Deivanayaga Padayachi vs Muthu Reddi and Others

Abdur Rahim, J.—There can be no doubt that the settlement as it is called, Ex. B, was made with the object and in consideration of the

donee cohabiting with the settler. This can be plainly inferred from the terms of the document itself. The plaintiffs who are usufructuary mortgagees

of the property obtained the mortgage from the donee, Sadachi Ammal. The 1st defendant who is the appellant before us is the settler. His case is

that the settlement or transfer to Sadachi having been made for immoral consideration, the transaction is void altogether and the plaintiffs can have

no title under the mortgage executed by Sadachi Ammal.

The facts are that this woman was kept by the 1st defendant, who made a gift of the property to her with the object that she should continue to

be his mistress. She did in fact remain in his keeping and lived with him as contemplated by Ex. B. and to that extent therefore the immoral purpose

which the donor had in view was attained. It is well established that when a transaction is entered into for an unlawlul or immoral purpose and that

purpose has been achieved, the Court would not interfere at the instance of the particeps criminis to relieve him from the legal effect of the

transaction. In the decided cases it is well settled that a person who entered into such a transaction is estopped from disputing the nature of the

transaction if the immoral purpose for which it was entered into has been carried out.

The leading authority on the law on this subject is the case of Ayerst v. Jenkins (1873) 16 Eq. C. 275 . The entire law is elaborately discussed in

the judgment which was delivered by Lord Selborne, L. C. for the Master of the Rolls and he sums up the propositions which are established by

the authorities at p. 282. Then he proceeds to point out the distinction between cases of executory contracts and executed contracts. He says ""In

the present case relief is sought by the representative not merely of a particeps criminis but of a voluntary and sole donor on the naked ground of

the illegality of his own intention and purpose; and that not against a bond or covenant or other obligation resting in fieri but against a completed

transfer of specific chattels, by which the legal estate in those chattels was absolutely vested in trustees, ten years before the bill was filed, for the

sole benefit of the defendant."" He states further on "" But the voluntary gift of part of his own property by one pa-rticips criminis to another, is in

itself neither fraudulent nor prohibited by law, and the present is not the case of a man repenting of an immoral purpose before it is too late and

seeking to recall, while the object is yet unaccomplished, a gift intended as a bribe to iniquity. If public policy is opposed (as it is) to vice and

immorality it is no less true as was said by Lord Truro in Benyon v. Nettlefold 3 Mac and G. 102 that the law in sanctioning the defence of

particeps criminis"" does so ""on the grounds of public policy, viz., that those who violate (he law must not apply to the law for protection."" Then

referring to a dictum of Lord Chancellor Campbell in Coulson v. Allison 2 D.F. and J. 525 and a decree of Vice-Chancellor Stuart in Wootten v.

Wootten he observes that ""It may be that the door of this Court is not closed against persons repenting of such unlawful connection and desirous of

extricating themselves from fetters which, if relief were refused, might practically bind them to it."" The case referred to here is one of mutual

settlement made on the occasion of a fictitious marriage, and the observation in this part of the judgment applies to cases of executed transfers for

an unlawful purpose in which the Court will interfere to relieve the transferor but only when the unlawful or immoral purpose had not been

accomplished and the transferor repents of his action in time. The law as propounded here has been followed in India in many cases but it is

sufficient to refer to only some of them Sidlingappa v. Hirasa I.L.R.(1907) 31 Bom. 405 Petherperumal Chetty v. Muniandy Servai I.L.R.(1903)

Cal. 551 Ram Sarup v. Kishan Lal ILR (1907) All 327 Thasi Muthukannu v. Shanmughavelu Pillai ILR (1905) Mad. 413 and Tayaramma v.

Sifaramaswami Naidu 10 M.L.J. 214.

It is however argued by the learned pleader for the appellant that Section 6 - Clause (h) of the amended Transfer of Property Act has made a

difference in law in this country. That section says that ""no transfer can be made for an unlawful object or consideration within the meaning of

Section 23 of the Indian Contract Act. The argument based on this clause is that the transfer for such an object or consideration is ipso facto void

and therefore the transferor can come to Court and ask its assistance in getting back the property. I do not think that such a far reaching effect as

the annulling of an established rule of law as laid down in Ayerst v. Jenkins 16 Eq. 275 and followed consistently in the Indian Courts could have

been intended by this clause. It may be pointed out here that so far as the amendment goes, that is the changing of the words "" Illegal purpose "" into

Unlawful object "", its sole object was to amend the law on a minor point with respect to an actionable claim. It would have been far from the

object of the legislature to think of modifying the well-established rules of equity as propounded in Ayerst v. Jenkins 16 Eq. 275 by an indirect

amendment of this nature. However that may be, the words of this clause do not necessarily bear out the extreme contention of the appellant. That

clause does not lay down in what classes of cases the Court will or will not assist a person "" particeps criminis."" All that it says is that a transfer for

an unlawful consideration cannot be made. The language is certainly not very happy ; but all that was intended was that the Court will not enforce a

transfer which would have the effect of carrying out its unlawful object. That is quite cosistent with the well-established doctrine of law already

referred to. But we do not see that a further inference can be drawn that a person who made such a transfer for immoral consideration and who

has achieved his object by the transfer can say now "" I have achieved my unlawful and immoral object: the Court must give me back the property.

That would be going directly against the policy which this very clause seeks to enunciate. We must overrule this contention and the appeal must be

dismissed with costs.

Oldfield, J.

I agree and only desire to notice one of the grounds for the lower appellate court''s decision. The lower appellate court held that the suit

document was executed'' in consideration of future cohabitation between the first defendant and 2nd defendant, but it went on to hold that such an

agreement was not for an immoral purpose because concubinage is not usually regarded as immoral in the caste to which the parties belong. We

do not think that that is a proper test. It is not suggested by the Lower Court that there is any question of concubinage in this caste being regarded

as equivalent to marriage, and no reason has been shown why we should so regard it. The lower court was not at liberty to rely on the sentiment of

one section of the community as decisive with reference to a matter of ordinary morality. On such a matter, the law must have regard to the sense

of the community as a whole.