JUDGMENT

Martineau, J. - The plaintiffs in this case sue for possession by right of preemption, of a house which was conveyed by Moti Ram, defendant No. 1 to Radha Kishen and Sohan Lal, defendants Nos. 2 and 3, by a deed dated the 14th June, 1920. The deed is ostensibly a deed of gift, but the plaintiffs contend that the transaction was really a sale.

2. The material facts are as follows:

On the 1st August, 1913, Lal Chand, a creditor of Radha Kishan and Sohan Lal, obtained a decree against them for Rs. 2,748-8-0. On the 4th August, 1913, he took out execution, but on the same date the judgment-debtors executed a deed of sale by which they conveyed the house now in suit and a shop to Moti Ram for Rs. 3,000, and Lal Chand, being thus prevented from getting that property attached and sold in execution of his decree, compromised with his judgment-debtors on the 14th August for Rs. 1,400. The greater part of this sum was obtained from the plaintiffs, to whom the judgment-debtors mortgaged some land, and Moti Ram mortgaged the house in suit.

3. In February, 1920, Moti Ram sold the house back to Radha Kishan and Sohan Lal, and in the following June he executed the deed in dispute, conveying the house to them.

4. The case of the defendant Radha Kishan and Sohan Lal is that the ostensible sale to Moti Ram, effected on the 4th August, 1913, was a fictitious transaction the object of which was to prevent Lal Chand from realizing the amount due under his decree, and that the deed, dated the 14th June, 1920, was executed merely in order to restore the status quo. In other words they contend that the house remained their property throughout and never became the property of Moti Ram. The first Court accepted that contention and dismissed the suit.

5. The District Judge, on appeal, has held that Radha Kishen and Sohan Lal cannot-be allowed to plead their own fraud, that by the fact of their accepting a gift from Moti Ram, they are estopped from pleading that the latter was not the owner of the-property which he gave them, and that they are further estopped by the fact that they redeemed from the plaintiffs the house which Moti Ram had mortgaged.

6. He thus finds that Moti Ram became the owner of the house in 1913, and he concludes that the re-transfer of the house by Moti Ram in 1920 was a sale. He has accordingly set aside the decree of the first Court and remanded the case for a finding, as to the market value of the house and for a final decision. Radha Kishan and Sohan Lal have appealed to this Court.

7. The learned District Judge has not considered whether or not the plaintiffs have proved that the re-transfer by Moti Ram in 1920 was a sale. He thinks that if Moti Ram became the owner of the house by purchase in 1913, the subsequent re-transfer by him must have been a sale, but this conclusion by no means follows. The appellants were Moti Ram's relations and he could have made a gift of the house to them.

8. Further, I think the learned District Judge is wrong in holding that the appellants are not competent to plead that the house never became the property of Moti Ram. He has relied on Dogar Mal v. Jaimat (1892) 38 P.R. 1892, but that was a case in which the party who wished to plead his fraud was the plaintiff, and it is undoubtedly a rule of law 'that a plaintiff is precluded from setting up his own fraud in order to support his claim.' The case of a defendant who is only resisting a claim stands on a different footing.

9. Sidlingappa v. Hirasa (1907) 31 Bom. 405, which is cited by Counsel for the respondents, was a case in which one H, who owned certain property had executed a benami sale-deed, and the benamidar sold the property to the plaintiffs' father. The property was attached in execution of a decree against H, but the attachment was raised at the instance of the plaintiffs' father. Subsequently, the plaintiffs sued to recover possession from H, and it was held that H could not set up his own fraud in answer to the claim.

10. That case i