Judgment S. Ali Ahmad, J. 1. This second appeal has been filed by the defendant first party. The suit was for a declaration that defendant-appellant is only a benamidar of the plaintiff with respect to a house described in schedule into the plaint and further that the plaintiff is not liable for any illegal act of omission and commission committed by the defendant first party with respect to the house in question. The trial court held that the appellant is a Benamidar of the plaintiff with respect to the house in question, but it dismissed the suit on the ground that maxim in pariddicto to poll cast conditio defendanties applied to the facts of this case. On appeal the lower appellate court affirmed the finding that the appellant was the Benamidar of the plaintiff but it allowed the appeal and decreed the suit as in its view the maxim in paridelicto portiorest conditio defendanti has no application to the facts of this case. Thereafter, this second appeal has been filed by the defendant no.1. 2. The case of the plaintiff, shortly stated, was that Lala Baijnath Prasad purchased the disputed house from one Kloda Pd. Chatterji and others by virtue of a sale-deed dated 15th July, 1917. Later Lala Baijnath Pd. transferred the house to Ganga Kuer wife on one Sinheshwar Pd. Advocate by virtue of a registered sale-deed dated 7.3.1930. Ganga Kuer again sold the disputed house to Lala Baijnath Pd. for Rs.2,000 who, according to the plaintiffs case, purchased it in the name of one Laxmi Narain Nagbansi. It is said that lala Baijnath Pd. after the sale in his favour came in possession of the house with which Laxmi Narain Nagbansi had no concern. It is further said that Laxmi Narain Nagbansi executed a Ladavi deed in the year 1949 wherein it was stated that he was the Farzidar of defendant no.1 Durga Pd, it is said that Lala Baijnath Pd. got his deed of Ladavi executed in the name of Durga Pd. who also was his Benamidar and was attached to him and used to learn shopping business. Further according to the plaintiffs case, defendant no.1, i. e. the appellant had no concern with the disputed house, except that he was a Benamidar of Lala Baijnath Pd. A portion of the house was let out on rent to defendant no.3 by Lala Baijnath Pd. Further according to the plaintiffs case, defendant no.1, i. e. the appellant had no concern with the disputed house, except that he was a Benamidar of Lala Baijnath Pd. A portion of the house was let out on rent to defendant no.3 by Lala Baijnath Pd. sometime in the year 1934 on a monthly rental of Rs.23. This defendant no.3 paid rent to Lala baijnath Pd. and after his death to his widow Munaka Kuer and when Munaka kuer died he started paving rent to the plaintiff Further it is said that before munaka Kuer widow of Lala Baijnath Pd. died in the year 1958, she executed a will in favour of the plaintiff, who is the niece of Lala Baijnath Pd. The properties bequeathed under the will included the house in suit. On an application by the plaintiff, probate was also issued in favour of the plaintiff and after that the plaintiff came in possession of the properties covered by the will including the suit house and got her name mutated. Further according to the plaintiff, defendant no.1 who was the Benamidar of Lala Baijnath Pd. executed a deed of mortgage by a conditional sale on 14th November, 1959 in favour of defendant no.2 and again in the year 1960 defendant no.1 filed title Suit No.10!of 1960 against defendant no.3 for his eviction. In that suit, defendant no.1 described himself as the owner of the house. Having come to know of this suit, an application under order 1, rule 10 of the Code of Civil procedure was filed by the plaintiff with a prayer to add her as a defendant to the suit, but that petition was rejected and as such : the plaintiff says she was compelled to file the present suit. 3. Defendant no.1 appeared and contested the suit. His case inter alia was that he purchased the suit house from Ganga Kuer by a sale deed dated 3.12.1941 in the Benami name of Laxmi Narain Nagbansi. It was further said that Lala Baijnath Pd. had absolutely no concern with this purchase. According to him, Lala Baijnath Pd. was declared insolvent by order dated 3.7.1939 and was discharged from insolvency on 4th May, 1950. He, therefore, according to this defendant, could not acquire any property during the period he was insolvent. With regard to the mortgage by conditional sale dated 14th november, 1959. had absolutely no concern with this purchase. According to him, Lala Baijnath Pd. was declared insolvent by order dated 3.7.1939 and was discharged from insolvency on 4th May, 1950. He, therefore, according to this defendant, could not acquire any property during the period he was insolvent. With regard to the mortgage by conditional sale dated 14th november, 1959. It was said that the same was executed as he required some money. The will dated 4th June, 1958 in favour of the plaintiff by the widow of Lala Baijnath Pd. was described as forged and fabricated. 4. Defendant nos.2 and 3 also appeared and filed written statement. Defendant no.2 supported the case of the plaintiff. 5. The trial court, on a consideration of the evidence adduced before it found that Lala Baijnath Pd. was the real purchaser of the house in suit from Ganga Kuer by the sale-deed, dated 3.12.1941 in the Farzi name of Laxmi narain Nagbansi. It also found that the Ladavi deed executed by Laxmi narain Nagbansi in the name of defendant no.1 was also Farzi. On the basis of these two findings the trial court held defendant no.1 to be the Benamidar of the plaintiff. It also held that the plaintiff was in possession of the disputed land. The fact that Lala Baijnath Pd. was insolvent from 3.7.1939 to 4 5.1950 was accepted but the trial court held that the acquisition by the sale deed dated 3.12.1941 was concealed from the insolvency court. It, therefore, held that the maxim in peridelicto portiorest conditio defendanties applied and, as such, the plaintiff had no title to get back the possession of the disputed house. It, therefore, dismissed the suit. 6. On appeal, the learned Second Additional District Judge affirmed the finding that defendant no.1 was a mere Benamidar of Baijnath Pd. and, as such of the plaintiff but it held that the maxim in peridelicto portiorest conditio defendanties did not apply to the facts of this case. It, therefore, allowed the. appeal and decree the suit. 7. Learned counsel did not urge before me that maxim in peridelicto portior est conditio defendanties applied to the fact of this case. On the other hand, he specifically conceded that the trial court was wrong in applying the principle of maxim in peridelicto portio est conditio to defendanties. It, therefore, allowed the. appeal and decree the suit. 7. Learned counsel did not urge before me that maxim in peridelicto portior est conditio defendanties applied to the fact of this case. On the other hand, he specifically conceded that the trial court was wrong in applying the principle of maxim in peridelicto portio est conditio to defendanties. Learned counsel however, urged that the finding that defendant no.1 was the Benamidar of Lala Baijnath Pd. was erroneous in law. In that connection, learned counsel submitted that Exts. N and N/3, depositions of Lala Baijnath Pd. and Braj kishore Pd. defendant no.3 in Title Suit No.187 of 1955 clearly showed that durga Pd had no concern with the house in suit. It appears that Title Suit no.187 of 1955 was filed by defendant no.1 against Brajkishore Pd. defendant no.3 for realisation of rent. In that suit both Lala Baijnath Pd. and Brajkishore pd were witnesses. Their evidence has been marked Exts. N. and N/3. A perusal of their evidence shows that they had stated that the houso was owned by Durga Pd. defendant no.1. Their evidence in that suit, learned counsel for the appellant submitted, amounted to an admission that the house belonged to defendant no.1. In my opinion, the deposition of Lala Baijnath Pd. and brajkishore Pd. in Title Suit No.187 of 1955 cannot be treated as an admission in this case It may be a pie ;e of evidence which has to be considered along with other evidence in record. The courts below, in my opinion, were rights in not treating their deposition as an admission in the case to bind the plaintiff. These two exhibits Exts. N and N/3 have been considered by the courts below along with other evidence on record. It has been observed that Lala Baijnath pd. and Brajkishore Pd. deposed in Title Suit no.187 of 1955 to suit the question for determination in that suit. I do not find anything wrong on this account and I am of the view that these two exhibits have been given due consideration by the courts of fact. 8. Learned counsel next submitted that the present suit was barred by res judicata inasmuch as it has been decided in Title suit no.187 of 1955 that the appellant was the owner of the house. In my view, this argument also has no substance. 8. Learned counsel next submitted that the present suit was barred by res judicata inasmuch as it has been decided in Title suit no.187 of 1955 that the appellant was the owner of the house. In my view, this argument also has no substance. Title Suit no.187 of 1955 was filed by the appellant against Braj Kishore Pd. defendant no.3 for realisation of arrears of rent. The fact in issue therefore, in that suit was as to whether Brajkishore Pd. was the landlord of the. appellant, ownership of the house, in that suit, was in my opinion, not a fact in issue. Further, it appears that the case ended in compromise. For all these reasons, it has been rightly held by the courts below that the suit is not barred by res judicata. 9. Mr. Tara Kant Jha learned counsel for the appellant lastly submitted that Lala Baijnath Pd. was admittedly insolvent between 3.7.1939 and 4.5.1950. He further submitted that it was obligatory on Lala Baijnath Pd. to inform the insolvency court of his acquisition of the suit properties by him during the period of insolvency. That admittedly was not done learned counsel, therefore submitted that ex turpi causa non oriktur actio applied. Hidayatullah J. fas he then was) in the case of Kedar Nath Motani V/s. Prahlad Rai, AIR 1960 sc 213 ) has observed that in applying the maxim, it has to be seen if the illegality goes so much to the root of the matter that the plaintiff cannot bring his action without relying upon the illegal transaction into which he had entered. The learned Judge has further observed that if the illegality be trivial or venial and the plaintiff is not required to rest his case upon that illegality, the public policy demands that the defendant should not be allowed to take advantage of the position In that connection, it has also been said that the plaintiff should not be allowed to circumvent the illegality by resorting to some subterfuge or my mistering the fact. In cases where the illegality is not required to be pleased or proved as part of the cause of action then it has been pointed out in that case that the plea of the defendant should not prevail unless it be of such a gross nature as to outrage the conscience of the court. In cases where the illegality is not required to be pleased or proved as part of the cause of action then it has been pointed out in that case that the plea of the defendant should not prevail unless it be of such a gross nature as to outrage the conscience of the court. In this case, it has been noticed that Lal Baijnath Pd. during the period of his insolvency purchased the house in suit in the Benami name of Laxmi Narain Nagbansi. Laxmi Narain Nagbansi executed a Ladavi deed saying that he was a Benamidar of defendant no.1. The findings of the courts below which has not been challenged before me is that this Ladavi deed also was Benami inasmuch as the appellant Durga Pd. was the Benamidar of Lala Baijnath Pd. No provision of the Provincial Insolvency Act or of any other Act disqualifies an insolvent from acquiring property during the period of his insolvency. All that is required under the Provincial Insolvency Act is that the insolvent should inform the insolvency court of such an acquisition. This admittedly was not done. But the consequence of not informing the insolvency court of such acquisition is not to disentitle the insolvent to retain that property. Therefore, even if Lala baijnath Pd. did not inform the court of the acquisition, the property continued to vest in him. This illegality, therefore, in my opinion, was venial in character. Further appellant was a Benamidar of Lala Baijnath Pd. If the maxim ex turpi causa non orkitur actio is applied in cases of Benami acquisition of property then the Benamidars will get an opportunity to turn dishonest and claim the property themselves because in many cases of Benami transactions the motive is not quite legal. This will certainly not be in the interest of public policy because Benami transaction since long has been accepted to be valid mode of acquisition. The plaintiff in this case did not base here title or cause of action on the illegality but it was brought into picture by the defendant appellant. This illegality was, on the facts of this case, not at all of such a gross nature as to outrage the consciences of the court. The plea of the appellant, therefore, that the maxim ex turpi causa non orkitur actio applies to the facts of this case is unacceptable. 10. This illegality was, on the facts of this case, not at all of such a gross nature as to outrage the consciences of the court. The plea of the appellant, therefore, that the maxim ex turpi causa non orkitur actio applies to the facts of this case is unacceptable. 10. I, therefore, see no merit in this appeal, which is dismissed with costs. Appeal dismissed.