Judgement Appeal from a decree of the Chief Court of Burma (February 2, 1905) affirming a decree of the District Court of Hanthawaddy (March 7, 1904). In 1888 and 1889 the land in suit vested in one Muniandi Maistri and was by him subjected to an equitable mortgage by deposit of its title deeds with a money-lender who on November 28, 1891, assigned his equity to Arunachellam Chetty. Muniandi Maistri died on October 3, 1890, and eventually Chellum Servai and Muniandi Servai became his heirs, the former obtaining in 1894 letters of administration to his estate. On June 11, 1895, Chellum Servai executed to one Petherpermal Chetty, the predecessor of the appellant, the deed of sale of the said land which gave rise to this suit. On September 18 in the same year Arunachellam, the equitable mortgagee, sued to establish his lien and obtained a decree on the finding that on June 11, 1895, Petherpermal Chetty had full notice of the prior equitable mortgage. The Law. Rep. 35 Ind. App. 98 ( 1907- 1908) T. P. Petherpermal Chetty V. R. Muniandi Servai 28 result of the action was that Petherpermal Chetty paid off the claim of the equitable mortgagee with costs. Chellum Servai died in June, 1896, before the decree was finally confirmed on appeal, and thereupon Muniandi Servai, the respondent, became entitled to the land in suit, and sued on July 24, 1901, to recover the same from Petherpermal Chetty, who set up an absolute title under the deed of June, 1895. The main issue in the case was whether the said deed was benami, and, if so, whether the plaintiff was entitled to question its validity as an operative sale. Both Courts found that the deed was not a real transaction, that the respondent was not precluded from asserting his legal rights, and that his suit was not barred by limitation. Upjohn, K.C., and Bailhache, for the appellant, contended, after referring to the evidence as to the benami character of the transaction, that the plaintiff was not entitled, if it was proved or admitted that his predecessor had participated in a fraudulent attempt to cheat his creditor, to set aside his predecessors conveyance and recover the property with which he had parted. Reference was made to Taylor v. Bowers (( 1876) 1 Q. B. D. 291.) ; Kearley v. Thomson (( 1890) 24 Q. B D. 742.); Maynes Hindu Law, 6th ed. s. 441, 7th ed. p. 588; Govinda Kuarv. Lala Kishun Prosad (( 1900) I. L. R. 28 Calc. 370.); Shamlall Mitrav. Amarendronath Bose. (( 1895) I. L. R. 23 Calc. 460.) Before he could recover the land he must first set aside the conveyance, and a suit for that purpose was barred by Act XV. of 1877, Sched. II, art. 91, the period being calculated from the date of the plaintiffs becoming aware in 1896 of the fraud. De Gruyther, for the first respondent, was not heard. The judgment of their Lordships was delivered by LORD ATKINSON. In this case an action was originally brought by R. Muniandi Servai, claiming through his deceased brother Chellum Servai, who was himself heir and administrator of one Muniandi Maistri, against T. P. Petherpermal Chetty, the under and predecessor of the appellant (hereinafter called Petherpermal the elder), and two formal defendants, R. M. A. R. L. Muthia Chetty and P. R. M. P. Chinnia Chetty, to recover possession of a certain tract of paddy land about 2500 acres in extent, known as Government Waste Land No. 1, situate in Tamanaing Circle, Kungyangon Township, Hanthawaddy District, Lower Burma. One Arunachellam Chetty claimed to be an incumbrancer on these lands as equitable mortgagee by deposit of the title deeds for a sum of Rs.14,568 12. On June 11, 1895, Chellum Servai executed a deed purporting to be a conveyance on sale of the above-mentioned lands to Petherpermal Chetty the elder, a money-lender residing in Rangoon, in consideration of the sum of Rs.30,000, the receipt whereof was thereby acknowledged. On September 18, 1895, Arunachellam Chetty, the equitable mortgagee, instituted a suit in the District Court of Hantha-waddy against Chellum Servai, as administrator of the estate of Muniandi Maistri, deceased. and Petherpermal the elder, in which he alleged that at the time of the execution of the above-mentioned conveyance Petherpermal the elder was aware of the existence of his (Arunachellams) claim as equitable mortgagee, and that the sum of Rs. 30,000, the consideration mentioned in the deed, had never been paid, and claimed that he might be declared entitled to hold his Law. Rep. 35 Ind. App. 30,000, the consideration mentioned in the deed, had never been paid, and claimed that he might be declared entitled to hold his Law. Rep. 35 Ind. App. 98 ( 1907- 1908) T. P. Petherpermal Chetty V. R. Muniandi Servai 29 equitable mortgage over these lands in priority to the last-mentioned conveyance, and that the defendant Chellum Servai might be ordered to pay to him the sum of Rs.14,568 12. with interest, and other relief. Petherpermal the elder filed his defence, and, the case having come on for hearing, the District Judge decided, amongst other things, that Petherpermal the elder was, at the date of the deed of conveyance to him, well aware of the existence of this equitable mortgage, and declared that the latter was entitled to priority over the former, and ordered the defendant Chellum Servai to pay to the plaintiff the amount of the latters claim. Thereupon Petherpermal the elder procured a loan from the two formal defendants to the present suit sufficient to enable him to discharge the amount due to Arunachellam Chetty for debt and costs, and as security for this loan he executed a mortgage of the lands now sought to be recovered. No question has been raised as to the validity of this latter incumbrance. It is therefore clear that, whatever may have been the design to effect which the deed of June 11, 1895, was executed, Arunachellam Chetty, the creditor, was not by it in fact defrauded of his debt. He was paid his debt together with the costs of the litigation which he successfully prosecuted, and if his interests were prejudiced at all, it was only to the extent that he was obliged to take proceedings which, had the deed never been executed, he might possibly never have been obliged to take. On July 30, 1897, R. Muniandi Servai and Petherpermal the elder executed a deed of release by which the former released all his interest in the lands sued for in consideration of Rs.1000 paid to him by the latter. The District Judge found that the execution of this deed was procured by a misrepresentation, and declared that its only effect at law was as a receipt for the sum of Rs. 1000. No objection was taken in the argument on the appeal in reference to the finding on this point. The District Judge found that the execution of this deed was procured by a misrepresentation, and declared that its only effect at law was as a receipt for the sum of Rs. 1000. No objection was taken in the argument on the appeal in reference to the finding on this point. It was proved by the affirmation of Muniandi Servai, given in evidence in this case, that the deed of June 11, 1895, was executed in order to enable the rent to be collected and paid to the grantors, and " to quash Subramanians case," i.e., the case of the equitable mortgagee. The District Judge held that it was " a benami conveyance " made by the parties to it "in collusion to defeat " the claim of the equitable mortgagee on the lands. The Chief Court of Burma on appeal upheld that decision. It was not pressed in argument by counsel on behalf of the appellant that, on an issue of fact such as this, the finding of the judge who tried the case and saw the witnesses, approved, as it was, upon appeal, should under the circumstances of the case be disturbed. The only questions, therefore, for their Lordships decision are 1. 1. Is the plaintiff, despite his participation in this fraudulent attempt to defeat his creditor, entitled to recover the possession of the lands purported to be conveyed? 2. 2. Is his right of action barred by the 91st article of Schedule II. to the Indian Limitation Act ? Their Lordships are of opinion that their answer to the first question must be in the affirmative. A benami conveyance is not intended to be an operative instrument. In Maynes Hindu Law (7th ed. p. 595, para. 446) the result of the authorities on the subject of benami transactions is correctly stated thus " 446.....Where a transaction is once made out to be a mere benami it is evident that the benamidar absolutely disappears from the title. His name is simply Law. Rep. 35 Ind. App. 98 ( 1907- 1908) T. P. Petherpermal Chetty V. R. Muniandi Servai 30 an alias for that of the person beneficially interested. His name is simply Law. Rep. 35 Ind. App. 98 ( 1907- 1908) T. P. Petherpermal Chetty V. R. Muniandi Servai 30 an alias for that of the person beneficially interested. The fact that A. has assumed the name of B. in order to cheat X. can be no reason whatever why a Court should assist or permit B. to cheat A. But if A. requires the help of the Court to get the estate back into his own possession, or to get the title into his own name, it may be very material to consider whether A. has actually cheated X. or not. If he has done so by means of his alias, then it has ceased to be a mere mask, and has become a reality. It may be very proper for a Court to say that it will not allow him to resume the individuality which he has once cast off in order to defraud others. If, however, he has not defrauded any one, there can be no reason why the Court should punish his intention by giving his estate away to B., whose roguery is even more complicated than his own. This appears to be the principle of the English decisions. For instance, persons have been allowed to recover proper by which they had assigned away .... where they had intended to defraud creditors, who, in fact, were never injured.....But where the fraudulent or illegal purpose has actually been effected by means of the colourable grant, then the maxim applies. ‘In paridelicto potiorest conditio possidentis. The Court will help neither party. ‘”Let the estate lie where it falls. " Notwithstanding this, it is contended on behalf of the appellant that so much confusion would be imported into the law if the maxim In pari delicto potior est conditio possidentis were not rigorously applied to this case, and, apparently, that the cause of commercial morality would be so much prejudiced if debtors who desired to defraud their creditors were not deterred from trusting knaves like the defendant, that in the interest of the public good, as it were, he ought to be permitted to keep for himself the property into the possession of which he was so un-righteously and unwisely put. The answer to that is that the plaintiff, in suing to recover possession of his property, is not carrying out the illegal trans-action, but is seeking to put every one, as far as possible, in the same position as they were in before that transaction was deter-mined upon. It is the defendant who is relying upon the fraud and is seeking to make title to the lands through and by means of it; and, despite his anxiety to effect great moral ends, he cannot be permitted to do this. And, further, the purpose of the fraud having not only not been effected, but absolutely defeated, there is nothing to prevent the plaintiff from repudiating the entire transaction, revoking all authority of his confederate to carry out the fraudulent scheme, and recovering possession of his property. The decision of the Court of Appeal in Taylor v. Bowers (1 Q. B. D. 291.) and the authorities upon which that decision is based clearly establish this. Symes v. Hughes (( 1870) L. R. 9 Eq. 475. at p. 479.) and In re Great Berlin Steamhoat Co. (( 1884) 26 Ch. D. 616.) are to the same effect. And the authority of these decisions, as applied to a case like the present, is not, in their Lordships opinion, shaken by the observations of Fry L.J. in Kearley v. Thomson. (24 Q. B. D. 742.) Mr. Upjohn contended that where there is a fraudulent arrangement to defeat creditors, such as was entered into in this case, if anything be done or any step be taken to carry out the arrangement, such as, on the trial of an indictment for conspiracy, would amount to a good overt act of the conspiracy, any property transferred by the debtor to his co-conspirator cannot be recovered back. This, however, is obviously not the law. In conspiracy the concert or agreement of the two minds is the offence, the overt act is but the outward and visible evidence of it. Very often the overt act is but one of the many steps necessary to the accomplishment of the illegal purpose, and may, in itself, be comparatively insignificant and harmless; but to enable a fraudulent confederate to retain property transferred to him in order to effect a fraud the contemplated fraud must, according to the authorities, be effected. Very often the overt act is but one of the many steps necessary to the accomplishment of the illegal purpose, and may, in itself, be comparatively insignificant and harmless; but to enable a fraudulent confederate to retain property transferred to him in order to effect a fraud the contemplated fraud must, according to the authorities, be effected. Then, and then alone, does the fraudulent grantor, or giver, lose the right to claim the aid of the law to recover the property he has parted with. As to the point raised on the Indian Limitation Act, 1877, their Lordships are of opinion that the conveyance of June 11, 1895, being an inoperative instrument, as, in effect, it has been Law. Rep. 35 Ind. App. 98 ( 1907- 1908) T. P. Petherpermal Chetty V. R. Muniandi Servai 31 found to be, does not bar the plaintiffs right to recover possession of his land, and that it is unnecessary for him to have it set aside as a preliminary to his obtaining the relief he claims. The 144th, and not the 91st, article in the Second Schedule to the Act is, therefore, that which applies to the case, and the suit has consequently been instituted in time. Their Lordships are, for these reasons, of opinion that the decision appealed from is right and should be affirmed, and that this appeal should be dismissed. They will humbly advise His Majesty accordingly. The appellant will pay the costs of the appeal.