MOHAMADU MARIKAR v. IBRAHIM NAINA

045-NLR-NLR-V-13-MOHAMADU-MARIKAR-v.-IBRAHIM-NAINA.pdf


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Present: Mr, Justice Middleton and Mr. Justice Grenier.Feb. 22,1919
MOHAMADU MARIKAR v. IBRAHIM NAINA.
D. C., Puttalam, 2,068.
Conveyanceofland to defendanttodefraud thirdparties—No fraud
effected—Action by plaintiff for cancellation of deed.
Plaintiff intendingtodefraud thirdparties, bywhom he expected
that hewouldbe sued in respect of a certain land,executedwithout
consideration a deed of conveyance, by which he purported to4transfer the landtoone MarikarPulle. Thecontemplatedfraud
was not effected, as no actionwasinstituted bythe third parties.
Plaintiffthensued MarikarPolio's administratorfor a declaration
that thedeedof conveyancewas null and void.
Held, that plaintiff was entitled to succeed.
T
HE facts of this case are fully set out in the following judg-ment of the learned District Judge (T. W. Roberts, Esq.).
[The issues are set out in the judgment of Middleton J.]
The plaintiff in October, 1907, conveyed to the defendant's intestatetheland, which is the subject of this case,by deed oftransfer No..9,909.
In this case he impugns that deed oh the grounds of fraud and want ofconsideration.Heavers thatdefendant's intestate,MarikarPulle,
was his agent in charge of some of his business and lands, and persuadedhim by aliethat certain personsweredisputing theplaintiff's title to
this land,midso induced him totemporarily conveyto Marikar Pulle,
inorder that the task oflitigation might be moreconvenientlycarried
through by Marikar Pulle, apd that plaintiff might avoid the necessaryjourneys to Court from his distant village in Kalpitiya. Defendant deniesthe alleged misrepresentation in to to, and avers that the conveyance wubfor value received.
I have no hesitation in finding for the plaintiff on the fifth and seventhissues. As to the fifth issue, it is apparent that Marikar Pulle, in hisnumerous dealings with Caruppen Chetty and Mr. Muttukumaru, neverconducted himself as anything other than the plain and simple agent ofthe plaintiff.
On the seventh issue, too, the evidence of Ponniah and the taxreceipts together indicate that possession of the land in actual fact neverwent with die deed of 1907. Admittedly, Marikar Pulle possessed theland as agent for plaintiff, as he had done for years. But he does notappear to have ever held himself out as owner. He never whispered aword of this transfer to his neighbour Ponniah, whom he had frequentoccasion to see. And for his payments of taxes on account of this land,.
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Feb 22,1910
MohamaduMarikar v./ IbrahimNaina
he continued toreceive receiptsin favourof plaintiff. For such pay-
ments he must have known that he would in the course of his agencyhave to accountto plaintiff,towhom hedelivered these receipts. Yet,
in spite of the conveyance, he continued to accept those receipts in thename ofanotherperson. Andhe continued to leave the original title
deed, viz., theGrown grant, inthe possessionof the plaintiff. Taking
this into consideration, I conclude that he never obtained possession.
I will next consider the allegations of fraud and want of consideration.
I accordingly find that there was no fraud on the part of MarikarPulle.
/
On the third issue, however, I find that there was no consideration,and no cause ofa reasonablesort. It -is clear i in the firstplace, that
Marikar Pulle was almost a pauper.
In the next place, the fact that the deed did not carry independentpossessionwith itindicates thatit was no genuine conveyance.
Taken. together, these facts confirm the plaintiff's statement that no'consideration passed, in spite of the recital in the deed.
In theabsenceboth of fraudand' of consideration, what wasthe reason
for this conveyance? I think theanswer, or,rather, the clue to it, will
be found in theendorsementon1the Growngrant to the effect that the
plaintiff's intestate had sold one-third of the land to certain persons.
Now, those are the persons whom, according to plaintiff, Marikar Palisdescribed asabout todisputetheplaintiff's title. Iamofopinionthat
they diddisputeit, add thatthis conveyance was a benamitransaction
intended to make litigation possible, and at the same time to conceal fromthose claimants the admissionoftheir claim, which stands out dear and
unmistakable on the back of that grant from the Grown.
That is whythe Crown grantwas allegedtobe lost, and why the
plaintiff is,nevertheless, abletoproduce it. Doubtless,itremained in
his possession all along.
In itself thattransaction was not a fraud,itwas the stepping stone
to a fraud,the firstlink inthechain that wouldnot be completeuntil
Marikar Pulle had brought action and fought it out on the footing thatthe Crown grant waslost. But no case followed infact.
I find then, on the third .and fourth issues, that the consideration hasfailed and the conveyance is void.
The learned District Judge entered judgment for the plaintiff.
The defendant appealed.
Walter Pereira, K G., S.-G. (with him Soerts), for the appellant.—On the findings of the District Judge the plaintiff ought to succeed.The plaintiff was guilty of fraud. The Roman-Dutch Law, whichapplies to this case, does not grant any relief to a person in theposition of the plaintiff (see 2 Nathan 339; 2 Nathan 568; 3Maasdorp 67; Voet 41, I, 42). Even under the English Law the
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plaintiff cannot succeed, as he does not come into Court with cleanhands; there is nothing to show that plaintiff had repented andrepudiated the transaction before he brought the action. On theother hand, the Judge holds that plaintiff had come into Court withan entirely false story. Counsel referred to De Silva Cassim,1Symes v. Hughes,a Groves v. Groves* Brackenbury v. Brackenbury/Pollock on Contracts 379-380 (7th edition),
Sampayo, K.C., for the respondent.—No fraud has been carriedout by the plaintiff. The mere fact that plaintiff had a fraudulentintention would not preclude him from obtaining the relief he asksfor (see Petherpermal Chetty v. Muniandy Servai et al,5). Counselalso relied on De Silva v- Gassim and Symes v. Hughes.
Walter Pereira, K.G.t in reply-—In any event the plaintiff canonly sue for a re-transfer.
Our. adv. vult.
February 22, 1910. Middleton J.—
This was an appeal against a judgment declaring a deed ofconveyance of immovable property, No: 2,909, dated October 14.1907, made in favour of the defendant’s intestate, Marikar Pulle,by the plaintiff, to be null and void, and directing the same to becancelled.
The plaint alleged a fraudulent representation to the plaintiffby the deceased, by means of which plaintiff was induced to convey.The answer denied this, and alleged purchase for valuable consider-ation, claimed in reconvention a declaration of title in favour of thedefendant, damages, and costs.
The plaintiff filed a replication denying that there was anyconsideration for the deed, and the following issues were settled andagreed to:—
Was the deed of transfer No.. 2,909 of October 14, 1907,
executed in the circumstances set out in paragraph 3 of
the plaint?
If so, is it thereby invalid?
Was there consideration for the deed, or not, and was there
no good cause for its execution?
If there was neither cause nor consideration, was that deed
thereby invalidated?
Did Marikar Pulle obtain possession of the land under the
deed No. 2,909 or at any time?
Damages.
Was Marikar Pulle an agent managing the plaintiff’s estate?
1 {1903) 7 N. L. B. 230.* (1829) 3 Y. <fc. J. 163.
1 (1870) L. B. 9 Eq. 47S.* (1820) 2J.&W. 391.
* 8 AH. L. J. 290.
Feb. 22,1910
MohamaduMarikar v.IbrahimNaina
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Feb. 22,1910
MiDDIjETON
J.
MohamaduMarikar v.IbrahimNaina
The District Judge found that there was no fraud on the part ofMarikar Pulle alone, no consideration, and no cause of a reasonablesort for the deed; that Marikar Pulle was the agent of the plaintiff,and that he had possession of the land, not in virtue of the deed,but as agent; and that the purchase wa6 a benami one with a viewto conceal from certain claimants to a portion of the land, anadmission of their claim on .plaintiff’s title deed. He further foundthat the transaction was the stepping stone to a fraud, but not afraud in itself and gave judgment for the plaintiff without costs-The defendant appealed*
The first point taken by the learned Solicitor-General was that, asthe District Judge had found against the plaintiff on the first issue,judgment ought to have been in favour of the defendant on thepleadings. This point, however, was not pressed upon us, counselfor the plaintiff drawing attention to the fourth issue, which, in myopinion, is broad enough to sustain the case relied on for the plain-tiff. The Solicitor-General, however, strongly contended that underthe Roman-Dutch Law the plaintiff was not entitled to the relief hehad obtained, and even if the rigour of the Roman-Dutch Law weremodified by development on the lines of the English cases, yetplaintiff will be entitled to no relief unless he comes into Court withclean hand6 by reason of repentance before action brought, and hecited 3 Maasdorp 67, 2 Nathan 568, 1 Nathan 339, De Silva v.Cassim,l Symes v. Hughes,3 Groves v. Groves,* Pollock on Contracts379-380 (7th edition), and Brackenbury v. Brackenbury *
The learned counsel for the plaintiff contended that this was acase in which the equity of the English Law of Chancery might wellbe applied to develop and soften the austerity of the Roman-Dutchsystem, and quoted Petherpermal Chetty v. Muniandy Servai et al.frelying also on Symes v. Hugos and Dc Silva v. Cassim, ubi supra.
This is in effect an action for restitutio in integrum, and the actionwill not lie where both parties have been guilty of fraud (Maasdorp,vol. III., 67, quoting Voet 4, 3, 8, and 44, 4, 2); Nathan also (vol 1I-,668, 569) quote? the case of St. Marc v. Harvey,* where it was heldthat where both parties to a contract act fraudulently, the one has noremedy against the other upon breach of the contract or upon suchcircumstances as would ordinarily found an action for damages.
Nathan (vol. II., 339) enunciated the principle that a sale ofimmovables coram lege' loci, even if in fraud of creditors, will as betweenthe vendor and vendee be deemed valid. Pollock (p. 379) states therule of English Law, that money or property paid or delivered underan unlawful agreement cannot be recovered back, subject to certainexceptions on the principle of in pari delicto potior est condiciodefendentis He subsequently (p. 3$d) cites the rule giving as one
1 (1903) 7 N. L. R. 230.4 {1820) 2. J <£? W. 391.
* (1870) L. R. 9 Eq. 475* 5 AU. L. J. 290.
(1829) 3 Y.&J. 163.• 10 S. C. 267.
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of the qualifications being necessary, “unless nothing has been Feb.22,l$i0done in the execution of the unlawful purpose beyond the payment Mn>^^0Kor delivery itself, ’’ adding interrogatively, as possibly bis own j,fcheory, " and the agreement is not positively criminal or immoral? ”
(Tappenden v. Randall*). There is no question here to my mind as juaribarv.to the immorality of the agreement which the parties entered into,even if it was not criminal, as it involved the suppression of evidencewith a view to cheat a third party out of his title.
In Symes v. Hughes, as Pollock says, the plaintiff was suing ineffect as a trustee for his creditors, so that the real question waswhether the fraud upon the creditors should be .continued againstthe better mind of the debtor himself (Pollock on Contracts 384).
In Groves v- Groves, ubi supra, it was held that the Court would notassist a party in getting back an estate conveyed by him for anillegal purpose, so as to enable the grantee to vote at an election orsit in Parliament, even though it had not been used for the illegalpurpose. Brackenbury v. Brackenbury, ubi supra, was a case inwhich the same principle was followed.
Are we then here to assist the plaintiff, who has shown no signs ofrepentance or repudiation, but who came to Court with a false storyas -regards Marikar Pulle’s share in the transaction?
In Palyart v. Lekie* it was held that the action to recover backmoney paid under an unlawful agreement by a party who had notgiven previous notice that he repudiates the agreement and claimsthe money back could not be maintained. See also Ayerst v.
Jenkins.*
Under the Boman*Dutch Law he would not be entitled to anyrelief, and I have some doubt if this is a case to which should beapplied the doctrine of equity derived from the English Law tosoften the rigour of the Boman-Dutch Law. I have after somedifficulty obtained the report of the case relied on by Mr. de Sampayoin the Allahabad Law Journal.
In that case a debtor transferred his property to evade recoveryon it by an equitable mortgagee. The equitable mortgagee gotjudgment against both his debtor and the. benami transferee, whopaid up the sum due. The debtor sued the benami transferee torecover possession of the property. The Privy Council held thatthe plaintiff was entitled to recover possession of the property “ ashe was not carrying out the illegal transaction, but seeking to putevery one as far as possible in the same position as they were inbefore the benami transaction was determined on, and it was thedefendant who was relying upon the fraud and was seeking to maketitle to the lands through and by means of it, and despite his anxietyto effect great moral ends be cannot be permitted to do this
1 (1801) 2 B. A. P. 467.
* (1873) L. R. 16 Eq. 275.
* (1817) 6 M. AS. 290.
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Feb. 22,191Q To enable a fraudulent confederate to retain property, transferredMiddleton I*™ °rder to effect a fraud, the contemplated fraud accordingJ. to the authorities must have been effected. Then and then alone didMohamadu fraudulent grantor or giver lose the right to claim the aid of theMarikarv. law to recover the property he has parted with* '*
. The present case differs somewhat from the Indian one in thefacts. Here the plaintiff set up a false case with a view to therecovery of his property, and his confederate, Marikar Pulle, is dead,and his administrator is supporting an apparently rightful title tothe properly on behalf of the heirs in virtue of a notarial transferpurporting to be for valuable consideration* It is true that thecontemplated fraud has not been effected, and that the possessionand the title. deed are with the plaintiff. The Koman-Dutch Lawlays down as an important principle that no person shall be enrichedat the expense of another, and Mayne's Hindu Law, 7th edition,p. 295, paragraph 446, quoted with approval in the Privy Councilcase treating of benami transactions, says, if A (the transferor inbenami) has not defrauded any one, there can be no reason why theCourt should punish his intention by giving his estate away to B,whose roguery is even more complicated than his own. I think,therefore, upon full consideration, that the judgment of the DistrictJudge must stand, and this appeal be dismissed with costs.
Grenier J.—
■ , I am entirely of the same opinion, and would dismiss the appealwith costs.
Appeal dismissed-
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