1. We think that in this case there can be no doubt, speaking for myself I am sorry that it is so, because it is with some reluctance that we come to the conclusion that the defendants 1, 2 and 3 must be turned out of property in which doubtless they honestly believed they have, and in fact perhaps have been exercising, rights. The law appears to us to be clear against them.
2. The material facts are that the porosities one Mahomed saheb, who originally owned this property, gave it to his wife Sabinibi as dower, somewhere about the year 1829. Of that gift there is no direct evidence, but there were judicial proceedings in 1862, in which the gift was brought in question and appears to have been recognized. Again speaking for myself I entertain considerable doubt whether a judgment in such a proceeding could be evidence.
3. The learned Judge below, without going very far into this question, was clearly satisfied that in fact Mahoraedsaheb did make a gift of this property to his wife Sabinibi, though he entertained his own opinion of the conditions under which the gift was made and its true character.
4. In 1863, Sabinibi sold this property to Sardarkhan the brother of her daughter-in-law. The sale-deed is exhibited in this case and there can be no question about its genuineness. What happened between 1863 and 1873, in which year or thereabouts Sardarkhan died, we have no means of knowing. But in 1875 Mahomedkhan, the brother of Sardarkhan, made a gift, by a deed, of the property now in suit to Shabusaheb.
5. The present plaintiff bases her claim thus. A creditor sued the son of Shabusaheb, after Shabusaheb's death, and obtained a decree against him. In satisfaction of that decree the plaint property was put up and sold at a Court auction in which one Ramchandra became the purchaser. It appears that Ramchandra attempted to enforce his rights against some of the present defendants but was resisted, and he then transferred what he bought at the auction to the present plaintiff.
6. It, therefore, becomes perfectly clear that if the transactions, we have just narrated, commencing with the gift in 1829 to Sabinibi and ending with the gift by Mahomedkhan to Shabusaheb in 1875, are held to be binding transactions then what the plaintiff obtained from Ramchandra is the right' title and interest of Shabusaheb in the house in dispute; and those transactions show that right is complete and exclusive. It is true that there is a gap in the chain of title between Sardarkhan and Mahomedkhan, but it is equally clear that so far as the present defense is concerned the property passed entirely out of the hands of all members of the family who had originally owned it, by the sale to Sardarkhan in 1863; and since no prescriptive right or right by adverse possession has been alleged, the questions to be answered are to be answered by reference to the transactions set forth.
7. In our opinion what is really in controversy may be very briefly stated thus. Either these transactions from first to last be fraudulent and collusive and therefore invalid or not binding in law, as alleged by the defendants; or they were what they purport to be on the lace of them genuine, legal and valid transactions. If the hitter then the defendants have no case at all. If the former then it is equally clear that the defendants are precluded, as parties by descent to the alleged frauds, from setting up their own iniquity to avoid the legal consequences of those transactions. Both the rule and the principle of law are so well understood that speaking for myself I think that it would admit of no argument. But out of deference to the eminent counsel who has argued the case for the plaintiff and who has contended that here there is no question of a fraudulent party seeking to set aside his own fraud, we would point out that (sic) before the defense raised by the defendants could be successful. It is indeed exactly the case of Doe. dem. Roberts v. Roberts (1819) 2 B.&A.; 367 in every detail and particular.
8. Entertaining this view we allow this appeal, reverse the findings and decision of the Court below and declare that the plaintiff is entitled to exclusive possession of the plaint property and should now be put in possession of it. The defendants must bear all costs of the suit and the appeal.