A Court will not actively interpose in favour of a person who is particeps criminis in an illegal or fraudulent transaction.

Ramaswami, J.

1. This appeal is presented under the Letters Patent from the judgment of Reuben, J. (as he then was) in a second appeal.

2. The plaintiff Bamdeb Das brought the suit on the allegation that he was the 16 annas landlord or a chandna tenancy of which defendant 2 Bhramarbar Choudhuri was the recorded tenant. The plaintiff alleged that Bhramarbar Choudhuri had transferred the holding to his wife Rupai Devi defendant 1, without his consent. The plaintiff claimed that defendant 1 Rupai Devi was holding the land as a trespasser, and that Bhramarbar Choudhuri was liable to be ejected from the holding. The main ground of defence was that the transfer in question was not real but a benami one which was made in order to save the holding from being sold in execution of a decree obtained against Bhramarbar. It was also contended on behalf of the defence that the tenancy was not chandaa at all, but was an occupancy holding which was transferable without the landlords consent. The learned Munsif held that the tenancy was a chandna one and was not transferable without the landlords consent. He further held that defendant 2 Bhramarbar ought not to be permitted to show that the transaction was benami since fraud had been effected in the execution case. He accordingly decreed the suit in favour of the plaintiff. In appeal, the learned Subordinate Judge held that the onus was upon the plaintiff to show that the tenancy was not transferable; and the plaintiff had failed to discharge the onus. He also held that defendant 2 was not estopped from pleading that the transfer was benami. He proceeded to consider the evidence on the point and found that the transfer was, in fact, benami. He accordingly reversed the decree of the learned Munsif and dismissed the suit.

3. In second appeal, Reuben, J. was of the view that the defendants were estopped from raising the plea of benami since they had practised fraud in the execution case and saved the chandna holding from being sold in satisfaction of the decree. The learned Judge further held that there was abandonment of the holding and the plaintiff was entitled to a decree for ejecting the defendants.

4. The questions which arise in this appeal are : 1. Whether the defendants are estopped from pleading the benami nature of the sale deed; and 2, Whether the plaintiff is entitled to re-enter on the chandna holding merely on the ground that defendant 2 had transferred it in the name of his wife without there being any abandonment or repudiation of the tenancy on his part.

5. On behalf of the appellants Mr. K.D. Chatterji made the submission that there was no fraudulent representation made to the plaintiff and there was no proof that the plaintiff acted upon any such representation or that he suffered any loss or damage. It was contended by the learned counsel that no foundation has been laid for invoking the doctrine of estoppel against the defendant Bhramarbar. There is great force in the argument of the learned counsel, but the principle involved in this case is not the principle of estoppel which is enacted in Sec.115, Evidence Act. The principle involved is more important and far-reaching. It is the equitable principle that a Court ought not to interpose actively in favour of a person who is particeps criminis in an illegal or fraudulent transaction. In other words, the doctrine is that no person can claim any right or remedy on the basis or ground that he has been a party to an illegal contract. For instance, a party cannot deliberately put his property out of his control for a fraudulent purpose and then, through the intervention of the Court, regain the same when the fraudulent purpose is accomplished.

In -- Montefiore V/s. Montefiore, ( (1762) 1 Wm B1. 363 (A),) Lord Mansfield, when invited to decide whether a note without consideration given fraudulently to carry on a marriage treaty, shall be good against the drawer, observed that "no man shall set up his own iniquity as a defen