1. (After stating the facts as above, their Lordships continued): Since the appeal to this Court was preferred Govinda Kuar has died. Luchmon Prosad and Ramjani have been substituted as appellants, and by another order of this Court Mohesh Prosad has also been joined as a co-appellant.
2. The substantial contention on behalf of the appellants are (i) that the family property was partitioned before 1865; (ii) that Gonesho, and Govinda Kuar, respectively, were the real proprietors of the Mouza Tendua; and (iii) that, even if they were benamidars, the benami transactions have been set up by the plaintiff for the purpose of defrauding creditors, and that, in fact, Bhagwat Ram and Bichoha Ram, the two creditors, were defrauded by this benami transfer, and that the Court, therefore, cannot relieve the plaintiff from the consequence of his fraud.
3. The respondent contends that Kishun Prosad and Janki Prosad were members of an undivided Hindu family; that the Mouzah Tendua has been all along joint family property, though standing benami in the names of various female members of the family, and that, as joint property, it devolved at Janki Prosad's death on the plaintiff by the right of survivorship; and that the fact that the property was protected from seizure by Bhagwat and by Bichcha Ram does not disentitle the Court to grant the plaintiff the relief claimed.
4. On the first point in issue between the parties, i.e., whether the family was or was not joint, the defendant relies on two deeds, one a conveyance of 8 annas share in Mehal Okri and Sonasu Niati made by Janki Prosad in favour of Govinda Kuar, and the other a similar conveyance of a similar share of the same property made by Kishun Prosad in favour of Radhika Kuar. Each document is dated November 1865, and each alleges that the property conveyed has fallen to the share of the vendor in partition, and it is a singular and significant circumstance that each brother is a witness to the execution of the others deed. The defendant's oral evidence as to separation is meagre and unsatisfactory. Govinda indeed says that the brothers separated 30 or 35 years before the suit was brought, and other witnesses say they lived separate, but one of them, Sawadagar, admits that the brothers occupied 'same kita,' and so far as Govinda Kuar herself is concerned, she admits that during Gonesho's lifetime, Janki Prosad, Kishun Prosad and Earn Narain lived together jointly with Gonesho. The plaintiff gives oral evidence to show that he and his brother were living jointly, and he produces a pottah granted by himself and his brother jointly in 1886, and some letters which passed between them. These letters are couched in the terms of the greatest affection, and refer to money matters and to the cultivation of their land, treating it on the footing of their having a common interest. Those letters were written about the years 1888, 1889 and are consistent, and only consistent with the fact that the brothers were then joint. The defendant's evidence at the highest only points to the partition of one estate about 1865. The plaintiff, on the other hand, indicates that the brothers were joint in 1888. On the balance of the evidence, we agree with the learned Subordinate Judge in thinking that the defendant has failed to establish any partition between the two brothers.
5. The next finding of fact, which has been questioned before us on appeal, is that Gonesho and the defendant No. 1 were benamidars, and that the property in truth is the property of the joint family, and it becomes necessary to see, whether the evidence supports the finding of the learned Subordinate Judge on this point.
6. It is not necessary to discuss the earlier facts and dealings with this property by Ram Narain: these transactions took place upwards of half a century ago; it is sufficient to see what took place on the transfer of the ostensible title to the property Tendua by Gonesho in 1853, and to see what evidence there is as to subsequent dealings with the proceeds of the estate.
7. Now, if Kishun Prosad's oral evidence is to be believed, this property belonged to his father Ram Narain, though it stood in the farzi name of his mother, and the conveyance to Govinda and Ram Dulari was made to protect the property from Bhagwat's decree and was only a benami transaction, and that the proceeds of the property were appropriated by the family.
8. This is met by the allegation by Govinda, that she purchased for valuable consideration, i.e., for Rs. 3,000, of which some 1,000 was obtained by the sale of ornaments, and 2,000 advanced by her father. But it is to be observed that the whole of the purchase-money was Rs. 3,000, and the conveyance was to Govinda and Dulari jointly. Yet the whole purchase-money was found by Govinda or her father. Govinda meets this difficulty by asserting that Dulari was her cousin, and that she was never Earn Kishun's wife, but even this assertion does not clear the ground, or show Dulari's share became vested in Govinda. Then it is asserted that Govinda's father was a poor man, why should he have given her Rs. 2,000 for the purchase of an estate, when she was already provided for by her marriage? Then, too, the oral evidence as to any separate appropriations of this mouza is very meagre. Acoordrag to Govinda's own account, the collections were made by her husband Janki, who was the Kurta of the family, and according to Kishun, they were dealt with as part of the joint family property. As has already been pointed out, the evidence shows that the family was joint, the proceeds then, of the estate are shewn to have come into the hands of the Kurta, and the story told as to the purchase-money and the acquisition by Govinda of Dulari's title does not appear to be true. But there are other matters on which the defendant relies; one is, that the leases, suits, and revenue challans relating to the Mouzah Tendua are in the defendant's name, and are produced by her, and, secondly, the judgment of the Munsif in the proceedings taken by Bichcha Ram in 1875. As to the first of these matters the fact that these documents are in her name is only consistent with the fact that she is the registered proprietor and throws no light on the question of benami, and the circumstance that they are produced by her is explained by the fact that they were, until quite recently, in the possession of Janki Prosad, the lady's husband and the Kurta of the family. The judgment in the case of 1875 is no doubt a strong piece of evidence in favour of the defendant.
9. Notwithstanding this judgment, which is not binding as 'res judicata' as pointed out by the Subordinate Judge, we think that the evidence indicates that the learned Judge in the Court below was right in the conclusion to which he has come, and that Govinda's real title to the mouzah was merely a benami one. The real difficulty, to which it gives rise, is whether the plaintiff, having set up the defendant's title, as real and not merely benami for the purpose of defeating the rights of Bhagwat and Bichcha Ram, the Court ought not to refuse to assist the plaintiff to escape from the consequences of that fraud.
10. Authorities were, however, cited, which support the proposition that, where a colourable conveyance is executed for the purpose of enabling the transferor to defraud his creditors, the transferor is entitled to recover back his property before the fraud is actually carried out, and that there is a 'locus penitentice,' until a creditor has been actually defrauded.
11. This proposition is supported by the English case of Taylor v. Bowers (1876) L.R. 1 Q.B.D. 291 and the Indian case of Sham Lal Mitra v. Amarendro Nath Bose (1895) I.L.R. 23 Cal. 460.
12. But when the intended fraud has been wholly or partially carried into effect a different state of things arises, and the Court will not lend its aid to assist a transferor, who has defrauded a creditor by making a colourable transfer of his property, to get it back from his transferee. The proposition is laid down in the cases of Goberdhan Singh v. Ritu Roy (1896) I.L.R. 23 Cal. 962 and Kali Charan Pal v. Rasik Lal Pal (1894) I.L.R. 23 Cal. 962 (note) and the principle has been recently affirmed in the case of Banka Behary Dass v. Baj Kumar Dass (1899) I.L.R. 27 Cal. 231 in which the English case of Taylor v. Bowers (1876) L.R. 1 Q.B.D. 291 is distinguished.
13. The principle of law which lies at the root of these cases is that the Courts will assist no man to obtain advantage from his own fraud. In these cases, the fraud is committed when the true owner of the property has successfully used another's name to shield his property from his creditors, and as defeated a creditor by presenting as real a transfer which he intends to be nominal. He enables another to deal with the property as owner to the defrauding of his own creditors: he desires to have the advantage of enjoying the property as real, though nob as ostensible, owner. Unless he can so enjoy it, he ails to carry his fraud to a successful conclusion. But in this case, different considerations arise. If Govinda had been enjoying this property in her own exclusive right, the Court would have been bound to give effect to the principles laid down in the cases to which we have referred, and to have refused to assist the plaintiff, but it has not been shown that Govinda ever was really in possession of the property. On the contrary it appears that, notwithstanding the judgments of the 25th July 1855 and the 30bh July 1875, to which we have referred, for great many years before the suit was brought the property in question was enjoyed as part of the family property--the grains were brought to the family gola--the profits were expended on the joint purposes of the family and no effort was made by Govinda to set up a right to the enjoyment of Mouzah Tendua, until she distrained upon the tenants about the year 1891. Such conduct on her part really amounts to a disclaimer. The plaintiff, therefore, has succeeded in proving that the property has been enjoyed by the joint family, consisting of himself and his brother for a great many years, and for a period of more than 12 years since the last judgment in 1875 before action brought. He proves that his brother died in 1890. In our opinion that is sufficient to entitle him to succeed in a suit for declaration of right and confirmation of possession.
14. The effect of a long continued possession by the true owner as against the benamidars is incidentally referred to by Sir Barnes Peacock in the case of Bihans Kunwar v. Bihari Lal (1868) 3 B.L.R.F.B. 15. In that case the question was, whether, when a certified purchaser sued a person in possession of the purchased property in ejectment, the defendant was debarred by Section 260 of Act VIII of 1859 from pleading, that the certified purchaser purchased benami for him. The Chief Justice (Sir Barnes Peacock) in giving judgment to the effect that the defendant is so debarred, unless he is in possession under circumstances which amount to a transfer to him of the title which the plaintiff derived under the purchase, after pointing out that the Statute of Limitations in the case of immoveable property not only debarred the remedy, but conferred a title, goes on to say 'If a benamidar should acknowledge the purchase to have been made benami and waive the right conferred on him by Sections 259 and 260 and give up possession to the real purchaser as the rightful owner, such act would probably amount to the transfer of the title, as well as of the possession, to the real purchaser.' This reasoning, which the Privy Council in appeal against the judgment of this Court in that case (as we understand it) approved see Buhuns Kowur v. Lalla Lall Buhoree (1872) 14 Moo. I.A. 496 (527), appears to us to be applicable to the present case; and, granting that the Court would not have lent its aid to disturb Govinda, if she had been in possession of the mouzah in question, it does not follow that the Court is not entitled to confirm the possession of Kishun Prosad in the property, which he and his brother enjoyed for so many years.
15. For these reasons we think that the judgment of the Lower Court must be affirmed and the appeal dismissed with costs.