JUDGMENT 1. This appeal arises out of a suit brought by the Plaintiff-Respondent to recover possession of certain property on the allegation that it belonged originally to one Durga Das Koer and passed by transfer to Nocur Das whose heirs sold it to the Plaintiff. The Defendants in their defence claimed the property through Durga Das alleging that the transfer to Nocur Das was benami for Durga Das. The first Court found against the plea of benami on the evidence, and it gave the Plaintiff a decree. On appeal by the Defendants, the lower Appellate Court has confirmed that decree, but without coming to any finding upon the question of benami, it being of opinion that it was not open to the Defendants to set up the plea of benami as their predecessor in interest Durga Das had successfully set up the transfer to defraud certain creditors. 2. In second appeal it is contended by the learned vakil for the Defendants-Appellants that the lower Appellate Court is wrong in holding that a Defendant is debarred from pleading that a transaction was benami by reason of his having successfully set up the benami transaction to defraud creditors, and in support of this contention the case of Babaji v. Krishna I. L. R. 18 Bom. 372 (1893) is relied upon. 3. We are of opinion that the Appellant's contention is well founded. It is quite true that where a Plaintiff asks for relief alleging that the transfer upon which the Defendants relied was a benami transaction, he is precluded from alleging the transaction to be benami and obtaining relief if he had successfully set up the benami transaction to defeat or defraud creditors. See the case of Banka Behary Dass v. Raj Kumar Dass I. L. R. 27 Cal. 231 (1899) but the reason of the rule laid down in the case is this, that the Court will refuse relief to a party who seta up his own fraud, and leave matters where they are. The same principle does not hold good where the Defendant in possession seeks to show the real nature of a transaction to defend his possession. 4. The judgment of the lower Appellate Court cannot therefore stand, and the decree made by it will consequently be set aside and the case sent back in order that it may determine the question of benami. 4. The judgment of the lower Appellate Court cannot therefore stand, and the decree made by it will consequently be set aside and the case sent back in order that it may determine the question of benami. As the learned vakil for the Plaintiff-Respondent points out that a further question arises for determination in the case, namely, whether the Plaintiff who is a purchaser from the heirs of Nocur Das, was aware of the benami nature of the transaction by which the property came to stand in the name of Nocur Das or whether he was a purchaser for value from the ostensible owner without any notice of the ostensible owner not being the real owner. 5. The Court of Appeal below will dispose of the appeal after determining this question as well. But as the point was not distinctly raised in the Courts below, it would be open to both parties to adduce evidence upon the question. 6. The costs will abide the result. This judgment will govern appeal from Appellate Decree No. 2258 of 1900.