1. The question in this appeal is whether the plaintiff appellant is entitled to possession from defendant respondent 2.
2. In 1902 Ramrao and Shamrao were in difficulties and passed the sale deed of 22nd June 1902, in favour of defendant 1. That Sale deed is held by both the lower Courts to have been benami and possession retained by the vendors. On 6th August 1923, defendant respondent 1 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 1, or with defendant 2 and in the latter case, whether the possession with defendant 2 was adverse to plaintiff and defendant 1.
3. The trial Court found that the plaintiff had proved his sale deed, but answered all the other questions in favour of defendant 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, T.P. Act, in his behalf. Although defendant 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 been the plaintiff's consideration proved. On the other hand, both the Courts have round 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 1, and the latter has not acted in good faith. These findings are there fore 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 1, is proved. Equally, possession and payment of rent is proved, not to defendant 1 but to defendant 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 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  31 Bom. 405, where the defence 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 e en on the law as laid down in Sidlingnppa v. Hirasa  31 Bom. 405 he could nardly succeed. He was a relative. His lands adjoined the lands 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 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  31 Bom. 405. The decision of Sir Lawrence Jenkins is entitled to the greatest respect. But, as pointed out by Mookerjee, J. in Raghupathi v. Nrishingna A.I.R. 1923 Cal. 90, the authority of the case in Doe v. Roberts  31 Bom. 405, on which it is based, must be deemed to have been considerably weakened by the subsequent ruling in Prole v. Wiggins  3 Scott 601. The circumstances in Sidlingappa v. Hirasa  31 Bom. 405 were peculiar. It was not merely a case of fraud between the parties, but fraud had been practiced on the Courts in execution. Under thee 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 fait h or due enquiry, is not entitled to the assistance of the Court. This is not a suit between defendants 1 and 2, and the plaintiff in any case cannot stand in a better position then his vendor, defendant 1. The case of Sidlingappa v. Hirasa  31 Bom. 405 is criticized in Vilayat Husain v. Misran A.I.R. 1923 All. 504.
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 A.I.R. 1923 Cal. 90:
[Where recovery of property is sought by then 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  31 Bom. 405 is of no avail to the appellant. The appeal fails and is dismissed with costs throughout in favour of defendant respondent 2.
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 2 should not have b en allowed to plead the benami nature of the transact on between his father and defendant 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 2. The plaintiff called two witnesses on this, question and he produced a number of rent notes in the name of his vendor, defendant 1, as well as other documentary evidence, and, in reply, defendant 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 2 and not of defendant 1. This evidence is objected, to by the learned advocate and he relies on Section 92, Evidence Act But the 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
14. 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 2's father had ever been in possession after the sale in 1902, which has been held to be benami.
15. On the second point, the learned advocate has relied on the decision of Sir Lawrence Jenkins in Sidlingappa v. Hirasa  31 Bom. 405, 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 2 in this case who is not seeking any relief being allowed to plead the fraud committed by his father and defendant 1, who were equally fraudulent. A similar case to this is Vilayat Husain v. Misran A.I.R. 1923 All. 504, 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 mast 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 wore 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.
16. Now, applying that rule to the present ease the Courts will give no assistance to the plaintiff whose 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 2. For these reasons, I agree with the order that the appeal must be dismissed with costs.