Authored By : Beverley, L.H. Jenkins

Beverley and L.H. Jenkins, JJ.

1. In July 1890 the plaintiff, in order to defeat hiscreditors, executed a colorable conveyance of 3 bighas 9 cottahs of land infavour of the defendant (second party), but he alleges that he himself retainedpossession 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 thedefendants (first party).

2. In March 1892 the defendants (first party) forciblyreaped the crop on the land, and in a criminal proceeding that followed, weredeclared to be in possession of the land. Plaintiff accordingly brought thissuit to recover possession. The first Court found that the transaction of 1890was a real one and dismissed the suit.

3. The Lower Appellate Court has found that the sale todefendant (second party) in 1890 was a fictitious transaction in which noconsideration passed; that by virtue of it defendant (second party) wassuccessful in preferring a claim to the land which had been attached by theplaintiffs creditors; that the conveyance by the defendant (second party) todefendants (first party) was collusive and fraudulent; that defendant (secondparty) 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 valuewithout notice. It accordingly reversed the decision of the first Court andgave the plaintiff a decree.

4. In second appeal it is contended that, inasmuch as thefraudulent purpose for which the colorable transfer of 1890 was effected, wascarried out, and the plaintiffs creditors were, thereby defeated, he isprecluded now from taking advantage of his own fraud.

5. As authority for this proposition we have been referredto the case of Chenvirappa v. Puttappa I.L.R. 11 Bom. 708, and to a decision ofthis 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 casenow before us, and we concur in the principle upon which it was decided.

6. We think that there is a distinction between those casesin which the fraud was only attempted and those in which it was actuallycarried into effect, and that in the latter class of cases the Court would, bygranting relief to the wrong-doer, be making itself a party to the fraud.

7. In this view the appeal must be allowed. The decree ofthe Lower Appellate Court is reversed, and that of the first Court restored,the plaintiffs suit being dismissed with costs in all Courts.

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Ritu Roy and Ors. vs. Goberdhan Singh and Ors. (07.05.1896 -CALHC)