1. Having heard the arguments at some length in this appeal, a difficulty presents itself by reason of the omission of the learned District Judge, to give a definite finding on the question involved in issues 2 and 7 viz., "whether the plaintiff was in possession within 12 years prior to suit," and "whether the suit is barred by limitation." There are some observations in the judgment of the District Judge indicating his doubt as to plaintiff's possession and enjoyment. But it is not easy to accept the same as a definite finding of fact, especially when he-was disagreeing with finding of the first Court, that the sale in plaintiff's favour under Ex. A was real and not fraudulent. It is contended by the learned advocate for the appellants, that even if the District Judge's view based on the doctrine of "in pari delioto" as regards the sale deed Ex. A} should prevail, and the defendants am held to be debarred from attacking its validity, it is still open to them to attack the plaintiff's claim on the ground of limitation. In their written statement they have denied the plaintiff's possession since the date of Ex. A and set up the possession of the vendor and; his heirs all along, and pleaded the bar of limitation. The word "adverse" is not prefixed to possession, but in ground No. 9 of the appeal memo in the lower Court it is stated that that enjoyment was adverse and in their own right. A definite-finding on this point has become necessary. The issue will be in the following form:

Whether the plaintiff had been in possession within 12 years before suit, or whether the vendor and his heirs have been in possession and enjoyment for over 12 years after the date of Ex. A, and consequently plaintiff's title, if any, is lost by their adverse possession.

2. The appeal is remitted to the lower appellate Court for a finding on the above issue to be submitted within two months from the date of receipt of record in that Court. Fresh evidence is allowed to be adduced. Parties will be allowed to file their objections to the said finding within ten days after the notice of receipt of the said finding is put up on the notice board of the High Court.

Finding, J.

3. I am directed by the High Court to submit my finding on the following issue, viz., whether the plaintiff had been in possession within 12 years before suit or whether the vendor and his heirs have been in possession and enjoyment for over 12 years after the date of Ex. A, and consequently plaintiffs-title, if any, is lost by their adverse possession. Taking therefore the entire evidence and all the probabilities into consideration, I am satisfied that the plaintiff has proved that he has been in possession of the plaint lands within 12 years before suit and that the defendants have not succeeded in proving that the plaintiff's vendor and his heirs have been in possession and enjoyment for over 12 years after the date of the sale Ex. A and that consequently the plaintiff's title, if any, is lost by their adverse possession. I therefore record a finding in favour of the plaintiff on the issue remitted. (On receiving the finding his Lordship delivered the following) JUDGMENT

4. In pursuance of the order passed in this appeal on 9th September 1932 calling for a finding on an issue, the learned District Judge of Chingleput submitted his finding. Neither side has filed any objection to his finding and I accept it. The appeal was however argued at great length, in respect of a question of law arising on the basis of a finding of fact given by the District Judge in his original judgment, against which this second appeal has been filed. The suit by the plaintiff-respondent was for a declaration of his title to the plaint-mentioned lands and for the issue of a permanent injunction restraining the defendants from obstructing in any manner his enjoyment thereof. The plaintiff's claim was based upon a registered sale deed dated 21st July 1902 and executed by the late Kandappa Naicker in his favour for Rs. 400 (Ex. A). The plea of the defendants was that this sale-deed was a benami and colourable transaction effected with a view to defraud the decree-holder (one Arcot Munusami Mudali) who had obtained a money decree against Kandappa Naioker on a promissory note.

5. The plaintiff's sister Angammal is the wife of Kandappa. The plaintiff's daughter was married to Kandappa's son Kanniappa. Kandappa died about 20 years before this suit and his son also died in 192H without any male issue. The widow and daughter-in-law of Kandappa have been living with the plaintiff. The learned District Judge differing from the finding of the trial Court, held that the sale under Ex. A was a nominal and colourable transaction brought about with the object of defeating and defrauding the decree-holder Munuaami Mudali. Defendant 1 is one of the brothers of Kandappa. The other brothers were the late fathers of defendants 3 and 4. Defendant 2 is the son of defendant 1. According to the finding of the learned District Judge, the sale-deed (Ex. A) was a fraudulent document brought about with the aforesaid object; and to that fraud, both the vendor and his brothers and also the vendee (plaintiff) were parties. On the basis of this finding, he was of opinion, that the defendants could not be heard to say that the sale-dead was a benami and fraudulent document, applying the principle that when both parties are in pari delicto, the person who has to allege the fraud must fail. He mainly relied upon the judgment of Coutts-Trotter, J., (as he then was) in the case reported in Kamayya v. Mamayya A.I.R. 1918 Mad. 365. In that view, he did not think it necessary to take into consideration the question whether the intended fraud had been actually effected or not. Before discussing the case law on this point in order to see whether the view expressed by the District Judge is sound or not, I must observe that in the present case, it is distinctly made out in the evidence that the decree debt due to Munusami Mudali was subsequently paid off and he was not in fact defrauded or defeated. That decree was obtained on a promissory note as already observed.

6. It was executed by Kandappa in favour of Nyna Mudali in consideration of the latter transferring the patta to him. But for some reason or other the transfer of the patta was not effected. Kandappa was contending that the promissory note was therefore devoid of consideration. However, the promissory note was assigned by Nyna Mudali to Munusami Mudali, who thereupon sued Kandappa and obtained a decree (Ex. 5). Kandappa was naturally annoyed, and therefore had recourse to the execution of a benami sale-deed (Ex. A) in favour of his brother-in-law, in order to defraud that decrees-holder. The evidence shows that some time after the execution of this sale-deed, the decree-holder was able to recover his money from Nyna Mudali himself, who as an endorser, would be a surety for the maker (Kandappa). Nyna Mudali himself as D.W. 6 has stated that he paid off that decree debt by selling away his lands at Sandanampattu. Defendant 1 as D.W. 5 states that the decree-holder caught hold of Nyna Mudali for the recovery of his debt. The fact that the decree debt was realised from Nyna Mudali is also distinctly admitted by Angammal (P.W. 2) in her evidence. There is therefore no doubt that the fraudulent object ?with which the sale deed (Ex. A) was brought into existence, as found by the learned District Judge, did not go beyond the stage of intention, and was in fact not effected at all, as the decree holder was paid off by Nyna Mudali as surety. The question for consideration now is whether in the face of these facts, the defendants should be held to be precluded from setting up in their defence the benami and fraudulent character of the sale deed (Ex. A), in order to resist the plaintiff's claim based on that sale-deed for a declaration of his title to the suit properties. The question has come up for the consideration in Very many cases, not only before this High Court, but also in the other High Courts. So far as the cases dealt with by our High Court are concerned, there is a review of the several cases in a very recent judgment of a Division Bench reported in Kottayya Naidu v. Mahalakshmamma A.I.R. 1933 Mad. 457. In the judgment of Madhavan Nair, J., the die turn laid down in Kamayya v. Mamayya A.I.R. 1918 Mad. 365 is stated to be, 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. This principle has been approved on the ground of stare decisis. So far as our High Court is concerned, I am bound to follow the above dictum, though a different opinion has been expressed in Qadir Balishi v. Hakam A.I.R. 1932 Lah. 503.

7. There are two extreme views on this point. One is, that though the contemplated fraud has not been effected, the party who has to allege the fraud as against the other party who is in pari delicto should fail. This is the view taken by Coutts Trotter, C.J., in Nadupi v. Subbaraya Chetti A.I.R. 1926 Mad. 1196. But this view has not been followed in later decisions, vide the judgment of Anantakrishna Ayyar, J., in Venkataratnam v. Venkataswami A.I.R. 1929 Mad. 807, wherein the learned Judge considers the effect of the Privy Council in Pethaperumal Chetty v. Muniyaudi Servai (1908) 35 Cal. 551. The judgment of their Lordships in that case is very instructive. At p. 559, their Lordships have stated the principle as follows:

To enable a fraudulent confederate to retain property transferred to him, in order to effect a fraud, the contemplated fraud must, according, to the authorities, be effected. Then and then alone, does the fraudulent grantor, or giver, lose the right to claim the aid of the law to recover the property he has parted with.

8. The observations in Mayne's Hindu Law on this point have met with the approval of their Lordships. The learned author is of opinion, that if the grantor has not defrauded any one, there can be no reason why the Court should punish his intention by giving his estate away to another whose roguery is even-more complicated than his own. In the face of this clear pronouncement by the-Privy Council, and also in view of a series of decisions of our High Court, I am unable to follow the extreme view, taken by Coutts-Trotter, C.J., in the case in Nadupi v. Subbaraya Chetty A.I.R. 1926 Mad. 1196. The other view seems to be, that even if the contemplated fraud has been effected, it is open to one party to show that the transaction was the result of collusion and fraud of both parties and attack the claim to recover property made by one of the parties to the fraud on the basis-of such a deed. But this view receives no support from the decisions of our High Court.

9. A number of decisions of other High Courts were also cited in the course of the arguments. It is sufficient to refer to the case in Girdharlal Prayagdat v. Manikamma A.I.R. 1914 Bom. 283, and some other cases. In the Bombay case, in spite of the fact that the claim based upon a fraudulent mortgage deed in order to defeat an. attachment was also allowed by the Court, it was held that the mortgagor-was not precluded from showing the real nature of the transaction in a suit filed by the mortgagee on that mortgage bond, because the attaching creditor had not been defrauded, he having been, paid off in the course of the execution of his decree. Mere delay caused to the decree-holder in the recovery of the amount has not been taken to be defrauding the creditor for the purpose of applying the maxim. A Division Bench of the Calcutta High Court in the case reported in Rajani Kanta v. Abani Kanta A.I.R. 1926 Cal. 850, has express, ed this view clearly in the following passage at p. 852:

An intention to delay creditors is not necessarily fraudulent or unlawful. Fraud in respect of creditors involves an element of loss or injury of a substantial character and not merely inconvenience caused by delay in the realisation of what is due.

10. There is no doubt, that in order to constitute fraud, there must be an intention to deceive. There must also be damage to the party deceived and fraud without damage gives no cause of action (vide Kerr on Fraud and Mistake, Edn. 6, p. 3). Applying the aforesaid jtest to the present case, it must be held that inasmuch as the decree-holder Munusami Mudali was subsequently paid land therefore did not sustain any loss or damage, the object with which the sale deed (Ex. A) was found to have been brought into existence, viz., the defrauding of that creditor, has not been carried into effect. Consequently, according to the preponderence of judicial opinion in our High Court, the defendants should not be precluded from raising the plea, that Ex. A was a nominal and fraudulent document. The learned Judge has found the nature of the document to be so, and that finding of fact has to be accepted in second appeal. No declaration of title to the suit properties on the basis of Ex. A can be given in plaintiff's favour. This is what is sought for in the plaint.

11. Mr. M. Section Venkatarama Ayyar, the learned advocate for respondent 1 (plaintiff), made an ingenious attempt to give another turn to the question at issue, by trying to spell out that one of the motives for the sale deed (Ex. A) was to screen those properties from attachment at the instance of the decree-holder Munusami Mudali; and as this object at least has been carried out, he argues, that the fraud has been substantially effectuated so as to preclude the defendants from raising their plea based on the benami or fraudulent character of the sale deed. That is a question of fact. The learned Judge has not found that this was the object. According to his finding, the only object with which the benami sale was effected was to defraud the decree-holder, in other words, to make him lose the money due to him. It is on the strength of that finding the question of law has to be approached. Mr. Venkatarama Ayyar invokes for his aid a fact not found by the learned District Judge, and tries to build a big argument making reference to some decisions. I think it is unnecessary to canvass the bearing of those rulings, as no foundation has been laid in this case for discussing the question, that where a sale was effected in contemplation of two substantial kinds of fraud, one of which was effected and the other not, should the party who has to allege fraud in order to show the invalidity of the transaction, be precluded from doing so? In the result, the second appeal is allowed, and the plaintiff's suit is dismissed, but in the peculiar circumstances of this case, I think the only reasonable order is that the parties should be directed to bear their own costs throughout.