Ivaturi Brahmayya Lingam vs Kamisetti Mallamma alias Kanakamma and Another

Krishnan, J.—In this case the plaintiff sues to recover certain items of property which he conveyed to the 1st defendant under Ex. I. The

finding of the lower Courts is that though a consideration of Rs. 800 is recited in it and it purports to be a sale for that consideration, the transaction

was really one by which the plaintiff made a gift of the property to the 1st defendant for the past co-habitation and for future cohabitation with her

which she promised. The plaintiff is the appellant before me and the contesting defendant is a transferee for value from the 1st defendant. The first

Court decreed the suit in favour of the plaintiff holding that the sale to the 1st defendant by the plaintiff was an invalid transaction as the

consideration was an immoral and illegal one and that the 2nd defendant was a transferee for value, but with notice and was thus not a bona fide,

purchaser. On appeal the Subordinate Judge, though he agreed in the first finding that the consideration for the sale was past and future co-

habitation of the woman with the plaintiff, he held that it was not shown that the and defendant was not a bona fide purchaser and hence he

dismissed the suit against him. In Second Appeal it is contended before me that in deciding the second point the Subordinate Judge has laid the

burden of proof wrongly on the plaintiff and that the 2nd defendant should have been called upon to prove that he was a bona fide purchaser. But

before considering this question it is necessary to decide what plaintiff''s rights are on the finding that the sale deed Ex. I was for past and future co-

habitation. The sale no doubt is invalid, but it is a different question whether any relief should be given to the plaintiff in the circumstances of the

case even as against the 1st defendant. There can be no doubt that if the principles laid down in Ayerst v. Jenkins (1873) LR 16 Eq 27 applies, the

plaintiff cannot set aside this transaction as he was a party to it. The principle of that case was given effect to in a very similar case in Deivanayaga

Padayachi v. Muthu Reddi ILR (1920) M 329, where it is laid down that it is a well-established rule of equity that a person who has transferred a

property to another for an illegal or immoral purpose cannot get it annulled if the intended pur-pose has been carried out. There can be no doubt

that, in the case before me, the purpose has been carried out as part of the consideration was for past co-habitation and the woman continued as a

concubine of the plaintiff for at least six or seven months after the sale deed was executed. On the other side my attention has been drawn to the

ruling in Dasi Muthukannu v. Shanmugavelu Pillai ILR (1905) M 413 where it was laid down that the plaintiff there who was a young and

inexperienced man and assigned to the defendant, a dancing girl, a mortgage for Rs. 1,500 the consideration stated in the deed being payment in

cash and jewels to the plaintiff and the discharge by the defendant of debts due by the plaintiff was entitled to have the assignment set aside on the

ground that no consideration really passed as recited therein but that the real consideration was the future continuance of immoral relations between

himself and the sister of the defendant. The attention of their Lordships was drawn to the case in Ayerst v. Jenkins (1873) LR 16 Eq 27, but their

Lordships were of opinion that the case related only to gifts of property and that the principles laid down by Lord Selborne in it would not apply to

cases of sales and assignments like the one they were dealing with. They were in that case able to hold that the transaction was not a gift but a sale.

Whether that is right or wrong I need not pause to consider and I need not also consider whether their Lordships'' ruling that the case in Ayerst v.

Jenkins (1873) LR 16 Eq 27 should be confined to cases of gifts alone and would not apply to cases of sales and other transfers, should be

followed or not, for, I think that the present case is distinguishable from that case. Here it is perfectly clear that the transaction between the plaintiff

and the 1st defendant was in reality a gift and nothing else. According to the plaintiff the transfer was without any consideration whatsoever arid the

recital of consideration in the document was a false recital. In fact, this case was that he made over the property to the 1st defendant solely in

consideration of her past co-habitation and future co-habitation with him and that it was not intended that he should receive any other consideration

for the transfer. It follows therefore that even the way in which Dasi Muthukannu v. Shanmugavelu Pillai ILR (1920) M 329 distinguishes the case

of Ayerst v. Jenkins (1873) LR 16 Eq 27 is correct, this case fails. The principles recognised in Ayerst v. Jenkins (1873) LR 16 Eq 27 are

followed in the case of Deivanayaga Padayachi v. Muthu Reddi ILR (1920) M 329. In Dasi Muthukannu v. Shanmugavelu Pillai ILR (1905) M

413 it must also be noted that their Lordships do not express a confident opinion but say at page 419 : ""Even if this conclusion that is, the case of

Ayerst v Jenkins (1873) LR 16 Eq 27 is confined to cases of gifts were not right, it must be held that the case of the plaintiff is hardly one in which

he can be said to be in pari delicto."" They were able to arrive at that conclusion on a consideration of the fact that the plaintiff in that case was a

youth of about 20 years of age and that the assignment was brought about by the influence of persons acting in complicity with the defendant and

her sister who led the plaintiff into evil ways. There is no such evidence in this case. The plaintiff is a man of about 30 or 31 and on the facts here it

cannot be said in any way that he was not in pari delicto with the 1st defendant in this transaction. That being so his case even as against the 1st

defendant should have failed. It is not necessary therefore to consider whether if the plaintiff was entitled to succeed against the 1st defendant he

could succeed against the 2nd defendant. The question whether the 2nd defendant was a purchaser for value without notice does not really arise.

The Second Appeal is dismissed with the costs of the 2nd defendant.