Jagat Narayan, J. - (1.) THIS is a defendant's appeal in a suit for recovery of 110 mds. 6 sesrs 12 ch. barley or in the alternative Rs. 1430/- with costs which was decreed by the Senior Civil Judge, Kishangarh.
(2.) THE case of Hari Bux plaintiff in the plaint was that he and Sugan Chand defendant were friends, that a suit for recovery of money had been brought against him by one Babu Chhipa in Svt. 1984 which was expected to be decreed and he deposited 110 mds. 6 seers. 12 ch. grain belonging to him with the defendant in his godown with a view to prevent it from being taken in execution of the decree which was expected to be passed against him, that he asked the defendant on 29th April, 1950 to return the grain but he refused to do so and consequently he brought this present suit. In the written statement the defendant denied the allegation of the plaintiff. In the alternative he pleaded that even if the plaintiff did deposit grain with him as alleged he did so for defeating his creditors and he was not entitled to a decree. THE learned Civil Judge found that the plaintiff did deposit 110 mds. 6 seers 12 ch. with the defendant. He held that sec. 23 of the Contract Act was not applicable to the present case and the plaintiff was entitled to a decree. He decreed the suit for the price of the grain at 3 seers a rupee. Against this decree the present appeal has been filed. The contention raised on behalf of the defendant before me is that the transaction is hit by sec. 23 of the Contract Act. This argument is clearly untenable. The object of the transaction could be said to be unlawful only if the creditor had been defeated by the transaction. By depositing grain with the defendant the property in the grain was not transferred to him and it was open to the creditor to have got the grain attached in execution of his decree. The creditor was thus not defeated by the transaction. There is evidence on record to show that the plaintiff left Kishangarh after a decree against him had been passed and only returned after the decree had become time-barred. It cannot be said that the creditor was necessarily defeated because of the action of the plaintiff in depositing the grain with the defendant. The depositing of the grain with the defendant certainly made it more difficult for the creditor to trace this property of the plaintiff which he could attach in the execution of his decree. The grain was deposited by the plaintiff with the defendant in the expectation that his creditor will not fee able to trace it and to attach it. This was, however, only a motive of the plaintiff in depositing the grain. It cannot be said to be the object of transaction. The defeating of the creditor was not a direct or necessary consequence of the transaction of deposit. The nexus between the transaction and the defeating of the creditor is remote. The motive of the plaintiff in depositing the grain with the defendant was certainly improper but it cannot be said to be unlawful. A debtor might choose to deposit his money in a bank in far off place in the expectation that his creditor will not be able to trace it. The expectation may or may not be fulfilled. It will be the height of absurdity to hold that it will be open to the Bank to decline to repay the money on the ground that the motive of the debtor in depositing the money with it was an immoral one. The following are some of the decisions in which a distinction is drawn between motive of a person entering into a transaction and the consideration or object of the transaction. Debra Dun E. T. Co. vs. Offl. Liquidators (1) Shahabuddin vs. Venkatachalam Chettiar (2), and Kasbinatb vs. Bapurao{3 ). The principle to be deduced from the above cases is that motive is essentially different from the consideration or object of a transaction and the fact that the contract was entered into in expectation of some ulterior gain would not affect the contract which is valid in everyway. On behalf of the defendant some decisions were cited. They are, however, not applicable to the present case. In Chenvirappa vs. Puttappa (4) and Rangammal vs. Venkatacbari{5) collusive decrees were obtained. When it was sought by a party to the collusive decrees to have them set aside on the ground that they were collusive the court declined to do so on the well established principle of law that when the decree of the court has passed upholding a certain transaction between the parties to a suit neither the plaintiff nor the defendant will be allowed afterwards to say that the decree was the result of a collusive arrangement arrived at by them in order to carry out a scheme of fraud and that, therefore, it should be treated as a nullity, and the state of things which existed previously to the passing of such decree be restored. In Nawab Singh vs. Daljit Singh (6) a fictitious registered sale deed was executed in order to defeat the right of pre-emption and such right was successfully defeated. It was held that the parties were in pari delicto and the Court refused to assist a party to the fraud on the basis of maxims, in pari delicto potior est conditio possidentis (where each party is equally in fault, the law favours him who is actually in possession) and ex turpi causa non oritur actio (no right of action can spring out of an illegal contract ). These maxims have no application to the case of a deposit like the present one. For as has been pointed out above neither party has committed anything which is unlawful. The cause of action does not spring out of an illegal transaction. In Broom's Legal Maxims it is stated - "for the well established test, for determining whether money or property which has been parted with in connection with an illegal transaction can be recovered in a Court of justice, is to ascertain whether the plaintiff, in support of his case, or as part of his cause of action, necessarily relies upon the illegal transaction : if he 'requires aid from the illegal transaction to establish his case', the Court will not entertain his claim. " In the present case although it was mentioned by the plaintiff in his plaint that he deposited the grain with the defendant with a view to saving it from his creditor, it was not necessary for him to rely on this allegation in order to recover the grain. This allegation, therefore, cannot be considered to be a part of his cause of action. Relying on the above passage in Broom's Legal Maxims it was held in Liladhar vs. Sunderlal (7) that where a deposit has been made in connection with an illegal contract such deposit can be recovered by a suit. In Jadu Nath Poddar vs. Rup Lal Poddar (8) the plaintiff against whom several decrees for moneys were outstanding executed a deed of relinquishment in favour of the defendant declaring that the properties belonged to the latter with the object of protecting them from the claim of the decree-holders. The decrees were ultimately set aside in appeal and the plaintiff sued to recover possession of the properties on declaration of his right thereto. It was held that where the intention to commit fraud has not been carried into effect, a beneficial owner is entitled to sue for a declaration that a deed of transfer executed by him is benami and the plaintiff was entitled to recover. In the course of the judgment it was observed that if the creditor is successfully defeated by the transaction then the property cannot be recovered. In case of a fictitious transfer by the debtor of his property the creditor is necessarily defeated as a direct result of the transaction which is accordingly hit by sec. 23 of the Contract Act. Where, however, the illegal purpose for which the property has been transferred is not carried into execution the owner can recover the property in view of the equitable doctrine embodied in sec. 84 of the Trusts Act, 1882, under which the transferee is deemed to hold the property for the benefit of the transferor in such cases. I, therefore, hold that there is nothing in law to prevent the plaintiff from being granted a decree for the price of the grain deposited by him with the defendant. The last contention on behalf of the defendant is that the lower court erred in fixing the price of the grain at 3 seers a rupee. The plaintiff stated that he had calculated the pace of the grain at Rs. 16 per md. He did not say specifically on what date that was the rate of grain. The defendant stated that in December, 1949, the rate of grain was 4 seers a rupee and at the time of giving evidence it was 3 seers a rupee. The learned Civil Judge who gave judgment shortly after the defendant had made his statement calculated the price at 3 seers a rupee on the basis of the statement of the defendant. In this he was not justified. The price is to be calculated at the rate prevailing on 29th April, 1950. There has been a gradual rise in prices in Rajasthan since the formation of the new State. The rate of grain prevalent on 29th April, 1950 works out at 3-2/3 seers a rupee. The price of 110 mds. , 6 seers, 12 chh. , grain is to be calculated at 3-2/3 seers a rupee which comes to Rs. 1,201/13/6. The plaintiff is entitled to a decree for Rs. 1,201/13/6 with proportionate costs. The appeal is accordingly allowed in part and the decree of the trial court is modified. The suit is decreed for 110 mds. , 6 seers, 12 chh. barley or in the alternative for Rs. 1,201/13/6 with proportionate costs. In view, the of the fact that the appeal mostly fails, I direct that the defendant shall pay costs of the appeal to the plaintiff and shall bear his own costs. .;