Jhingur Ojha and Others vs Meghnath Pandey

Ross, J.—This is an appeal by the defendants against the decree of the Subordinate Judge of Patna, affirming the decision of the Munsif in a suit brought by the plaintiff for recovery of possession of a 2-annas 3-pies share in a jajmanka brit sold to him by a registered deed on the 27th of February 1914 by the defendant Jhingu Ojha, or, in the alternative, for recovery of Rs. 400, the considration for the sale.

The Courts below have held that the jajmanka brit was not saleable, and consequently the plaintiff could not be given possession but they have given him a decree for Rs. 460 with interest.

Two grounds are urged in second appeal; the first is that when an illegal act has been performed by the parties and one has advanced money to the other on an illegal consideration, he cannot recover it. The second ground is, that the suit is barred by limitation.

In support of the first ground, reference was made to Halsbury''s Laws of England, Volume VII, p. 390 where it is said that "if the illegality of a transaction is brought to the notice of the Court and the person invoking the aid of the Court is himself implicated in the illegality, the Court will not assist him." The decisions in Scott v. Brown (1892) 2 Q.B. 724 : 61 L.J.Q.B. 738 : 4 R. 42 : 67 L.T. 782 : 41 W.R. 116 : 57 J.P. 213 and Gedge v. Royal Exchange Assurance Association (1900) 2 Q.B. 214 : 69 L.J.Q.B. 506 : 82 L.T. 463 : 9 Asp. M.C. 57 : 5 Com. Cas. 229 : 16 T.L.R. 344, were referred to. Now these were both cases of illegal contracts, and the nature of the cases to which the rule applies has been described in the passage in Halsbury referred to above, The text-writer speaks of contracts which are expressly prohibited by Statute, contracts that are illegal at Common Law, as involving the commission of a crime or tort, and contracts which are unlawful as being contrary to public policy; contracts which are not actually unlawful but merely void, either by Statute, such as gaming and wagering contracts or on grounds of public policy, such as contracts in general restraint of trade.

It is quite clear that in the present case the contract is not of this nature. It may not have been effective to transfer the jajmanka brit because of the unsaleable nature of the property, but it is not an illegal contract in the sense of bring contrary to law or morals.

There is nothing in the decision in Hira Pandey v. Bachu Pandey 35 Ind. Cas. 345 : 1 P.L.J. 381 : 2 P.L.W. 390 to support any such contention, while in Sukh Lal v. Bishambhar 37 Ind. Cas. 661 : 39 A. 196 : 15 A.L.J. 41, it was held that there is nothing in law to prevent a Maha Brahmin mortgaging his rights to offerings receivable by him in his professional capcity. I am not concerned with the effect of the transfer but merely with the nature of the act. It seems to me impossible to hold that such a transfer is an illegal contract involving the consequence that no rights can be claimed under it of any kind.

With regard to limitation, the argument is, that as the consideration has wholly failed, this is a suit for money had and received for the use of the plaintiff and, therefore, it is governed by Article 62 of the limitation Act, and consequently time would begin to run from the date of the contract and the suit was barred on the nth September 1918 when it was brought.

Two decisions were referred to in support of this argument, Javerbhai Jorabhai v. Gordhan Narsi 28 Ind. Cas. 442 : 39 B. 358 : 17 Bom. L.R. 259 and Bai Diwali v. Umedbhai Bhulabhai Patel 36 Ind. Cas. 364 : 40 B. 614 : 18 Bom. L.R. 773. These were both cases of mortgages which were illegal under the provisions of the Bhagdari Act, and consequently it was held that the consideration for the mortgage tailed ab initio and the suit must be governed by Article 62. But as I have already held the present contract was not barred by any Statute, and it cannot be said that the consideration wholly failed. The plaintiff having entered into possession of the jajmanka brit and remained in possession until he was dispossessed on the 30th August 1918 by his vendor''s son, time would begirt to run either from that date or from the date on which it was held by the Court that the property had not passed by the sale Bassu Kuar v. Dhum Singh 11 A. 47 : 15 I.A. 211 : 5 Sar. P.C.J. 260 : 12 Ind. Jur. 450 : 6 Ind. Dec. 458. There is a distinct stipulation in the convey. ance that if there was any defect in title, the vendee would be competent to realise the consideration-money with damages. This was a registered instrument and as there was a breach, both of the covenant for title and of the implied covenant for quiet enjoyment, the plaintiff was entitled to bring his suit within six years of the breach. In my opinion the suit was within time and this appeal must fail.

In the last place, it was urged that the question of the liability of the sons of Jhingu Ojha who have been substituted for their father, now deceased, in the present appeal, as between them in their personal capacities and the decree-holder should be left open to be gone into in execution. That question, in my opinion, does not arise. The present appellants have been substituted for their father and they are bound by the result of the appeal.

The appeal is dismissed with costs.