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TMI Blog2019 (9) TMI 1724X X X X Extracts X X X X X X X X Extracts X X X X ..... egal representatives in the appellate courts since deceased. The wife and daughter of Anjanappa, who was another son of Venkataramanappa are the Defendant Nos. 2 & 3 to the suit respectively. The daughter and wife of Bale Venkataramanappa are Defendant Nos. 4 & 5 to the suit respectively. The R.S.A. No. 1925/2008 is filed by the original Defendant Nos. 4 & 5, who are daughter and wife of Bale Venkataramanappa. The R.S.A. No. 1834/2008 has been filed by the legal representatives of the original Defendant No. 1, M.V. Nagaraj and the original Defendant Nos. 2 & 3, who are wife and daughter of Anjanappa. The suit was filed inter alia contending that the Defendants did not come forward to execute the sale deed in respect of the agreement to sell. After the notice was issued by the Civil Judge (Junior Division) & JMFC, Hoskote, the Defendants appeared before the Court. However, they did not file the written statement. The power of attorney holder of the Plaintiff is examined as PW-1. The Plaintiff also examined two witnesses in support of his case, i.e., PW-2 and PW-3. He produced documentary evidence Exhibits P-1 to P-34 in support of his case. The Defendants did not cross-examine the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not to have framed such an issue. It further observed that, though in the suit for specific performance of contract it was necessary to frame the issue with regard to readiness and willingness of the Plaintiff to perform his part of the contract along with other issues, neither the trial court nor the first appellate court had framed such an issue. According to the High Court, in the absence of the Defendants neither filing the written statement nor contesting the suit, the finding as recorded by the first appellate court was correct in law. The High Court concurred with the finding of the first appellate court that since the entire amount was received by Bale Venkataramanappa, father of Defendant No. 1, and also from the recital of the agreement to sell, it was clear that the possession was also handed over. As such, the High Court held that the finding of the first appellate court was correct. Being aggrieved thereby, Defendants have approached this Court. 6. Mr. Shailesh Madiyal, learned Counsel appearing on behalf of the Defendants (Appellants herein), submitted that in view of the provisions of Section 61 of the Reforms Act, the predecessor-in-interest of the Defendants, i.e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 15.05.1990 in favour of the Plaintiff. The agreement to sell recites that he was in need of money for his legal necessities and to repay his hand loans and for his domestic needs and, therefore, he had agreed to sell the suit property for a sum of Rs. 46,000/-. He acknowledges the receipt of entire amount of consideration, i.e., Rs. 46,000/-. The recital in the agreement to sell reads that at the time of execution of the agreement, the possession of the suit property is handed over to the Plaintiff. Further, the recital reads that the Plaintiff shall take the consent of the officers of the Tribunal or the concerned officers at his own cost for transferring the property in the name of the Plaintiff. 9. It could thus be seen that, initially the property was mortgaged on 23.04.1990, and within a period of one month the agreement to sell is executed. At the time of the agreement itself, the entire consideration amount is said to have been received by Bale Venkataramanappa and also the possession is handed over to the Plaintiff. 10. It appears, that there were also parallel proceedings before the revenue authorities. After the death of Bale Venkataramanappa, the Plaintiff filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking default in payment of such loan in accordance with the terms and conditions on which such loan was granted, it shall be lawful to cause his interest in the land to be attached and sold and the proceeds to be utilised in the payment of such loan. Explanation.-For the purpose of this Sub-section, "Higher Studies" means the further studies after Pre-university Examination or 12th Standard Examination conducted by CBSE or ICSE or any Diploma courses. (3) Any transfer or partition of land in contravention of Sub-section (1) shall be invalid and such land shall vest in the State Government free from all encumbrances and shall be disposed in accordance with the provisions of Section 77. 13. A perusal of the said provision would clearly show that, notwithstanding anything contained in any law, no land of which the occupancy has been granted to any person under the said Chapter shall, within 15 years from the date of the final order passed by the Tribunal Under Sub-section (4) or Sub-section (5) or Sub-section (5-A) of Section 48-A of the Reforms Act be transferred by sale, gift, exchange, mortgage, lease or assignment. However, the land may be partitioned among members of the ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnecessary to trouble them. Inasmuch, as the matter was brought to the notice of the Assistant Manager of the Court of Wards, all these facts were capable of being investigated, including the making of the signatures by Radhumal. No doubt, the making of the signatures of another person without his consent, express or implied, is an offence under the ordinary law, but the intention was not so much to forge the signatures but to present the application in the names of those persons. However it be, we proceed on the assumption that there was some illegality committed by Radhumal in approaching the Bettiah Raj and also in the execution of the B.H. forms, which were also signed with the names of these persons. The question is whether this illegality is sufficient to non-suit the Plaintiffs on the application of the maxim. 12. The law was stated as far back as 1775 by Lord Mansfield in Holman v. Johnson, (1775) 1 Cowp 341, 343: 98 ER 1120, 1121, in the following words: The principle of public policy is this; ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the Plaintiff's own stating or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 25 All 639. 14. Recently, the Court of Appeal in Bowmakers Ltd. v. Barnet Instruments, Ld. (1945) 1 KB 65] reviewed the law on the subject, and laid down that every illegality did not entitle the Court to refuse a judgment to a Plaintiff. Du Parcq, L.J., observed as follows: In our opinion, a man's right to possess his own chattels will as a general Rule be enforced against one who, without any claim of right, is detaining them, or has converted them to his own use, even though it may appear either from the pleadings, or in the course of the trial, that the chattels in question came into the Defendant's possession by reason of an illegal contract between himself and the Plaintiff, provided that the Plaintiff does not seek, and is not forced, either to found his claim on the illegal contract or to plead its illegality in order to support his claim. We are aware that Prof. Hamson has criticised this case in (1949) 10 Cambridge Law Journal, 249, and has forborne its application, except in the clearest possible circumstances. The law has been also considered by Pritchard, J., in Bigos v. Bousted (1951) 1 All ER 92, where all the authorities are referred to. 15. The three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider the issue with regard to applicability of the aforesaid two maxims. This Court speaking through P.B. Gajendragadkar, J. (as His Lordship then was) observed thus: 12. Reported decisions bearing on this question show that consideration of this problem often gives rise to what may be described as a battle of legal maxims. The Appellants emphasised that the doctrine which is preeminently applicable to the present case is ex dolo malo non oritur actio or ex turpi causa non oritur actio. In other words, they contended that the right of action cannot arise out of fraud or out of transgression of law; and according to them it is necessary in such a case that possession should rest where it lies in pari delicto potior est conditio possidentis; where each party is equally in fraud the law favours him who is actually in possession, or where both parties are equally guilty the estate will lie where it falls. On the other hand, Respondent 1 argues that the proper maxim to apply is nemo allegans suam turpitudinum audiendum est, whoever has first to plead turpitudinum should fail; that party fails who first has to allege fraud in which he participated. In other words, the principle invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsistent with public interest. 14. On the other hand, if the Court decides to allow the plea of fraud to be raised the Court would be in a position to hold an enquiry on the point and determine whether it is a case of mutual fraud and whether the fraud intended by both the parties has been effectively carried out. If it is found that both the parties are equally guilty and that the fraud intended by them has been carried out the position would be that the party raising the defence is not asking the Court's assistance in any active manner; all that the defence suggests is that a confederate in fraud should not be permitted to obtain a decree from the Court because the document of title on which the claim is based really conveys no title at all. It is true that as a result of permitting Respondent 2 and the Appellants to prove their plea they would incidentally be assisted in retaining their possession; but this assistance is of a purely passive character and all that the Court is doing in effect is that on the facts proved it proposes to allow possession to rest where it lies. It appears to us that this latter course is less injurious to public interest than the former. 18. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble qualification to kill game. The document was as against the parties to it valid and so sufficient to support an ejectment for the premises". In dealing with the question raised Bayley, J. observed "by the production of the deed, the Plaintiff established a prima facie title; and we cannot allow the Defendant to be heard in a court of justice to say that his own deed is to be avoided by his own fraud;" and Holroyd, J. added that "a deed may be avoided on the ground of fraud, but then the objection must come from a person neither party nor privy to it, for no man can allege his own fraud in order to invalidate his own deed. 20. This decision has, however, been commented on by Taylor in his Law of Evidence. According to Taylor "it seems now clearly settled that a party is not estopped by his deed from avoiding it by proving that it was executed for a fraudulent, illegal or immoral purpose [Taylor's "Law of Evidence", Vol. 11th, Edn. p. 97, para 93]". The learned author then refers to the case of Roberts, 106 ER 401 and adds "in the subsequent case of Prole v. Wiggins, (1837) 3 Bing. NC 235 : 6 LJCP 2 : 43 R.R. 621, Sir Nicholas Tindal observed that this decision rested on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of defence, yet the court itself, upon the illegality appearing upon the evidence, will take notice of it, and will dismiss the action ex turpi causa non oritur actio. It has been held, that no polluted hand shall touch the pure fountain of justice. It has further been held, that where parties are concerned in illegal agreements or other transactions, courts of equity following the Rule of law as to participators in common crime will not interpose to grant any relief, acting upon the maxim in pari delicto potior est conditio defendetis et possidentis. 21. In the case of Nathu Prasad v. Ranchhod Prasad and Ors. (1969) 3 SCC 11 the three-Judge Bench of this Court had an occasion to consider somewhat similar provisions which read thus: 2. Section 73 of the Revenue Administration and Ryotwari Land Revenue and Tenancy Act, Samvat 2007 (Act No. 66 of 1950) provides: No Pakka tenant shall sub-let for any period whatsoever any land comprised in his holdings except in the cases provided for in Section 74. Explanation.-- * * *. Section 74 deals with sub-letting by disabled persons. Since the Plaintiff is not a disabled person, the Section need not be read. Section 75 provides: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en, that the transaction was nothing short of a transfer of property. Under Section 61 of the Reforms Act, there is a complete prohibition on such mortgage or transfer for a period of 15 years from the date of grant. Sub-section (1) of Section 61 of the Reforms Act begins with a non-obstante clause. It is thus clear that, the unambiguous legislative intent is that no such mortgage, transfer, sale etc. would be permitted for a period of 15 years from the date of grant. Undisputedly, even according to the Plaintiff, the grant is of the year 1983, as such, the transfer in question in the year 1990 is beyond any doubt within the prohibited period of 15 years. Sub-section (3) of Section 61 of the Reforms Act makes the legislative intent very clear. It provides, that any transfer in violation of Sub-section (1) shall be invalid and it also provides for the consequence for such invalid transaction. 24. Undisputedly, both, the predecessor-in-title of the Defendant(s) as well as the Plaintiff, are confederates in this illegality. Both, the Plaintiff and the predecessor-in-title of the Defendant(s) can be said to be equally responsible for violation of law. 25. However, the ticklish questi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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