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Report No. 57

4.14. Position where illegal purpose not carried out.-

The privy council1 dealt with the question why the maximum in pari delico should not be applied, where the illegal purpose is not carried out, in these words:

"The answer to that is that the plaintiff, in suing to recover possession of his property, is not carrying out the illegal transaction, but is seeking to put everyone, as far as possible, in the same position as they were in before that transaction was determined upon. It is the defendant who is relying upon the fraud, and is seeking to make a 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, therefore, 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 confederates to carry out the fraudulent scheme, and recovering possession of his property."

1. Petherpermal Chetty v. Muniandy Seervai, 1908 ILR 35 Cal 550 (558, 559) (PC).

4.15. In a Calcutta case, Bachawat J. stated the position thus.1 In Indian law the transfer claiming that the transfer is void may sue to recover the property on the strength of his original title, and, in general, he may be given relief though he is particeps criminis, in the following cases:

(a) Where his case falls within one of the three exceptions recognised by section 84 of the Indian Trusts Act,-or

(b) (i) Where public interest or the interest of third parties requires that the relief should be given, or (ii) where denial of the relief may defeat a legal prohibition, or (iii) where the transaction is such that it ought to be allowed to stand on grounds of public policy.

"Relief may be given upon such terms as the justice of the case may require."

[Section 84 of the Indian Trusts Act recognises three exceptions to the rule denying relief to a particeps criminis. Where the owner of the property transfers it to another for an illegal purpose, the transferee must hold the property for the benefit of the transferor if (a) the illegal purpose is not carried into execution, or (b) the transferor is not as guilty as the transferee, or (c) the effect of permitting the transferee to retain the property might be to defeat the provisions of any law. The transferor is prima facie entitled to recover the property from the transferee if his case falls within one of these three exceptions.]

1. Pranballav v. Tulsibala Dassi, AIR 1958 Cal 713 (725), para. 114.

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