Madhavan Nair, J.—Defendants 1 to 3 (father and two sons) are the appellants. The suit property originally belonged to the 1st defendant and the 4th defendant had a mortgage over it. From the evidence it appears that a portion of it belonged to one Sitayya Naidu, another son of the 1st defendant, but no such distinction has been made in the suit and it is not necessary to refer to it any further. At a revenue sale on 8th May, 1918, the property was purchased by the 4th defendant for Rs. 762 in the name of his clerk. The case of the appellants is that this purchase by the 4th defendant was benami for themselves, the main object of the benami sale being to defeat an anticipated claim for partition from one Ranganayakulu Naidu, the son of the 1st defendant's brother. Though the property was sold, admittedly the appellants continued in possession; but according to the 4th defendant it was thenceforward as his tenants whereas the appellants contend that it was because the real title vested in them. Later on, 6 acres out of this property were sold by the 4th defendant to the 1st defendant's daughter Chittamma for Rs. 1000. The appellants allege that this sale was for the purpose of reimbursing Chittamma for the money which she lent for the purchase at the auction. Ranganayakulu brought a suit O.S No. 42 of 1922 for partition and recovery of a half share of the family properties. That suit was directed against the present suit property and another 20 acres sold to one Chelamayya. In that suit the contention was raised by the plaintiff that the sale of the suit land to the 4th defendant was benami, but this was denied by the present defendants. After some evidence had been taken in the suit it was compromised on 25th January, 1924, as a result of which Ranganayakulu Naidu received 7 acres, 5 acres of which form portion of the suit property. Subsequently, on 5th August, 1924, the 4th defendant sold the remaining property to the plaintiff for Rs. 4000, under the sale deed Ex. H, and the present suit was instituted by her for recovery of the property from the defendants.

The defendants denied that the 4th defendant had any title to the suit property as it was purchased by her benami for themselves. The Plaintiff disputed the benami purchase contending that the 4th defendant purchased it for himself. It was also contended by the plaintiff that in the circumstances of the case it was not open to defendants 1 to 3 to raise the plea that the property was purchased benami by the 4th defendant. The second issue in the case related to these contentions. The learned District Judge upheld the contention of the appellants that the property was purchased benami for them by the 4th defendant, but he declined to give effect to this finding because he held that the 1st defendant defrauded Ranganayakulu of some portion of the suit property by setting up the false plea that the property belonged to the 4th defendant as a result of the auction purchase. Having been party to a plea of fraud which was successfully carried out, the learned Judge came to the conclusion that it was not open to the defendants to raise the contention that the purchase of property by the 4th defendant at the auction sale was benami for them. It was held in Kamayya v. Mamayya, that a person who has conveyed property benami to another for the purpose of effecting a fraud on his creditors cannot, where the fraud has been effected, set up the benami character of the transaction by way of defence in a suit by the transferee for possession under the conveyance. Following this decision the learned Judge decreed the claim of the plaintiff.

On behalf of the appellants Mr. Somasundaram accepting the finding that the purchase by the 4th defendant was benami for the appellants, argues that no fraud was committed by them in O.S No. 42 by raising the plea that the 4th defendant became the owner of the land by the auction purchase, and that even if a fraud has been committed, since both the 4th defendant and the appellants were parties to the fraud the lower Court should have dismissed the plaintiff's suit. The latter argument raises the question whether Kamayya v. Mamayya was correctly decided. Mr. Raghava Rao on behalf of the respondent, besides supporting the judgment of the lower Court on the ground on which it is based, argues further that the learned Judge should have held that the purchase by the 4th defendant at the revenue sale was not benami for the appellants but it was for himself. Thus the points arising for consideration in this appeal are (1) whether the purchase of the suit property at the revenue auction by the 4th defendant was benami for the appellants; (2) whether by raising the plea that the property was sold to the 4th defendant at the revenue sale the defendants as a matter of fact defrauded Ranganayakulu, the plaintiff in O.S No. 42 of 1922; and (3) whether in the event of our upholding the findings of the District Judge, effect should not be given to the decision in Kamayya v. Mamayya.

Point 1. On this point, as already stated, the learned District Judge after a very detailed and careful consideration of the entire evidence came to the conclusion that the purchase of the property by the 4th defendant was benami for the 1st defendant. We see no reason to differ from his conclusion. The reasons which persuaded him to hold that the purchase was benami are summarized in paragraph 15. The 1st defendant had strong motive to bring about a benami sale, for he wanted to prevent his relative Ranganayakulu from claiming a share in the property. It is true that the 1st defendant's case that his daughter Chittamma supplied Rs. 800 to the 4th defendant for buying the property for which afterwards a portion of it was sold to her, has not been satisfactorily made out; but having regard to Exs. I and I (a), and the other evidence in the case, this failure cannot be treated as fatal to the benami claim urged on his behalf. Exs. I and I (a) are extracts from the 4th defendant's account supplied to the 1st defendant by his clerk. The 4th defendant says that he did not authorise his clerk to furnish these accounts to the 1st defendant, but this story has been rightly disbelieved by the learned District Judge. These extracts show that though the 4th defendant provided the money for the purchase he debited it against the defendants, and, as the District Judge says, “it appears impossible to explain why he should have done this if he had been buying the lands on his own account.” These accounts also show that though the 4th defendant is alleged to have purchased the property for himself, the money due to him on the outstanding mortgage is still kept as a continuing debt. There is a considerable body of evidence to show that the 1st defendant took active part in bringing about the sale in favour of the 4th defendant, that the intending bidders were persuaded to make no bids so that the property may be knocked down in favour of the 4th defendant for a nominal price and, as it happened, he succeeded in buying it for a ridiculously small price. The learned Judge finds that the present value of the property would be about Rs. 13,500. Even assuming that the property had doubled in value since the purchase, and even if we add the mortgage amount together with interest due to the 4th defendant in estimating its true value from his standpoint, the price actually paid, Rs. 762, is ridiculously small. The impression that the property must have been purchased benami gains in strength when we consider the evidence with regard to the actual possession. It is undisputed that the 1st defendant was in possession of the property. The 4th defendant's case is that he was in possession as his tenant. An oral lease in support of his possession is set up by the 4th defendant. The only oral evidence adduced by the 4th defendant in support of this part of his case is that of himself. The entries in his account do not necessarily show that the paddy said to have been delivered by the defendants relate to the landlord's share of this property, for the 4th defendant had his own business and a commission shop run by one of his sons, and the delivery of the paddy might have been, as the defendants say, for sale by him. And to complicate the situation there is a relationship of creditor and debtor also between the parties. As the learned Judge says, “these accounts are compatible with either view of the case.” Then there is the circumstance that the 4th defendant knows nothing of this property, that a tank on it was dug at a cost of Rs. 100 by the 1st defendant; and there is satisfactory evidence that a portion of the property, under an acre, was exchanged by the 1st defendant with one Papigadu (see the evidence of D.W 4 and Ex. D). It is hardly likely that the 4th defendant would have allowed these transactions to take place if he had purchased the property for himself. Considering the evidence as a whole, we are unable to agree with the respondent's contention that the 4th defendant must have purchased the property for himself.

Point 2. On this point also we must accept the learned Judge's conclusion. In his written statement as well as in his evidence the 1st defendant has clearly stated that the motive for bringing about an ostensible sale of the property in favour of the 4th defendant was to prevent Ranganayakulu from claiming a portion of the property. Though he knew that the sale of the property was benami to the 4th defendant, when Ranganayakulu claimed a half share in it in O.S No. 42 of 1922, the defendants pleaded that the sale in favour of the 4th defendant was a genuine sale and not a benami one. Their object clearly was to deprive Ranganayakulu from getting his due share. In his evidence as D.W 4, the 1st defendant distinctly says “I expected Ranganayakulu Naidu to sue me for partition and my son Seethayya Naidu was then leading a bad life. So I got the 4th defendant to buy the property.” In another portion of his evidence he makes the untruth of his plea very clear. He says “I denied the benami nature of the transaction with 4th defendant. In paragraph 11, I stated that the sales to defendants 5, 6 and 7 in that suit were real transactions and not benami for defendants 1 to 4…… That statement was false. I then stated that the suit lands were not in my possession. That is untrue.” It will be remembered that Ranganayakulu claimed 20 acres for his share in O.S No. 42 of 1922 and he compromised the suit by getting for himself only 7 acres, of which 5 acres formed a portion of the suit property. Mr. Somasundaram on behalf of the appellants contends that Ranganayakulu must have compromised the suit because of the difficulty that he must have found in proving that the sale was benami and so he must have thought that instead of spending unnecessarily money on the litigation to prove a difficult claim the best policy was to accept what he must have thought was an adequate share and thus end the litigation. The evidence is not satisfactory to establish this contention. There is some evidence that towards the end of the case the 1st defendant refused to sign the compromise saying that the lands were in the name of the 4th defendant and that he did not like to give the plaintiff any share in it. There is also his evidence that he told the Subordinate Judge that the purchase was benami in the name of the 4th defendant and at that time Ranganayakulu was in Court; but this statement is not corroborated by any other evidence. Assuming as the learned Judge has found (see paragraph 14) that the 1st defendant made a declaration towards the close of the suit that the 4th defendant was only his benamidhar, the evidence does not show that the plaintiff accepted the compromise in spite of this declaration. We cannot say what would have been the exact extent decreed to Ranganayakulu in the absence of the false claim set up by the 4th defendant; but it is a fact that he set up a false claim intending to defraud Ranganayakulu and that the latter had to accept by way of compromise a good deal less than what he claimed in the suit. On the whole, we agree with the learned Judge that the plea of the 1st defendant in O.S No. 42 of 1922 was intended to defraud the plaintiff in that suit and he was without doubt defrauded.

Point 3. The next question is whether it is open to the defendants to plead their own fraud as a defence to the present action. The plaintiff as having purchased the property from the 4th defendant may be treated as being in the same position as the 4th defendant for deciding this point. Mr. Somasundaram argues that the appellants and the 4th defendant having been parties to a fraud which has been carried out, the maxim in pari delicto potior est conditio possidentis will apply and that the plaintiff's suit should be dismissed. But in Kamayya v. Mamayya it has been held that even though the plaintiff may have been a party to the fraud the defendant will not be permitted to plead his own fraud as a defence to an action against him. The test given in the case is that that party must fail who first has to allege the fraud in which he participated. It is clear if we apply this test in this case the appellants must fail. The appellants argue that the decision in Kamayya v. Mamayya is wrong, that it has not been approved of in other Courts and that before deciding this case we must take the opinion of a Full Bench on the question whether Kamayya v. Mamayya, has been correctly decided. In this connection our attention has been invited to the very recent decision in Qadir Bakhsh v. Hakam(2). As may be seen from that judgment, the law seems to have been differently construed in other Courts. But so far as our own Court is concerned, the decision in Kamayya v. Mamayya, has been consistently followed in a series of decisions. Kamayya v. Mamayya, was a decision by Sir John Wallis C.J, and Coutts-Trotter, J., as he then was. This decision was followed by Sir Walter Schwabe, C.J, and Coutts-Trotter, J., in Parthasarathy Reddiar v. Kandaswami Mudaliar(3), and was again followed in Ramaswami Naicker v. Alamelu Ammal(4), by Coutts-Trotter and Ramesam, JJ., Pachayammal v. Devaniammal(5), is the next decision of this Court where Kamayya v. Mamayya, was followed by Waller J. This decision is interesting as in it the view now urged by Mr. Somasundaram was specifically put before the learned Judge and the Calcutta decision in Raghupati v. Nrishingha(6), in support of it was also brought to his notice. The Lahore case had not then been decided Though he was aware that there was a considerable body of authority in favour of the view that the defendant is entitled to show the real nature of the transaction as against a confederate in the fraud, the learned Judge still preferred to follow the decision in Kamayya v. Mamayya as in his view the principle embodied in that decision was more effective in minimising fraud than the other view. In this connection attention may be drawn to the following observations: “The question is one of public policy, and I think that public policy will be best served, by following the rule that a man should not be allowed to plead his own fraud. As Sir Lawrence Jenkins showed in the Bombay case, it is the rule which ‘will be most apt to deter persons from frauds of this kind.’ It is the fraudulent grantor, who expects to extract the entire, or the main benefit from the fraud. And if he realised that the law will give him neither a remedy nor a defence against his confederate, the temptation to commit the fraud will be minimised.” The decision in Kamayya v. Mamayya by the then Chief Justice and himself was followed by Coutts-Trotter, J., after he became Chief Justice in Subbaraya Chetty v. Subbaraya Chetty. Palepu Narayanamurthi v. Komali Chandrayya by Waller J., is the latest decision of this Court on this point. In that case also Kamayya v. Mamayya was followed. Having regard to this strong current of authority in our Court in support of the decision in Kamayya v. Mamayya and the absence of any conflict of views, we do not think we will be justified in referring it for a fresh consideration before a Full Bench. Following Kamayya v. Mamayya we would therefore hold that in the circumstances of the case it is not open to the appellants to plead their own fraud as a defence to the plaintiff's suit.

The appeal therefore fails and must be dismissed with costs. The Government will be entitled to realise their costs from the appellant. The memorandum of objections is for costs only. It is dismissed with costs.

Jackson, J.—I agree that there should be no departure from the rule of law set forth so clearly in Kamayya v. Mamayya. This may involve some divergence from the law as understood in Northern India, but the Madras practice in my opinion accords with what should be the public policy of this Presidency. In fact so far from extending the scope of benamidars, by allowing them first to cheat their victim and then come again into Court with the story that the previous case was false, I should prefer to see benami transactions altogether forbidden, and I consider that this Presidency, whatever may be the condition of the less literate parts of India, is now ripe for such legislative action. The treatment of this question by the Civil Justice Committee of 1924-5 was most unfortunate. All the members of the Committee were agreed as to the evils of the benami system, which it denounced in terms both forcible and true. But three of the members considered that the proposed legislation (preventing any plea short of fraud that the documentary evidence of title is a sham) should not be introduced unless it resulted in the abandonment of the practice within a reasonably short time. Apparently the dissident members envisaged Indians still putting property under fictitious titles and pleading that they had never heard of the new law. Such a fear would be quite groundless in this Presidency, and if that fear were removed, the Committee was prepared unanimously to recommend the abolition of benami transactions. It is unnecessary to detail the advantages of such a measure which are fully set forth in the Committee's report. But apart from the resultant benefits to public morality—restricted scope for perjury when registered documents are regarded as conclusive evidence—restraint upon excessive borrowing in the hope of concealing assets, and restraint upon inordinate rates of interest in the knowledge that assets may be concealed, there is a practical advantage which in these times cannot be ignored. Under the present system a greater number of suits is being admitted than can possibly be decided within a reasonable time; and financial stringency precludes the increase of Courts. The remedy must therefore lie in restricting the field of litigation, and that can best be done by making the creation, assignment or extinction of title still more dependent upon registered documents to the exclusion of oral evidence.

N.R.R Appeal dismissed.