1. The plaintiff first sued as heir of his natural mother Namammal the nominal mortgagee under Exhibit A, the document sued on. The Subordinate Judge in appeal found that he was not entitled to sue as her heir and gave leave to amend the plaint. The plaintiff in his amended plant alleged that the document was taken in the name of his mother for his benefit by one Srirangammal, widow of Appanna Iyengar as there were then disputes going on as to whether the plaintiff had been lawfully adopted by Appanna Iyengar and it was desired to benefit him in any event. Both the District Munsif and the District Judge have found that the mortgage money was advanced by Srirangammal, Appanna Iyengar's widow, out of the sale proceeds of properties which had formed part of his estate and had been sold by her under Exhibit C as guardian of the plaintiff and on the footing that he was the adopted son of Appanna Iyengar. They have also found that this was done to defraud Eangasami Iyengar who was also claiming to have been adopted in the event of the disputes ending in his favour and the District Judge applying apparently the maxim allegans turpitudinem suam non est audiendus has dismissed the suit. The plaintff's cause of action in the amended claim is that the mortgage was taken benami in his name for this fraudulent purpose, and it appears to be well settled, as laid down by A.G. Smith, L.J., in Scott v. Brown, Doering Macnab and Co. (1892) 2 Q.B. 724 that, if a plaintiff cannot maintain his cause of action without showing that, as part of such cause of action, he has been guilty of illegality, the courts will not assist him in his illegality. See also Taylor v. Chester (1869) L.R 4 Q.B. 309 Gordon v. Chief Commissioner of Metropolitan Police (1910) 2 K.B. 1080. In Ferret v. Hill (1859) 15 C.B. 207 a plaintiff who had taken premises for the purpose of using them for prostitution and had been ejected by the landlord for so using them was allowed to recover possession from the landlord, but this has been explained in Gordon v. Chief Commissioner of Metropolitan Police (1910) 2 K.B. 1080 on the ground that the plaintiff was entitled to possession under his lease and that the purpose for which he acquired the premises was not a matter which he had to prove to establish his cause of action.
2. In the present case the plaintiff as part of his cause of action has to prove that the mortgage taken, in the name of Namammal was benami for him, and the finding is that it was so taken with a fraudulent intention. It is however well settled that this is not a bar to a suit unless a fraud has been in fact effected. Petherperumal Chetty v. Muniandi Servai (1908) 18 M.L.J. 277 : 35 I.A. 98. The mortgage money in the present case was the proceeds of certain properties sold by the widow of Appanna Iyengar under Exhibit 0 and Rangasami Iyengar having by Exhibit D renounced his claim to be the adopted son and to the properties comprised in Exhibit C, it follows in my opinion that no fraud has been effected in this case and the plaintiff is entitled to succeed. I would reverse the decision of the lower appellate court and restore that of the District Munsif with costs throughout.
3. With all respect I am not at present clear that the present case is one of those, in which the plaintiff cannot maintain his cause of action without showing, as part of it that he or a person, under whom, he claims, has been guilty of illegality. No doubt in his plaint, as amended, he said that ' the amount of the suit land was given from the estate of his adoptive father by his adoptive mother for his benefit and the document was obtained in the name of his natural mother benami having in view the litigation that was going on then regarding his adoption; and this was an admission of a wrongful conversion, which no attempt has been made to defend. But it has not so far been shown that this averment or proof of it was necessary for the establishment of plaintiff's case; or that more Was required than proof that his natural mother, the ostensible mortgagee, had the funds and invested them, whatever their origin, for plaintiff's benefit in a, manner which was innocent in itself, in the suit mortgage, If such proof could be given without reference to that origin, it and plaintiff's admission regarding it would be immaterial. The distinction involved is justified by reference to Tassell v. Cooper (1850) 9. C.B. 509 Farmer v. Russel (1798) 1 Bos. &. P. 296 and Gordon v. The Chief Commissioner of Metropolitan Police (1910) 2 K.B. 1080 the plaintiff in the two last mentioned cases having actually alleged and given evidence of a tainted origin for the money claimed. This aspect of the case was not present to the minds of the lower courts; and, if these were the only facts, I should hold that a remand in order to its consideration would be necessary.
4. There is however Exhibit B, which, I agree with my Lord, covers the land, from the sale of which the money lent under the suit mortgage was derived, and the money itself, and whether the result of that document is to negative the carrying out of any fraud on its executant or, as I should with all due deference prefer to hold, to vest in plaintiff the ownership of the land or the money which now represents it, the result is the same, that plaintiff is entitled to sue. I concur in the. decision proposed.