Chandra Reddi, J.
1. This second appeal is filed by the 1st defendant against the judgment and decree of the Subordinate Judge of Chingreput who reversed the decision of the trial Court dismissing the suit brought by the respondents for a declaration of their title to the suit property and for the recovery of possession thereof. The facts material for the purpose of this enquiry are as follows: One Damodara Mudali executed a sale deed, Ex. P. 1, in favour of the appellant conveying his divided half share in the suit house for a stated consideration of Rs. 600 on 9-6-1935 and had it registered on 3-10-1935. The vendor took the same property on lease from the vendee evidenced by the original of Ex. D. 1 dated 3-10-1935. A creditor of Damodara attached the suit house in execution of a decree which he obtained against him. The first defendant in the present suit intervened with a claim petition but his claim was disallowed on the ground that the sale was effected with a view to defraud the creditors. The defeated claimant did not bring a suit to set aside the claim order as the decree debt was satisfied out of the sale proceeds of other properties belonging to Damodara. Subsequently, the present plaintiffs instituted a suit, O. S. No. 176 of 1937 against the present 1st defendant that is the vendee under Ex. P. 1 and the widow and mother of Damodara (Damodara having died by that time) for an injunction restraining them from interfering with the plaintiff's possession on the allegations that Damodara and the plaintiffs were members of an undivided Hindu joint family and that on the death of Damodara the plaintiffs got the suit property by survivorship. This suit was ultimately dismissed as it was found that Damodara on the date of Ex. P. l was divided from the plaintiffs and that the plaintiffs were not In possession of the property at the time of the suit. It Is not necessary (or me to refer to some other litigation in respect of the same property as that has no bearing on the controversy in the present appeal. Having failed there, the plaintiffs laid this action for the reliefs mentioned above with the averments, that Ex. P. I was a sham and nominal document not intended to convey title and that they were entitled to the properties as the reversioners to the estate of Damodara.
2. The suit was resisted mainly on the plea that the sale deed Ex. P. I was a genuine one and that the plaintiffs could not put forward any claim thereto. The trial Court dismissed the suit holding that Ex. p. l evidenced a real transaction and that it was not a nominal document executed in fraud of creditors. On appeal the lower appellate Court in disagreement with the trial Court found that Ex. P. 1 was executed with a view to defraud the creditors. In the result, it decreed the suit.
3. It may be stated that the learned Subordinate Judge had not kept in view the distinction between a sham and fictitious document under which no title was intended to pass and a real document executed with intent to defraud creditors. Having regard to this fact, I had to call for a finding when the appeal came on for hearing for the first time in September 1951 as to whether Ex. P. 1 was a mere sham document under which no title was intended to pass to the vendee and therefore a mere nullity or whether it was a document by which legal title was intended to vest in the vendee with the object of defrauding the creditors. The finding submitted by the learned Subordinate Judge is that the intention of Damodara was not to defraud his creditors but that his object was only to retain the suit property for himself and make the creditors proceed against the other properties, that consequently Ex. P. 1 was not intended to convey legal title to the first defendant and that it was merely a sham document. I will presently show that this finding is not borne out by the evidence on record and is also self-contradictory and is therefore not entitled to any weight. I propose to consider the evidence afresh and give a decision on this question on the materials before me.
4. In support of this appeal, Mr. Natesan on behalf of the appellant contended that in view of the finding of the learned Subordinate Judge that there were no creditors at all in fraud of whom this document is said to have been executed, the only conclusion that could have been reached by the learned Subordinate Judge was that Ex. P. 1 evidenced a genuine transaction and could not be impeached on the ground that it was entered into with a view to defraud the creditors. I do not think that I can accede to this argument having regard to the fact that there is evidence to show that there were some creditors at the time of the execution of Ex. P. 1 to defeat whom the document is said to have been executed & that the finding given in all the prior litigations was that this document was executed with intent to defraud the creditors.
5. It was next argued that the object in entering into the transaction being a fraudulent one and the reason for the non-fulfilment of the fraud being not the 'locus paenitentiae' of the fraudulent grantor but the intervention of the Court, the transferor cannot invoke the aid of the Court to recover the property transferred by him. According to him, it is only when an illegal transaction is not carried out due to repentance on the part of the transferor and not due to the intervention of third parties that the transferor would be entitled to claim the recovery of the property through Court. In support of this proposition reliance was placed by him on -- 'Muthooraman Chetti v. Krishna Pillai', 29 Mad 72 and also on the opinion expressed by Pritchard J. in -- 'Bigos v. Boustead', (1951) 1 A11 E. R. 92.
6. I do not think that -- 'Muthuraman Chetti v. Krishna Pillai', 29 Mad 72 carried the appellant very far. All that was laid down there was that the rule that a person 'in pari delicto cannot recover is applicable not only to cases where contemplated fraud is completely carried out but to cases where there has been substantial part performance of the same as well. Undue weight cannot be attached to the remarks at page 74 of the report which run thus:
'Turning to the facts here, we do not find a case when a party to a fraudulent transaction relented before anything was done in pursuance of the intended fraud and the unlawful compact was in no way carried out.'
These remarks should be understood only with reference to the context in which they are used.
7. No doubt the judgment of Pritchard J. in 'Bigos v. Boustead', (1951) 1 A11 E. B. 92 supports to a great extent the position taken up by Mr. Natesan. The following observations of the learned Judge at page 100 of the report are pertinent:
'I confess that there was a time when I thought it would be right to apply to the facts of this, case the reasoning of the decision in -- 'Taylor v. Bowers', (1876) 1 Q. B. 291, but, having considered all the authorities, I do not take that view. J think that what is to be extracted from the authorities may be treated as follows. I think-that they show, first, that there is- a distinction between what may, for convenience be called the repentance cases, on the one hand, and the frustration cases, on the other hand. If a particular case may be held to fall within the category of repentance cases I think the-law is that the Court will help a person who repents, provided his repentance comes before the-illegal purpose has been substantially performed. If I were able in this case, to take the view that the defendant had brought himself within that sphere of the authorities, it might well be-that I would have been able to help him by saying that his repentance had come before the illegal purpose had been substantially performed but I do not take that view. I think, however, that this case falls within the category of cases which I call the frustration cases.'
8. I do not think I can share this view of the-learned Judge. It is not only opposed to the rule of law contained in Section 84 of the Trusts Act but to the principles enunciated in the Privy Council decision in -- 'Pethaperumal Chetti v. Muniandy Servai', 35 Cal 551, which has been followed by the Pull Bench of this Court in -- 'Venkataramayya v. Pullayya', 59 Mad 998-
9. In -- Pethaperumal Chetti v. Muniandy Bervai', 35 Cal 551 in order to defeat the claim of an equitable mortgagee to certain property the predecess or-in-interest of the plaintiff and another member of the joint Hindu family executed a document purporting to be a sale of the property in favour of the predecessor--in-interest of the defendant. But the equitable mortgagee succeeded in getting a declaration that his mortgage could be enforced against the property covered by the last conveyance in priority to the last mentioned conveyance as the transferee under the sale deed was aware of the existence of the equitable mortgage. The claim arising under the mortgage was subsequently satisfied. In a suit filed by the transferor for the recovery of the property-purported to have been conveyed under the-sale deed the defence put forward was that as the grantor was in 'pari delicto' his successor-in-interest could not recover the property although the fraud was not successfully carried out. This objection was overruled and a decree was granted. The Privy Council repelled the contention that if the plaintiff was allowed to recover the property in dispute and if the maxim 'pari delicto potior est conditio possldentis' were not rigorously applied to such- cases, much confusion would be imported' into the law in the following words:
'The answer to that is that the plaintiff, in suing to recover possession of his property is not carrying out the illegal transaction but is seeking to put every one, as far as possible, in the same position as they were in before that transaction was determined upon. It is the defendant, who is relying upon the fraud, and is seeking to make a title to the lands through and by means of it. And despite his anxiety to effect great moral ends, he cannot be permitted to do this. And, further, the purpose of the fraud having not only not been effected, but absolutely defeated, there is nothing to prevent the plaintiff from repudiating the entire transaction, revoking all authority of his confederate to carry out the fraudulent scheme, and recovering possession of his property.'
The decision of the Court of Appeal in --'Taylor v. Bowers', (1876) 1 Q. B. 291, and the authorities upon which that decision is based, clearly establish this. --'Symes v. Hughes', (1870) 9 Eq. 475, and --'In re Great Berlin Steamboat Co', (1884) 26 Ch. D. 616 are to the same effect. And the authority of these decisions, as applied to a case like the present is not, in their Lordships' opinion, shaken by the observations of Pry L. J. in --'Kearley v. Thomson', (1890) 24 Q. B. 742. The statement contained in the subsequent portion of the judgment that it is only when a contemplated fraud was effected that a fraudulent transferor would forfeit the right to seek the assistance of a Court to get back the property he has parted with furnishes a complete answer to the contention put forward by Mr. Natesan. It is evident from these observations that there is no foundation for the distinction between the fraud not being carried out on account of the repentance of the grantor and the frustration of the fraud through the intervention of Courts or third parties. In my opinion, in judging whether a fraudulent grantor can recover the property he had parted with, with the aid of the Court, the test is whether the fraud has been perpetrated or whether there has been a, substantial part performance of it and not whether it was due to the penitence of the fraudulent grantor or whether it fell through on account of the intervention of a Court or third parties.
10. -- 'Petheperumal Chetti v. Muniandy Semi, 35 Cal 551 was followed by a Full Bench of this Court in -- 'Venkataramayya v. Pullayya', 59 Mad 99B. What happened there was this. With a view to cheat his son a Hindu father transferred an item of joint family property in favour of his daughter. Subsequent to this he filed a suit for partition of family properties in which the property covered by the sale deed was not included. When objection was taken to it by the son in his written statement, to this exclusion, the father agreed to include this property for partition and asked for its being allotted to his share. Ultimately the matter was compromised and the property was allotted to his share and he recovered possession thereof from his son. Shortly thereafter the maternal grandson that is the transferee's son filed a suit for the recovery of the property in dispute. The defence to the suit was that the sale in favour of his daughter was a 'benami' transaction entered into for the purpose of cheating his son. The question arose whether it was open to the 1st defendant to plead his own fraud. The answer given by the Full Bench was in the affirmative. It took the view following --'Petheperumal Chetti v. Muniandi Chetti', 35 Cal 551, that in order to deprive a fraudulent grantor of his right to recover the property with the assistance of a Court, the intended fraud must . have been effected or at least there must have been a substantial part performance of the intention to defraud. The learned Judges expressed the opinion that a mere fraudulent intention as evidenced by the impeached document was not sufficient.
11. I may also refer to Section 84 of the Trusts Act. The rule enacted in that section is in conformity with the principles embodied in the decisions quoted above. (His Lordship after quoting the section stated) On this statutory provision, and the principles enunciated in -- 'Petheperumal Chetti v. Muniandi servai', 35 Cal 551 followed in -- 'Venkataramayya v. Pullayya', 59 Mad 993, and in other rulings to which I need not allude here, my conclusion is that so long as the contemplated fraud is not carried out or at least there has been no substantial part performance of it, the grantor although in 'pan delicto' is entitled to invoke the assistance of a Court for the recovery of the properties he has parted with irrespective of the fact whether the frustration of the fraud was the result of the 'locus paenitentiae' of the transferor or due to other causes. I therefore reject the contention based on the theory propounded by Pritchard J. in -- 'Bigos v. Boustead', (1951) 1 All E. R. 92 and find that the plaintiffs can get a decree for toe recovery of the property if otherwise they are entitled to do so.
12. The next submission made by Mr. Natesan is that if the object in executing a sale deed was to defraud the creditors it must be considered to be a fraudulent transfer which has to be avoided and not a sham and colourable transaction not intended to convey title which need not be set aside. In support of this he cited to me the judgment of Krishnan J. in the --'Secy, of State v. Dadi Reddi Nagiah', 36 Mad L. j 180. That judgment does lend support to this contention of Mr. Natesan. But the other learned Judge, Ayling J. remarked thus:
'I speak thus cautiously, because we have not had the benefit of any argument 'contra' and the words are open to the construction placed upon them by the learned District Judge.'
The dictum laid down by Krishnan J. is opposed to a Bench decision of this Court in -- 'Swaminatha Aiyar v. Rukmani Animal', 55 Ind Cas 766. In -- 'Palaniandi Chetti v. Appavu Chettiar', SO Mad L. J. 565 a Bench of this Court consisting of Coutts-Trotter and Seshagiri Aiyar JJ. called for a finding whether a document executed with a view to defraud the creditors was merely a colourable one leaving the real beneficial enjoyment with him who purported to transfer it or a real one meant to effect a real transfer of the property from the transferor to the transferee. The decision in -- 'Petheperumal Chetti v. Muniandi Servai', 35 Cal 551, also seems to be opposed to what is stated by Krishnan J. in -- 'The Secy, of State v. Dadi Reddi Nagiah', 36 Mad L. J. 180. In the last mentioned case it was observed that if the transaction impeached was a 'benami' one not 'intended to be operative as between the grantor and the grantee the successor-in-interest of the grantor could recover the property without asking for the cancellation of the document. It looks to me that the proposition was too broadly stated by Krishnan J. in that decision. In my opinion, whether a sale deed was a sham and simulated one not intended to convey any title or whether it was real one intended to pass title to the transferee thereunder depends upon the 'animus transferendi' at the time when the parties entered into the transaction and each has to be decided with reference to the documents & the surrounding circumstances. Nor is there any substance in the contention of Mr. Veera-raghava Aiyar that in all cases of fraudulent transfers intended to defraud the creditors, they, should be presumed to be mere sham and bogus transactions not intended to be operated between the grantor and the grantee.
13-14. (His Lordship after examining the evidence and holding that Ex. P. I was a real document intended to be given effect to stated): The next question is that if this document was not a mere sham and colourable transaction but a real one, could the plaintiffs ask for a mere declaration that they are entitled to the property without asking for the avoidance of that document? In my judgment, they cannot do it. The document! not being void but only voidable will be valid till it is set aside and the plaintiffs without having it avoided cannot recover the property. In this case, there is no prayer for setting aside the sale deed and the reliefs asked for are the declaration mentioned above and recovery of possession of the property. Consequently they cannot recover possession of the property from the 1st defendant.
15. It follows that the reliefs asked for cannot be granted and the suit has to be dismissed,The decision of the lower appellate Court decreeing the suit is unsustainable. Hence the appealis allowed. In the circumstances of this case,I direct the parties to bear their own coststhroughout. No leave.