John Wallis, C.J.
1. In this case, where the defendant had conveyed his property benami to the plaintiff for the purpose of effecting a fraud on his creditors and the fraud had been effected, the Subordinate Judge has decided that he cannot set up the benami character of the transaction by way of defence in a suit by the plaintiff for possession under the conveyance. This was expressly ruled by Jenkins, C.J. and Beaman, J. in Sidlingappa v. Hirasa I.L.R. (1907) B. 405 following Doe de Roberts v. Roberts (1819) 2 B, & Ald. 367. I do not think the learned Judges who decided Prole v. Wiggins (1836) 3 Bing. N.C. 230 intended to question this decision. It appears to be in accordance with the principles laid down by Lord Bldon in the earlier case of Brackenbury v. Brackenbury (1820) 2 Jac & W. 391. Both cases were referred to by Lord Hatherly in Green v. Bateman (1872) L.R. 5 H.L. 597 but it was thought unnecessary to consider the principle they laid down or the manner in which it had been applied in other cases. As regards this Court I do not find anything opposed to them in Rangammal v. Venkatachari I.L.R. (1895) M. 378 or Yaramati Krishnayya v. Chundru Papayya I.L.R. (1897) M. 236. No doubt in these cases the suit was brought by the fraudulent transferors to set aside the conveyances and recover the properties, whereas here the defence is set up in a suit for possession by the fraudulent transferee but that was the state of things in the decisions already cited from which I am not prepared to differ. In the recent decision of the Privy Council in Pether Perumal Chetty v. Muniandy Servai I.L.R. (1908) Cal. 551 : 18 M.L.J. 277 where the point did not arise expressly their Lordships cited with approval Mayne's observation in paragraph 446 of his Hindu Law that 'if A requires the help of the Court to get the estate back into his own possession or to get the title into his own name, it maybe very material to consider whether A has actually cheated X or not,' and at page 559 they observed that to enable a fraudulent confederate to retain property transferred to him in order to effect a fraud, the contemplated fraud must according to the authorities be effected. Then and then alone does the fraudulent grantor or giver lose the right to claim the aid of law to recover the property he has parted with.' I can find nothing in these observations inconsistent with the authorities relied on for the plaintiff.
2. The appeal is dismissed with costs.
Coutts Trotter, J.
1. I entirely agree and only desire to add a few words, because the question has not expressly arisen in the courts of this Presidency. Both the parties to this litigation on the finding are guilty of fraud, and there are sound principles of law which would by themselves preclude the success of either. The difficulty is that one or the other must succeed and accordingly one has to see upon whom the incidence of the considerations barring success falls first. I may say at once that I am not impressed with the argument that to leave the property in the hands of the defendant would be to ratify that very fraud which has defeated the rights of the plaintiff's creditors by continuing to keep the property out of their reach. The answer to that is that the creditors or any one of them in a properly constituted action can as against either or both of these parties, establish their rights and set aside the transaction. The only other observation that I desire to make is, that I do not think that there is any conflict between Doe de Roberts v. Roberts (1819) 2 B. & Ald. 368 and Prole v. Wiggins (1836) 3 Bing. N.C. 230. The distinction between the two cases is indicated by Tindal, C.J., in the latter, and the principle I gather from it is this; if the plaintiff can set up a case consistent with the terms on the face of the document or with what I may call the face import of the transaction on which he bases his claim then the defendant cannot defeat that claim by alleging a fraud that implicates himself and showing that because of that fraud the document or the transaction is not what it appears to be. That is Doe de Roberts v. Roberts (1819) 2 B & Ald. 368. If on the other hand the plaintiff cannot make a case on the document or transaction on its face but has to go behind it and allege some other transaction which involves implicating himself in a fraud with the defendant then the defendant must succeed. That is the case of Prole v. Wiggins (1836) 3 Bing. N.C. 230. In other words that party fails who first has to allege the fraud in which he participated.