Macpherson and Stevens, JJ.
1. The object of this suit is to obtain a declaration that the kobala of the 5th Assar 1296, executed by the appellant's father in favour of the respondent, is a benami and fictitious deed not affecting the appellant's right to the property which it purported to convey, and to get such further relief as the Court may think fit to give in confirmation of the appellant's title and possession. The plaint discloses that the deed in question was executed at the respondent's suggestion to secure the property against persons who had obtained decrees against the appellant's father, that it was a purely colourable transaction without consideration or any transfer of possession, and that the respondent was now fraudulently setting up a title to the property. The respondent put in a written statement, in which he claimed title to the property under the kobalas impugned by the appellant, alleging that there was a good and valid sale for consideration. Admittedly the deed in question was used to give effect to the fraudulent purpose for which, according to the appellant's case, it was executed, The holder of a decree against the appellant's father attached the property; the respondent was allowed to put forward a claim to it on the strength of this deed; and the claim was allowed by the Court. On the allegations in the plaint, coupled with the undisputed facts mentioned, the Subordinate Judge, without taking any evidence, dismissed the suit on the ground that the plaintiff could not maintain it.
2. In our opinion the decision is right and the appellant cannot ask the Court to relieve him from the consequence of an accomplished fraud. He cannot be allowed to show the true nature of the conveyance which gave a good legal title to the respondent, when the conveyance has been successfully used to give effect to the fraudulent purpose for which it was executed. In none of the cases decided in England and in this country, which have been cited in the argument, except perhaps the case of Param Singh v. Lalji Mal (1877) I.L.E., 1 AIL, 403, does it appear that relief has been given in a case such as this; and in the recent cases of Goberdhan Singh v. Ritu Roy (1896) I.L.R., 23 Cal., 962, and of Kali Charan Pal v. Rasik Lal Pal (1894) I.L.R., 23 Cal., 962, note, where there was a colourable conveyance in fraud of creditors, and the fraud had been carried into effect, this Court refused to give the plaintiff relief. The same course was adopted by the Madras Court in Rangammal v. Venkatachari (1895) I.L.R., 18 Mad., 378, and in Chenvirappa v. Puttappa (1887) I.L.R., 11 Bom., 708, West and Birdwood, JJ., dissented from the Allahabad case mentioned above.
3. It is argued that there is no real distinction between cases in which there is a fraudulent conveyance to cheat creditors, but nothing more is done in furtherance of the fraud, and cases in which the fraudulent purpose is effected wholly or partially by means of the fraudulent conveyance; and we have been referred to a number of cases in which it is said that the stricter and broader rule adopted in the earlier cases in this Court, e.g., in Alooksoondery Goopto v. Horo Lal Roy (1866) 6 W.R., 287, and in Kalee Nath Kur v. Doyal Kristo Deb (1870) 13 W.R., 87, has been relaxed and relief given without any such distinction being drawn. The cases referred to are Luteefoonissa v. Goor Surun Doss (1872) 18 W.R., 485 (494); Sree Nath Roy v. Bindoo Bashinee Debia (1873) 20 W.R., 112; Debia Chowdhrain v. Bimola Soonduree Debia (1874) 21 W.R., 422; Gopee Nath Naik v. Jodoo Ghose (1874) 23 W.R., 42; By hunt Nath Sen v. Goboollah Sikdar (1875) 24 W.R., 391, and Thacoor Prosad v. Baluck Ram (1882) 12 C.L.R., 64.
4. All these cases purport to follow the decisions of the Judicial Committee in Ram Surun Singh v. Pran Pearee (1870) 13 Moore's I.A., 551, and Oodey Koowwur v. Ladoo (1870) 13 Moore's I.A., 585: 6 B.L.R., 283. In the former case the plaintiff sued for possession on a conditional deed of sale executed by the defendant, who pleaded that the deed had been merely nominally executed without any consideration to protect the property against persons claiming it as heirs of her husband. In a previous suit brought by those persons for the property and charging that the conveyance was made to deprive them of their rights, the plaintiff and defendant both asserted that the deed was a good deed for consideration. The suit was dismissed on the sole ground that there was no right of suit in the widow's lifetime. It was contended that the respondent was estopped by her pleadings and admissions in that suit, and could not deny or contest the validity and legal effect and operation of her deed, or set up her own fraud to prevent the operation of it. Their Lordships held that the deed created no estoppel, that it was a case of a common mortgage in which it was open to the mortgagor to deny the receipt of the money and to cut it down to a nominal sum or nothing, and that being so, and the instrument being relied on by a person out of possession seeking to recover possession through the medium of a foreclosure suit, there was nothing to prevent the defendant from showing the real truth of the transaction. As regards the estoppel by pleading, they said that a pleading by two defendants against the suit of another plaintiff could not amount to an estoppel as between them.
5. In the latter case, the plaintiff claimed the property as heir of her deceased son Shib Lall, and denied that the latter had been given in adoption to the defendant, who was the widow of Shib Lall's brother. In a previous suit brought by the respondent for herself and as guardian of Shib Lall to redeem a property mortgaged by the plaintiff's husband, it was objected that she was not the guardian of Shib Lall and could not maintain the suit. The plaintiff intervened in that case and put in a petition supporting the adoption and disclaiming any interest in the property. Their Lordships said that if the petition was to prevent the plaintiff from recovering the property, it would only do so either because it operated as a conveyance or a contract to convey, or by way of estoppel; that it could not operate as a conveyance or contract, because the plaintiff had at that time no interest in the property, and never contemplated a conveyance of the right which she now had; that it did not operate as an estoppel, because the fact that the plaintiff professed to resign some supposed interest as heir of her husband could not estop her from setting up her real right as heir of her son when that right accrued; and they added that there was no consideration, and no misrepresentation to the defendant, who knew the actual facts and did not alter her position in any way.
6. These were not therefore cases of a fraudulent conveyance by a deed of absolute sale, to which effect had been given in aid of the intended fraud, and they furnish, we think, no authority for the broad contention now put forward. It is unnecessary to allude in detail to the cases cited from the Weekly Reporter; the facts are not fully stated, and in none of them do the facts appear to be similar to the facts of this case. In Luteefoonissa v. Goor Surun Dass, it was held, citing the case of Ram Surun Singh v. Pran Pearee (1870) 13 Moore's I.A., 551, that a party against whom the admission of a deed of gift is sought to be used may explain the matter and show the real nature of the transaction. In Sreenath Boy v. Bindoo Bashinee Debia, the question was whether a jote had a real existence, or was, as the defendant contended, only colourably created. It was held that the defendant was not stopped by a statement of the person from whom he derived title by purchase from showing that the jote was only colourably created, and the two cases in the 13th volume of Moore were cited as an authority. In Debia Chowdhrain v. Bimola Soonduree Debia, the defence in substance was that the persons from whom the plaintiff derived title by purchase were really the benamdars of the defendant, who was the real owner. It was held again, citing the cases in the 13th volume of Moore, that the defendant was not estopped from showing the true nature of the transaction by some admission which she had made in a previous suit. In Gopeenath, Naik v. Jodoo Ghose, the facts are not at all stated, but Markby and Mitter, JJ., said they adopted the view of the law taken in Debia Chowdhrain v. Bimola Soonduree Debia. In Bykunt Nath Sen v. Goboollah Sikdar, there is also on report of the facts, but Markby, J., said that he dissented from the Judge's statement that 'it is a settled principle that when a father makes a fictitious sale to cheat his creditors, neither he nor his heirs can afterwards impugn its validity;' and he added that this principle was inconsistent with the decisions in the 13th volume of Moore and in the 21st volume of the Weekly Reporter. In none of those cases does it appear that the plaintiff was asking for relief against his own fraudulent conveyance which had been successfully used to defraud a creditor. It is true that in Sreenath Boy v. Bindoo Bashinee Debia, and in Debia Chowdhrain v. Bimola Soonduree Debia, Sir Richard Cough made some remarks of a general character, which must, however, be taken in connection with the facts of the particular case before him. In the former case he said that the questions 'to what extent a person shall be at liberty to allege and prove fraud in a matter to which he was a party, or shall be at liberty to allege and prove that any admissions made by him were made with a fraudulent purpose and were not true, and also to what extent persons claiming under any one who had made such admissions will be at liberty to do the same,' had been much discussed in the Courts in England. Then he said that in this respect there was no difference between the law in England and the law in India, and for the law in England he cited Symes v. Hughes (1870) L.R., 9 Eq., 475, and said that the law in India bad been settled in the case reported in the 13th volume of Moore, page 551. In Symes v. Hughes, which Sir Richard Couch cited in both the cases referred to, Lord Romilly, M.R., said: 'Where the purpose for which the assignment was given is not carried into execution, and nothing is done under it, the mere intention to effect an illegal object, when the assignment was executed, does not deprive the assignor of his right to recover the property from the assignee, who has given no consideration for it;' and he added that in that case no harm had been done to any creditor, and that the suit was now being prosecuted to enable the creditor to recover something. We cannot suppose that Sir Richard Couch would have cited this case as stating the law in England without recognising the distinction referred to in it.
7. The case which at first sight seems most in the appellant's favour is that of Thacoor Prosad v. Baluck Ram (1882) 12 C.L.R., 64. There Thacoor Prosad, who was a member of a family to which apparently the Mitakshara rules applied, claimed as exclusively his a property which had been acquired in his name. The defendants were the purchasers of the rights and interests of the other members of the family. Thacoor Prosad had mortgaged the property, and to defeat the claims of the mortgagee he and the other members of the family set up in execution proceedings a partition deed by which no part of the property in question had been allotted to Thacoor Prosad. It was found that the partition deed was not a real transaction, and that the property had been acquired in Thacoor Prosad's name for all the members of the family. Mitter and Maclean, JJ., held, citing the case in the 13th volume of Moore, page 551, that Thacoor Prosad was entitled to show the real character of the partition deed in the suit between himself and the purchasers of the rights of the persons whose fathers had joined with him in setting it up. The, defendants had not, however, acquired the interests of Thacoor Prosad, the latter had not parted with his interest, and it was found that although not entitled to the whole property, he was entitled to his share as a member of the family.
8. The English cases cited do not help the appellant. In Bowes v. Foster (1858) 2 H. & N., 779: 27 L.J., Ex., 262, there was a pretended sale, but the plaintiff had not parted with the title to the goods and nothing further was done in furtherance of the intended fraud. So also in Taylor v. Bowers (1876) L.R., 1 Q.B.D., 291, the title to the goods was still in the plaintiff, and, as Lord Justice James said, he was not obliged to state a fraud of his own as part of his title. Nothing moreover had been done to carry out the fraudulent or illegal object beyond the delivery of the goods.
9. The argument that in the case of a fraudulent conveyance there is no distinction between the cases in which the fraudulent object has been carried into execution and the cases in which it has not, might, if sound, be a good ground for holding that the Court would not give relief in either case, but not for holding that it would give relief promiscuously in both. It is said that by refusing relief the Court is aiding the defendant to commit a fraud; but this is a lessee evil than giving the plaintiff relief against a fraud which he had successfully perpetrated. He is asking the Court to undo what he did for a fraudulent purpose by means of a fraudulent conveyance which was used to accomplish that purpose, and the authorities, we think, show that the Court will not give him any relief.
10. It is said that the money due under the decree referred to at the commencement of this judgment was afterwards paid, that the creditor received Rs. 5,000 in satisfaction of his claim for Rs. 8,000 and gave a receipt in full, and that the plaintiff ought to have been allowed to give evidence in support of his case. We think this makes no difference, and if the plaintiff would not succeed on the facts as stated, it was not necessary to go into evidence. The appeal is dismissed with costs.