1. This appeal arises out of a suit filed by the appellant for possession of 2.89 acres of land in Khata 158 in Mouza Eaikera. His case is that the suit lands which originally stood recorded in the name of a deity, Guru Grantha Sabeb, were put up for sale in execution of a rent decree and were purchased by defendant 6, Padma Matha, on 26th April 1937 for Rs. 72; that the appellant (plaintiff) purchased the same from defendant 6 by a registered sale-deed, dated 18th August 1941, for a sum of Rs. 200 and that he was disturbed in the possession by defendants 1 to 5. Defendant 1 is the main con-testing defendant and defendants 2 to 5 are his tenants.
2. The case of defendant 1 is that an ancestor of his Mahant Saheb Ram Das, gifted 57 of acre in plots 275 of the suit lands to one Madhusudan Tripathy. Bat neither the said Madhusudan nor his son Chintamoni paid the rent due to the zamindar. Defendant is Guru Mahant Madhab Das deliberately defaulted in payment of the rent and induced the landlord to file a shit for arrears of rent. A rent suit was accordingly filed and in execution of the rent decree the entire holding measuring 2.89 acres was put up for sale and Mahant Madhab Das who succeeded Saheb Bam Das purchased the same in the name of defendant 6, Padma Matha, who was residing in the Math and who, it is said, was in the active confidence of Madhab Das. The point for decision is whether the purchase by Padma Matha was for the benefit of the Mahant and whether she was really a benamidar for the judgment-debtors against whom the rent decree was obtained. The Courts below were largely influenced by the fact that there was some evidence that defendant 6, Padma Matha, was residing in the Math prior to the date of the sale, for about 15 to 20 years, and that she was enjoying the confidence of the late Mahant Madhab Daa. In fact defendant 1, the present Mahant, giving evidence as D. W, 6 deposed that she was the late Mahant's mistress. This fact appears to have coloured the view of both Courts below and in appreciating the evidence on this point they have come to the conclusion that in all probability the sale in the name of Padma Matha was benami for the benefit of the late Mahant Madhab Das.
3. In second appeal, Mr. M. S. Rao appear, ing for the plaintiff-appellant has attached the funding of the Oourts below as contrary to the evidence and the bulk of his argument centres round the suggestion that the evidence falls far short of making out a case of benami sale; that this is at least consistent with the late Mahant's desire to benefit defendant 6 by providing for her future maintenance; and that the defendant should not be heard to allege his own fraud in bringing about the rent suit and the subsequent sale and should not be permitted to take advantage of his fraud.
4. It is not necessary to go into all the facts or discuss all the questions argued at the bar. The finding as to whether the sale was really benami or a genuine purchase by defendant 6 will be sufficient to dispose of this appeal. On behalf of the appellants it is pointed out that so far as the motive suggested by defendant 1 is concerned it is equivocal. The defendant alleges that Padma Matha was the mistress of his Guru, the late Madhab Das, and that as it was contrary to law that he himself should bid at the sale, defendant 6 was put up as the ostensible purchaser. According to the plaintiff the object of the Mahant Madhab Das was admittedly to deprive Ohintamoni of his raiyati interest in the holding by bringing the properties to auction sale. To achieve this object it was not possible for the Mahant to bid at the auction himself, as that would be contrary to the provisions of Section 227, Orissa Tenancy Act. Mr. Rao's contention is that even admitting this premise to be correct, defendant 1 shall not be permitted to take advantage of the sale as Ohintamoni had actually been defrauded of his property; and secondly the Mahaut being the judgment-debtor in the suit was prohibited from bidding at the sale and he should not, therefore, be permitted to commit a fraud upon the states (statute?) by pleading that he was the real auction purchaser and not defendant 6. It may also well be that the defendant's Guru, Madhab Das, was anxious to make some provision for the future maintenance of his alleged mistress and discovered this easy way of parting with some of the Math properties by bringing about the rent sale. This view gains support from the Mahant's previous act, namely, the execution of a will on 3rd September 1934, whereby he provided for certain properties of the Math to be in the exclusive enjoyment of defendant 6 for her lifetime. The motive suggested for the alleged benami transaction has not, therefore, been successfully made out and is at least equivocal.
5. [After discussing further evidence his Lordships concluded as follows:] We still allowed Mr. Mohapatra to argue the case on merits and satisfy us that defendant 1 had discharged the onus of proving that defendant 6 was only a name-lender and that the sale was really for the benefit of the Math. We are satisfied after hearing him that defendant 1 has failed to discharge that onus and hold that the apparent owner must be taken to be the real owner. No single circumstance brought out in evidence is unequivocal or is definitely in favour of the defendant's case, while on the other hand, every circumstance and every consideration is equally in favour of the plaintiff's case that the purchase by defendant 6 was a genuine transaction and that she was the real owner of the properties. A finding on this point alone would be sufficient to dispose of this appeal bat as the other points have been argued at length I shall very briefly notice them.
6. The appellant's contention is that defendant is Guru, Madhab Das, was a party to a fraud, viz., to oust Chintamoni from the holding by bringing about the rent sale. Defendant 1 specifically pleads that his Guru colluded with his landlord and induced him to file the rent suit and put the holding to sale. This action on the part of the defendant amounted not only to a fraud on the statute but also on Chintamoni. The fraud was completed when the sale was held and the holding passed to the auction-purchaser and when Chintamoni launched his suit challenging the sale. It is well established that no party shall be heard to urge his own fraud in order to succeed before a Court, Allegans mam turpotudinum non est audien dus. Reliance is placed on Shiva Narain Bam v. Mt. Phuljharia, 52 I. C, 402 : (A, I. B. (6) 1919 Pat. 539) and Luckee Narain v. Taramoni Dossee, 3 W. R. 92, for the position that after fraud has been perpetrated no party to the fraud can take advantage of his own act and that the real owner shall not be permitted to challenge the title of the ostensible owner if a benami conveyance was executed in order to perpetrate a fraud. This is a well recognized principle and has been applied in several Indian decisions.
7. Reference may also be made to Varada-rajulu Naidu v. Srinivasulu Naidu, 20 Mad. 333; Sidlingappa v. Hirasa, 31 Bom. 405 : (9 Bom. L. R. 642); Parthasarathy v. Kanda-swami, 45 M. L. J. 161: (A. I. R. (10) 1923 Mad. 711) and Ramaswami v. Alamelu Ammal, 46M. L. J. 298 : (A. I. R. (11) 1924 Mad. 604).
8. I am, therefore, satisfied that the contentions of Mr. Rao must be upheld. These are the only points raised in the appeal and, in my judgment, both the Courts erred in drawing in references from the proved facts. The judgments under appeal must accordingly be reversed and this appeal allowed with costs throught.
9. I agree.