Judgment

HIDAYATULLAH, J. : This appeal with a certificate granted by the High Court of Patna has been filed against its judgment and decree dated 6-3-1952. By that judgment, the High Court reversed the decree of the Subordinate Judge of Motihari dated 29-3-1946.

2. The suit was filed by the present appellants for a declaration of their title to 136 odd bighas of Ryoti-kasht lands and for possession thereof either exclusively or jointly with the defendants. A claim for mesne profits and interest was also made. The suit was decreed by the Subordinate Judge, Motihari on the ground that the defendants were in possession of the suit lands as benamidars. The trial Judge found that the consideration for the acquisition of these lands had proceeded from the predecessor of the plaintiffs, who had acquired them in the farzi names of Prahlad Rai, Gulraj Rai and Nawrang Rai. He also held that the benamidars were related to Radhumal by marriage, and that Radhumal found it convenient to use their names. These findings were accepted by the present respondents in the High Court. They, however, raised before the High Court certain contentions found against them by the trial Judge. In the plaint, the appellants had given their reasons for acquiring the property benami in the names of Prahlad Rai, Gulraj Rai and Nawrang Rai. They had stated that, according to the terms of the lease, ryoti lands taken in the names of the lessee or his relatives and servants were liable to be resumed by the Bettiah Raj after the termination of the lease, and that the benami transaction was entered into to avoid this contingency. The answering respondents, therefore, contended in the Court of First Instance that the predecessor of the appellants had caused these lands to be settled by the Bettiah Raj benami in their names to effectuate a fraud upon the Bettiah Raj, and the fraud having succeeded, the plaintiffs-appellants were not entitled to a judgment. They also contended that after the termination of the lease of the appellants with the Bettiah Raj these lands were settled or deemed to be settled with them. Both these grounds were accepted by the High Court.

3. In this Court, the respondents have taken the same stand, and have also contended that the acquisition of these lands having been achieved by means of forging the signatures of Prahlad Rai, Gulraj Rai and Nawrang Rai, the present appellants are not entitled to a judgment on the application of the maxim, ex turpi causa non oritur actio. They, however, contend that if it be the view of the Court that both the parties had conspired to deceive the Bettiah Raj or were guilty of illegality, even then, potior est conditio defendantis.

4. By the decisions of the two Courts below and the concession of the respondents, all questions of fact must be taken to be finally decided. The question as to whether the acquisition was benami or not cannot any longer be re-opened, and the case has therefore to be considered only with regard to the principles contained in the maxims above referred to and the fact whether there was any fraud intended on the Bettiah Raj and if so, whether it was effected and who was responsible for it.

5. Though the decision of the case may appear to lie within a very narrow compass, it is necessary to recount rather voluminous facts bearing upon the history of these acquisitions. On 1-4-1922, the manager of the Court of Wards, Bettiah Raj, granted a lease of village Bijbania for 10 years (Asin 1327 to Bhado 1336), vide Ex. 7, to Radhumal, who was the karta of the joint family now represented by the plaintiffs and Mahadeo, respondent 6. On 26-6-1931, the lease was renewed for a further period of 10 years (1337 to 1346). Two of the conditions of this lease will have to be referred to in the sequel, and may conveniently be quoted here for easy reference :

"4. Not to make any settlement of land with a raiyat or other tenant without the consent of the manager, and in any application for such consent to any