R.A Jahagirdar, for the appellants. I appear for defendants. It is found by both the lower Courts that plaintiff and defendants were equally guilty of fraud which consisted in defrauding the judgment-debtor of defendants. In such a case the general principle of law to be followed is that when both parties commit fraud and frauds carried out, the Court would not help either party but will allow the property to lie where it was. This principle was not carried into effect in deciding Sidlingappa v. Hirasa and Sayad Nahannu v. Sabanibibi. Sidlingappa's case was doubted in Lakshman v. Vasudev. In the latter case, it was sought to invoke the aid of s. 41 of the Transfer of Property Act on behalf of plaintiff, but it was held that the plaintiff not having proved his own good faith or due inquiry was not entitled to the assistance of the Court. Moreover the earlier rulings of our High Court were not cited nor were they considered in Sidlingappa's case. In Luckmidas Khimji v. Mulji Canji, the defendant was in possession of the property and the plaintiff had come into Court to ask it to aid him in turning his own wrong to his own advantage. The plaintiff's counsel in that case had relied on Deo dem Roberts v. Roberts. The Court held that the parties were in pari delicto and the defendant was entitled to set up the defence that the deeds were colourable, executed for the purpose of screening the property from creditors. So also in Babaji v. Krishna and Honappa v. Narsapa, the Court refused to help the plaintiff discussing the equitable rule in pari delicto potior est conditio possidentis. When fraud is carried out, whether the real owner comes as plaintiff or defendant, the Court will not help either party. This principle was followed in Vilayat Husain v. Misran by the Allahabad High Court, and in this case their Lordships dissented from the decision in Sidlingappa's case. The Lahore High Court also in its Full Bench decision in the case of Quadir Baklish v. Hakam declined to follow Sidlingappa's case in preference to the earlier Bombay rulings. The two English cases on the basis of which Sidlingappa v. Hirasa was decided were discussed at length in the Lahore Full Bench case at pp. 737, 738 and 739. In Petherpermal Chetty v. Muniandi Servai the Privy Council observed as follows: “But where the fraudulent or illegal purpose has actually been effected by means of colourable grant, then the maxim applies in pari delicto potior est conditio possidentis. The Court will help neither party. Let the estate lie where it falls.” We rely on that decision. The Calcutta High Court approved of the view adopted by the Bombay High Court in its earlier decision in the case of Sadu Nath Poddar v. Rup Lal Poddar and held that where the intention to commit fraud has not been carried into effect, a beneficial owner is entitled to sue for a declaration that the deed of transfer executed by him is benami and that the plaintiff is not entitled to recover. The Madras High Court has adopted the view laid down in Sidlingappa's case but on a reference to the decision in Kotayya v. Mahalakshmamma, it will be seen that the High Court was maintaining that view more on the basis of stare decisis.S.R Joshi, for the respondent. I submit that the case of Sidlingappa v. Hirasa is correctly decided.The defendants appealed to the High Court.The appeal came on for hearing before Divatia J. on January 24, 1941, when his Lordship referred it to a full bench of three Judges.Accordingly a full bench consisting of Beaumont C.J, Divatia J. and Macklin J. heard the appeal on February 6, 1941.In Shripadgouda Venkangouda v. Govindgouda Narayangouda our High Court held that where both parties to a suit practise fraud on Court and obtain a collusive decree, it is not open to either of them to impeach the judgment of the Court on the ground that it was collusively procured.The result of the analysis of the case law is that the earlier Bombay decisions, Babaji v. Krishna and Honappa v. Narsappa, followed the principles laid down by the maxim in pari delicto potior est conditio. It was for the first time in Sidlingappa v. Hirasa, it was not followed. The decision in Sidlingappa's case was, however, doubted by our High Court in Lakshman v. Vasudeo and was dissented from in the Allahabad and Lahore castes cited above. It was only in Madras that they stick to the view in Sidlingappa's case, but as pointed out that was on the ground of stare decisis.I submit that plaintiff has not come to Court with clean hands. Both the lower Courts have found that he was a party to fraud. The suit should, therefore, be dismissed.Where a plaintiff can make out his title to the property in dispute on independent evidence, the defendant should not be allowed to defeat such plaintiff by pleading his own fraud. Fraud has been allowed to be pleaded by the defendant only in three class of cases:—(1) where the fraud has not been carried out, (2) where the consideration for the agreement is executory and in a suit by the plaintiff to enforce the performance of the promise, the defendant resists the enforcement by pleading common fraud, (3) where plaintiff seeks to repudiate any illegal transaction after it is carried out and seeks to recover back the money paid under it. The Sidlingappa's case does not fall under any one of them.The judgment in Vilayat Husain v. Misram, mainly relies on two English cases: Taylor v. Chestor and Herman v. Jeuchner. In Taylor v. Chestor the plaintiff had deposited with the defendant the half of a £50 bank note by way of pledge to secure the payment of money due from the plaintiff to the defendant. The debt was contracted for wine and suppers supplied to the plaintiff by the defendant in a brothel kept by her, to be there consumed in a debauch. The plaintiff having brought an action, to recover the half-note, it was held that the maxim, in pari delicto potior est conditio possidentis, applied, and that as the plaintiff could not recover without showing the true character of the deposit, and that being an illegal consideration to which he was himself a party, he was precluded from obtaining the assistance of the law to recover it back. The test laid down in the case is that where a plaintiff cannot succeed without showing the true character of the transaction he cannot succeed. In this case Mullor J. said (p. 314): “The true test for determining whether or not the plaintiff and the defendant were in pari delicto, is by considering whether the plaintiff could make out his case otherwise than through the medium and by the aid of the illegal transaction to Which he was himself a party.” Hence, where the plaintiff comes to the Court with a prima facie title and he is not obliged to plead fraud at all, the principle of in pari delicto does not apply. I submit this case is not inconsistent with Sidlingappa's case and does not support the other side. It was not a case where the plaintiff was obliged to plead his own fraud.In Herman v. Jeuchner the plaintiff had deposited money with the defendant in order to induce the latter to stand surety for him and it was held that he was not entitled to sustain an action to recover back the money, although he had not committed any default and although the defendant had not been compelled to pay the amount for which he had become bound. Brett M.R said (p. 564): “The contract between the plaintiff and the defendant is tainted with illegality. … if the contract is illegal and has been performed, then the person vouching the illegality cannot recover. In this case the illegal purpose has been wholly performed, and therefore the plaintiff cannot recover.” This would fall under class of cases mentioned above.In Raghupati v. Nrisingha the benamidar lost his suit, the fraudulent purpose having been carried out. Mukerji J. observed therein that the authority of Doe dem Roberts v. Roberts was shaken by Prole v. Wiggins. But Doe dem Roberts' case has been cited by Tindal C.J in Prole v. Wiggins and distinguished. In Prole v. Wiggins the suit was to recover money on a bond passed under a contract by which it was intended to defeat certain provisions of a statute. Here the consideration was executory. It falls under cl. 2.The case of Chenvirappa v. Puttappa was followed in Shripadgouda Venkangouda v. Govindgouda Narayangouda with the remark (p. 1190): “The plaintiff (in Chenvirappa's case) could not get the judgment set aside which the defendant had obtained against him by his own contrivance even if the trust was enforceable in his favour for it arose ex turpi causa.” This case is in my favour.The case of Doe dem Roberts v. Roberts is an authority for the proposition that no man can be allowed to allege his own fraud to avoid his own deed. This case was relied upon by Jenkins C.J in Sidlingappa v. Hirasa, which is not inconsistent with Prole v. Wiggins. The full bench case of Qudir Bakhsh v. Hakam relies mainly on Raghupati v. Nrisingha and Vilayat Hussain v. Misran.It is contended on the other side that the early Bombay rulings are not considered in Sidlingappa's case. To take the earliest case, in Luckmidas Khimji v. Mulji Canji, the sole question was whether the Small Causes Court in Bombay had jurisdiction to entertain the case. A suit to recover possession of immoveable property can be brought in the Court of Small Causes only if the defendant is a tenant. As soon as the defendant is shown to be a trespasser the jurisdiction of that Court is ousted. The defendant there was pleading his own title. There is nothing to show that the fraud there was actually carried out. The cases of Chenvirappa v. Puttappa and Shripadgouda Venkangouda v. Govindgouda Narayangouda are in my favour. The plaintiff having allowed a collusive decree to be passed against him was held entitled to recover possession of the property. Chenvirappa's case is in conflict with Raghupati v. Nrisingha. In the case of Babaji v. Krishna there was no finding that fraud was committed; and the case is not inconsistent with Sidlingappa's case, as pointed out in Qadir Bakhsh v. Hakam. Honappa v. Narsapa was a case in which it was the owner of property who sued to recover its possession after the fraud was carried out. Such is not the case here. None of these cases is in conflict with Sidlingappa's case.The case of Doe dem Roberts v. Roberts was relied upon in Sidlingappa's case. According to it, no man can be allowed to plead his own fraud. Abbott C.J said (p. 368): “The plaintiff, at the trial, produced a proper deed of conveyance, and proved its execution, and by that he established his title to the premises. The defendant endeavoured to defeat this, by shewing that the deed was delivered for the fraudulent purpose of giving to the plaintiff a colourable qualification to kill game; but in the case of Montefiori v. Montejiori,(10) Lord Mansfield expressly said, ‘that no man shall set up his own inequity as a defence, any more than as a cause of action.’ Here that is attempted to be done; but the defendant cannot be allowed to be heard upon this matter.” The above case was followed in Phillpotts v. Phillpotts(11) and Bessey v. Windham.(12) It was also followed in Kamayya v. Mamayyas,(13) where Coutts-Trotter J. has reviewed English cases on the point and has pointed out that the case of Doe dem Roberts v. Roberts is not inconsistent with Prole v. Wiggins.(14)The decision in Sidlingappa v. Hirasa does not proceed so much on English cases as on the application of the test of public policy (p. 411).Ram Surun Singh v. Mussamut Pran Peary was not a case in which the defendant was trying to avoid his own deed by pleading his own fraud.The remarks in Lakshman v. Vasudev are obiter. There Sidlingappa's case is only distinguished.The case of Sidlingappa v. Hirasa is treated in this Court as a leading case. It has been consistently followed in subsequent cases: Kondi v. Chunilal, Sabava v. Yamanappa, Krishnarao v. Ghaman, and explained and distinguished in Girdharilal Prayagdatt v. Manikamma: Girdharlal Prayagdatt v. Yeshodabai.It has stood so long. It is not inconsistent with English cases.R.A Jahagirdar, was not called upon in reply.