9911796707
TMI Blog1908 (3) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... known as Government Waste Land No. 1, situate in Tamanaing Circle, Kungyangon Township, Hanthawaddy District, Lower Burma. One Arunachellam Chetty claimed to be an incumbrancer on these lands as equitable mortgagee by deposit of the title deeds for a sum of Rs. 14, 568-12-0, 2. On the 11th June 1895, Chellum Servai executed a deed purporting to be a conveyance on sale of the above-mentioned lands to Petherpermal Chetty the elder, a money lender residing in Rangoon, in consideration of the sum of Rs. 30,000, the receipt whereof was thereby acknowledged. 3. On the 18th September 1895, Arunachellam Chetty, the equitable mortgagee, instituted a suit in the District Court of Hanthawaddy against Chellum Servai, as administrator of the estate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the deed of the 11th June 1895 was executed, Arunachellam Chetty, the creditor, was not by it in fact defrauded of his debt. He was paid his debt together with the costs of the litigation which he successfully prosecuted, and if his interests were prejudiced at all, it was only to the extent that he was obliged to take proceedings which, had the deed never been executed, he might possibly never have been obliged to take. 6. On the 30th July 1897, R. Muniandy Servai and Pethermal the elder executed a deed of release by which the former released all his interest in the lands sued for in consideration of Rs.1,000 paid to him by the latter. The District Judge found; that the execution of this deed was procured by a misrepresentation, and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7th ed., p. 595, para. 446) the result of the authorities on the subject of benami transactions is correctly stated thus :- 446...Where a transaction is once made out to be a mere benami it is evident that the benamidar absolutely disappears from the title. His name is simply an alias for that of the person beneficially interested. The fact that A has assumed the name of B in order to cheat X can be no reason whatever why a court should assist or permit B to cheat A. But is A requires the help of the court to get the estate back into his own possession, or to get the title into his own name, it may be very material to consider whether A has actually cheated X or not. If he has done so by means of his alias, then it has ceased to be a mere m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff, in suing to recover possession of his property, is not carrying out the illegal transaction, but is seeking to put everyone, as far as possible, in the same position as they were in before that transaction was determined upon. It is the defendant who is relying upon the fraud and is seeking to make title to the lands through and by means of it. And despite his anxiety to effect great moral ends, he cannot be permitted to do this. And, further, the purpose of the fraud having not only not been effected, but absolutely defeated, there is nothing to prevent the plaintiff from repudiating the entire transaction, revoking all authority of his confederate to carry out the fraudulent scheme, and recovering possession of his property. The deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As to the point raised on the Indian Limitation Act, 1877, their Lordships are of opinion that the conveyance of the 11th June 1895, being an inoperative instrument, as, in effect, it has been found to be, does not bar the plaintiffs right is recover possession of his land, and that it is unnecessary for him to have it set aside as a preliminary to Ms obtaining the relief he claims. The 144th and not the 91st, article in the second Schedule to the Act is, therefore, that which applies to the case, and the suit has consequently been instituted in time. Their Lordships are, for these reasons, of opinion that the decision appealed from is right and should be affirmed, and that this appeal should be dismissed. They will humbly advise His Maje ..... X X X X Extracts X X X X X X X X Extracts X X X X
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