1. The first point argued in this second appeal is that no fraud was perpetrated by the plaintiff putting the property in the name of the first defendant and that, therefore, he is entitled to get back the property which was conveyed benami for him to the first defendant. Both the Courts have found that the plaintiff was able to defraud both the Government of the legitimate Court-fee payable on the plaint in O.S. No. 36 of 1906 and the widow of Veerraju with whom he had contracted to give half the property in case he succeeded in O.S. No. 36 of 1906. The second defendant after filing O.S. No. 36 of 1906, compromised with the defendants his claim against them and got a sale of some items of property in the name of the first defendant for his benefit and then withdrew the suit in consequence of which the Government was not able to get the Court-fee payable by the second defendant on his pauper plaint. Both the Courts held that by reason of the property being put in the name of the first defendant, the suit by the widow of Veeraraju (O.S. No. 529 of 1909) on the agreement entered into by the second defendant with her husband was not decreed in the terms of her plaint, but she was only given damages.
2. On looking into the judgments of that suit, Exs. III and IV, it appears that the widow of Veerraju was not given a share in the plaint property not on the ground that it was put benami in the name of the first defendant but on the ground that the agreement with him by the second defendant was an unconscionable agreement and that, therefore, damages were an adequate remedy. No doubt in the judgment of the appellate Court Ex. IV, there are observations to the effect that the first defendant had a good title to the property and the plaintiff in that suit could not ask for a share in the property. Mr. Subba Rao's contention is that the widow of Veeraraju was not defrauded by the property being put in the name of the first defendant and, therefore no fraud was effectuated. No doubt there is something in this contention. The other fact, namely, that the Government was not able to get the Court-fee payable by the second defendant in respect of the property which he got by virtue of the litigation in O.S. No. 36 of 1906 is a circumstance which has to be considered in this case. If the property had not been put in the name of the first defendant, naturally the Court would have given a decree for payment of the Court-fee against the second defendant. This was obviated by the second defendant putting the property which he got by filing O.S. No. 36 of 1906 in the name of the first defendant. I think the object of the second defendant was palpably to cheat both the Government of its Court-fee and Veeraraju of the share to which he was entitled in case of success in that suit. When the second defendant's object was to cheat two people and he has successfully cheated one, that is a quite sufficient ground for the Court to refuse to help the second defendant to get the property from the first defendant.
3. Mr. Subba Rao contends that the plaintiff is a vendee from the second defendant and that the original agreement with Veeraraju was for his benefit and that he should be given a decree for the plaint property. In this case the plaintiff cannot be said to be a bona fide purchaser for value because he must have known that the title of the property stood in the name of the first defendant. There is absolutely no ground for saying that he was not aware of the circumstances under which the property was put in the name of the first defendant. Therefore, he is not a bona fide purchaser for value and he cannot claim the help of the Court in getting the property from the first defendant.
4. It was also urged for the appellant that the Court should take into consideration the subsequent conduct of the parties and give relief to the plaintiff. Exhibits M and N only show that the first defendant dealt with the property as the property of the second defendant. The documents only show that the real owner was the second defendant. These documents do not help the plaintiff to contend that the second defendant was either in possession of the property or dealt with the property as his. If the second defendant was in possession of the property, it is not necessary for him to come to Court and seek its aid to recover possession of the property from the first defendant. The plaintiff has to show that he was not aware of the circumstances under which the property was put in the name of the first defendant before he could ask for relief. He must come into Court with clean hands. I do not think the plaintiff was not aware of the circumstances of the case. That being so, he cannot ask for any relief. Both Courts have found against the plaintiff's contention. I agree with them in holding that the plaintiff is not entitled to any relief. The second appeal fails and is dismissed with costs. The
Memorndum of Objections.
5. The District Munsif has directed the first defendant to pay the Court-fee payable on the plaint in O.S. No. 86 of 1906 and relies upon Section 151 of the Civil P.C., as enabling him to pass such an order. It is difficult to see how Section 151 can give a power to a Court to pass an order in respect of a suit which is not pending before it. That suit, O.S. No. 36 of 1906 was disposed of long before this suit was filed. Whatever may be said of the conduct of the first defendant the Court has no jurisdiction to pass an order of this kind in a suit brought by the plaintiff for recovery of the property from the first defendant on the ground that the first defendant is a banamidar. The person primarily responsible for all the fraud is the second defendant and the Court cannot now saddle the first defendant with the Court-fee payable by the second defendant in an action to which the first defendant was a party to the previous suit. I do not sea how a Court which tries a subsequent suit can pass an order with reference to a previous suit. It may be that the motive of the District Munsif was a laudable one, but I cannot but hold that the order was passed entirely without jurisdiction. I think the Subordinate Judge would have done well to have set aside that order instead of suggesting that the first defendant should prefer a civil revision petition to the High Court. When the Subordinate Court passes an improper order and the matter is taken up on appeal to a Court which is empowered to hear appeals from the orders of such Subordinate Court, the appellate Court has jurisdiction to set matters right. T direct that this order of the District Munsif be vacated.
6. I allow the memorandum of objections so far as this point is concerned and dismiss the rest without costs.