1. We agree with the learned Judge in holding that the plaintiff must have intended to defeat his son's claim to the property and that, therefore, the arrangement made between ban and the defendant was contrived in fraud of his son. But it was argued that since the plaintiff had repented of his conduct before any harm was done to his son or any effect given to the transaction, it was competent to him to repudiate it and have the property restored to him.
2. The case of Symes v. Hughes L.R. 9 Eq. 475 cited by the appellant's counsel does not really support the proposition for which it was cited, for there, as the Master of the Rolls observes, the suit was prosecuted for the purpose of enabling the creditors to recover something. Here it is the party himself who, in his own interest, seeks to have the transaction annulled. It is very doubtful whether, in a case in which the maxim in pari delicto would otherwise apply, any exception arises by reason that the illegal purpose has not been carried out Kearley v. Thomson 24 Q.B.D. 742 and Sham Lall Mitra v. Amarendro Nath Bose I.L.R. 23 Cal. 460 In the present case the transfer of the property to the defendant had been completed, nothing remained to be done by the plaintiff, and it was only by means of a suit that his son vindicated his rights. Under these circumstances, we do not think it is possible to say that the plaintiff's fraudulent purpose had not been carried into effect.
3. There is, however, another ground on which we may base our judgment and that is that it is not competent to a party to a collusive decree to seek to have it set aside. Strangers, no doubt, may falsify a decree by charging collusion, but a party to a decree not complaining of any fraud practised upon himself cannot be allowed to question it.
4. There is ample authority for this proposition beginning with the dictum in Prudham v. Phillips 2 Amble 763 cited in argument in the Duchess of Kingston Case 20 State Trials 479.
5. The distinction between fraud and collusion lies in this that a party alleging fraud in the obtaining of a decree against him is alleging matter which he could not have alleged in answer to the suit, whereas a party charging collusionis not alleging new matter. He is endeavouring to set up a defence which might have been used in answer to the suit, and that he cannot be allowed to do consistently with the principle of res judicata.
6. The appeal is dismissed.