Beverley and Jenkins, JJ.
1. In July 1890 the plaintiff, in order to defeat his creditors, executed a colorable conveyance of 3 bighas 9 cottahs of land in favour of the defendant (second party), but he alleges that he himself retained possession both of the land and of the deed. In March 1891 the defendant (second party) conveyed 3 bighas 2 cottahs of the land in question to the defendants (first party).
2. In March 1892 the defendants (first party) forcibly reaped the crop on the land, and in a criminal proceeding that followed, were declared to be in possession of the land. Plaintiff accordingly brought this suit to recover possession. The first Court found that the transaction of 1890 was a real one and dismissed the suit.
3. The Lower Appellate Court has found that the sale to defendant (second party) in 1890 was a fictitious transaction in which no consideration passed; that by virtue of it defendant (second party) was successful in preferring a claim to the land which bad been attached by the plaintiff's creditors; that the conveyance by the defendant (second party) to defendants (first party) was collusive and fraudulent; that defendant (second party) never obtained possession either of the land or of the deed of 1890 , and that the defendants (first party) were not bond fide purchasers for value without notice. It accordingly reversed the decision of the first Court and gave the plaintiff a decree.
4. In second appeal it is contended that, inasmuch as the fraudulent purpose for which the colorable transfer of 1890 was effected, was carried out, and the plaintiff's creditors were, thereby defeated, he is precluded now from taking advantage of his own fraud.
5. As authority for this proposition we have been referred to the case of Chenvirappa v. Puttappa I.L.R. 11 Bom. 708, and to a decision of this Court, dated 8th August 1894, in second appeals 987 and 988 of 1893 (ante, p. 962). The facts in the latter case are on all fours with those in the case now before us, and we concur in the principle upon which it was decided.
6. We think that there is a distinction between those cases in which the fraud was only attempted and those in which it was actually carried into effect, and that in the latter class of cases the Court would, by granting relief to the wrong-doer, be making itself a party to the fraud.
7. In this view the appeal must be allowed. The decree of the Lower Appellate Court is reversed, and that of the first Court restored, the plaintiff's suit being dismissed with costs in all Courts.