1. The plaintiff-appellant is a mortgagee from Sheikh Mohammad defendant 3 and sued the defendants, three in all for a declaration that his mortgagor is the owner of the property in dispute. In the alternative she prayed for a, decree for possession. It is alleged in the plaint that the property in suit belonged to one Saiduddin, who executed a deed of sale in respect thereof in favour of Mathura Prasad and others. Defendant 3 instituted a suit for preemption on foot of that sale-deed but realised that owing to a certain partition he had no proprietary interest in the tenure in which the vended property was situate. Accordingly he made Mt. Fatima, defendant 1, who had an interest in that tenure to institute a suit for pre-emption. A decree was passed in favour of Mt. Fatima, who obtained delivery of possession followed by mutation of names in the revenue register. The plaintiff's case is that the price deposited in the name of Mt. Fatima, had been paid by defendant 3 and that he bore all the expenses of the litigation against the vendee. The plaintiff also alleges that she is in fact in possession, and that Mt. Fatima had throughout acted for her mortgagor defendant 3. The suit was contested by Mt. Fatima, who pleaded that she had pre-empted the property for her own benefit and that she paid the purchase money. The suit was dismissed by both the Courts below on the preliminary point that assuming all the allegations to be found in the plaint were true, the plaintiff could not succeed. The lower appellate Court has expressed the opinion in a well-considered judgment, that on his own showing, defendant 3 perpetrated a fraud on the vendee, the law of pre-emption and the Court and the purpose of the fraud having been fulfilled, it is not permissible for her or her representatives-in-interest to say that the pre-emptor obtained the decree for her benefit. The lower appellate Court has also considered the alternative case which appears to have been set up in argument before it, viz. that the defendant 3 be directed to transfer the property to the plaintiff on proof of the fact that the latter supplied the purchase money and there was an understanding between defendant 3 and the predator that the property would after the decree in the pre-emption suit be transferred to the former. There is no suggestion in the plaint of any agreement between the pre-emptor and defendant 3 that the former would transfer the property in lieu of the expenses defrayed by the latter. The only point which requires consideration is whether the view taken by the owner appellate Court of the rights of the plaintiff on her own allegation is correct. In my opinion the case falls within the rule which was accepted by their Lordships of the Privy Council in Perherpermal Chetty v. Muniani Servai (1908) 35 Cal 551, at p. 558. Their Lordships quoted with approval the following passage from Mayne's Hindu Law 7th Edn. p. 595 para. 446:
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 why a Court should assist or permit B to cheat A. But if A requires the help of the Court to get the estate back into his own possession, or M got the title into his own name it may be very material to consider whither 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 very proper for a Court to say to at 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 anyone, there can be no reason why the Court should punish his intention by giving his estate away to B, whoso roguery is even more complicated than his own. This appears to be the principle of the English decision. 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 fradulent or illegal purpose has acutally been effected by means of the colourable grant, then the maxim applies: In pari delicto potior est conditio possidentis. The Court will help nether party. Let the estate lie where it falls.
2. It seems to roe that the circumstances of this case clearly attract, the application of the rule embodied in the passage quoted above. Defendant 3 had no preferential right of purchase as against Mathura Prasad and others, who as vendees would have successfully resisted his suit for pre-emption. If the plaintiff's allegations are true, defendant 3 set up his alias as is now alleged to claim the property by right of pre-emption which she undoubtedly possessed and which could not be successfully resisted by Mathura Prashad. The latter in full belief that defendant I was pre-empting for herself either did not put forward any defence or lost the case against her. The Court, likewise, treated defendant 1 as the real preempt or, passed a decree in her favour and put her into possession. If it be assumed that the real pre-emptor was defendant 3 and defendat 1 acted only as his benamidar in that suit, Mathura Prasad had been clearly defrauded. If the real nature of the arrangement, now asserted had been disclosed in the preemption suit, Mathura Prasad would have defeated the claim of defendant 1. It is, to my mind, doubtful if the Courts will recognize a, banami preemption. But (assuming that, such a thing is permissible having regard to the provisions of the law of pre-emption. I think it is not open to defendant 3 to assert that he ousted Mathura Prasad and others vendees, by the device of making defendant 1 to exercise her right of pre-emption, though in fact he himself was the pre-emptor. For these reasons I think the lower Courts have taken a correct view of the case. The appeal is dismissed under Order 41, Rule 11, Civil P.C.