1. The question in this appeal is whether the plaintiff-appellant is entitled to possession from the defendant No. 2-respondent.
2. In 1902 Ramrao and Shamrao were in difficulties and passed the sale-deed of June 22, 1902, in favour of defendant No. 1. That sale-deed is held by both the lower Courts to have been benami and possession retained by the vendors, On August 6, 1923, defendant No. 1 respondent passed a registered sale-deed in favour of the plaintiff-appellant, under which the present suit is brought. The only issues in the lower Court, apart from whether the plaintiff proves his sale-deed, were the benami nature of the transaction, whether possession had been with defendant No. 1 or with defendant No. 2, and in the latter case, whether the possession with defendant No. 2 was adverse to plaintiff and defendant No. 1.
3. The trial Court found that the plaintiff had proved his sale-deed, but answered all the other questions in favour of defendant No. 2 The plaintiff's appeal failed in the District Court on the same grounds. He now appeals to this Court.
4. In addition to the grounds considered in appeal, it is sought to invoke the aid of Section 41 of the Transfer of Property Act in his behalf. Although defendant No. 2 has expressly repudiated the plaintiff's good faith and challenged his sale-deed, the plaintiff failed to raise any such issue in the trial Court. It is necessary under Section 41 to prove not merely consideration but also good faith and due enquiry. In the absence of such pleadings or issues we are unable to allow these questions to be raised now in second appeal, although the trial Court appears to have held the plaintiff's consideration proved. On the other hand, both the Courts have found that the present suit in the form instituted by the plaintiff was to all intents and purposes a suit brought in collusion with, if not by, defendant No. 1, and the latter has not acted in good faith. These findings are, therefore, equally against the plaintiff-appellant.
5. On the issues raised in the lower Court, we agree that the benami nature of the sale-deed of 1902 in favour of defendant No. 1 is proved. Equally, possession and payment of rent is proved, not to defendant No. 1 but to defendant No. 2. On these findings the view of the lower Court that the present suit is barred by limitation is correct.
6. The question of law has, however, been argued as to whether defendant No. 2 should be allowed to plead, if he succeeds on the strength of the fraud on the part of his predecessors-in-title, Shamrao and Ramrao. It is argued for the appellant that he cannot as in Sidlingappa v. Hirasa ILR (1907) Bom. 405, 9 Bom. L.R. 542, where the defense was disallowed and the plaintiff's suit had been decreed.
7. On the observations above in regard to the failure of the plaintiff to set up Section 41 to prove his own good faith and due enquiry, and in the view of the lower courts against him on both the points, it suffices to say that ever on the law as laid down in Sidlingappa v. Hirasa he could hardly succeed. He was a relative. His lands adjoined the (sic) in suit. He took his sale-deed within a week of the death of one of the vendors.
8. It is contended for the respondent that in any case defendant No. 2 as a joint son will not be affected by the bad faith of Ramrao and Shamrao, and that no question of limitation arose in Sidlingappa v. Hirasa. The decision of Sir Lawrence Jenkins is entitled to the greatest respect. But, as pointed out by Mookerjee J. in Raghupathi v. Nrinshingha AIR  Cal. 99, the authority of the case in Doe v. Roberts (1819) 2 B. & A 367, on which it is based, must be deemed to have been considerably weakened by the subsequent ruling in Prole v. Wiggins (1836) 3 Scott 601. The circumstances in Sidlingappa v. Hira8a were peculiar. It was not merely a case of fraud between the parties but fraud had been practised on the Courts in execution. Under these circumstances, although the Court there accepted the maxim 'Let the estate lie where it falls' or in other words in pari delicto potior est conditio possidentis, it held that on the very application of that rule the plaintiff was entitled to a decree.
9. In the present case, for the reasons stated above, the plaintiff not having proved his own good faith or due enquiry is not entitled to the assistance of the Court. This is not a suit between defendant No. 1 and defendant No. 2, and the plaintiff in any case cannot stand in a better position than his vendor, defendant No. 1. The case of Sidlingappa v. Hirasa is criticised in Vilayat Husain v. Misran ILR (1923) All. 396.
10. Accepting as we do the principle of law quoted above, in pari delicto potior est conditio possidentis, it follows as laid down by Mookerjee J. in the case of Raghupathi v. Nrishingha AIR  Cal. 90 :--
[Where recovery of property is sought by the fraudulent grantee against the grantor, the rule is]--if a benamidar who has used a fraudulent transfer in his name, to defeat an execution levied by his ostensible transferor, were to seek the assistance of the Court to obtain possession from the latter, the Court might well allow the transferor to plead the real facts, even though the plea involved a declaration by the defendant of his own turpitude.
11. Moreover, in the present case it should be noticed that though a fraud was contemplated, it was not completed.
12. On these grounds we are of opinion that the decision in Sidlingappa v. Hirasa is of no avail to the appellant. The appeal fails and is dismissed with costs throughout in favour of defendant No. 2 respondent.
13. The learned advocate for the appellant has mainly relied on two points, firstly, that the decision of the lower Courts was erroneous, secondly, that defendant No. 2 should not have been allowed to plead the benami nature of the transaction between his father and defendant No. 1. The question of possession has been decided on the evidence and is really a question of fact. The learned advocate asks us to find that the lower Courts were in error in admitting certain evidence on behalf of defendant No. 2. The plaintiff called two witnesses on this question and he produced a number of rent-notes in the name of his vendor, defendant No. 1, as well as other documentary evidence, and in reply, defendant No. 2 called the tenants, who had been in possession of the land under the rent-notes, and they deposed that actually they were the tenants of defendant No. 2 and not of defendant No. 1. This evidence is objected to by the learned advocate and he relies on Section 92 of the Indian Evidence Act. But that section cannot be used to exclude evidence of this nature, for it is not evidence, in the words of the section, 'of any oral agreement or statement, as between the parties to any such instrument, or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms.' It follows that if the evidence was admissible the concurrent findings of both the lower Courts are binding upon us, and we must accept the decision that defendant No. 2's father had ever been in possession after the sale in 1902, which has been held to be benami.
14. On the second point, the learned advocate has relied on the decision of Sir Lawrence Jenkins in Sidlingappa v. Hirasa ILR (1907) 31 Bom. 405, 9 Bom. L.R. 542, where the owner of the property executed a benami sale-deed of land and afterwards attempted to recover possession of the land pleading the benami nature of the transaction which amounted to fraud. The decision was that the plaintiff should not be allowed to succeed on the ground of a fraud to which he had been a party, But that case does not go so far as to say that a plaintiff is not allowed to plead the fraud of a defendant; and there can be no objection to defendant No. 2 in this case who is not seeking any relief being allowed to plead the fraud committed by his father and defendant No. 1, who were equally fraudulent. A similar case to this is Vilayat Husain v. Misran ILR (1923) All. 396, which states the law with reference to cases of this nature clearly. The head-note runs:--
In all cases where a plaintiff is relying upon a deed, the defendant is entitled as of course to give evidence of the circumstances under which the document came into existence. When those circumstances include an allegation of a joint fraud by both plaintiff and defendant, the particulars of that fraud must be pleaded; and it is then the duty of the court to look into the matter, and if the court comes to the conclusion that the parties were acting together with a view to perpetrate a fraud, and did in fact perpetrate that fraud, and that there is no difference in the degree of guilt of the plaintiff (who is asking the court to give him some help) and that of the defendant, the duty of the court is not to assist either party.
15. Now, applying that rule to the present case the Courts will give no assistance to the plaintiff whoso title depends on the deed to which his vendor was a party and which amounted to a fraud on the creditors of the father of defendant No. 2.
16. For these reasons, I agree with the order that the appeal must be dismissed with costs.