. Brown (1801) 6 Vesey 68).
20. But however that may be, we hold, for the reasons we have already stated, that the plaintiff is entitled to succeed and so the decree of the District Court should be reversed and that of the Subordinate Court restored, with costs throughout.
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