Raghuber Das Mahant vs Raja Nataber Singh

Sir Thomas Fredrick Dawson Miller, Kt., C.J.—This is an appeal from a decision of the District Judge of Sambalpur, dated the 21st November 19(sic)7, affirming a decision of the Subordinate Judge, dated the 4th July 1917. The plaintiff who is the respondent in this suit, brings an action to recover back a sum of Rs. 5,000 paid to the defendant, in consideration of an agreement by the defendant, who was the spiritual Guru of the Rani Sahib of Kauria, to bring about the adoption by that lady of one of the plaintiff''s sons. The contract which was entered into between the parties is in the nature of a receipt for Rs. 5,000 signed by the defendant. After acknowledging the receipt of the money the defendant agrees within two months to cause one or other of the plaintiff''s sons, whichever he shall desire, to be adopted by the Rani of Kauria and after bringing about the adoption to cause a written intimation about it to be sent to Government as well as to the plaintiff, and then it provides if he fails in this then the defendant shall refund the entire amount of Rs. 5,000.

It in important to note at the outset that the cause of action upon which the plaintiff''s claim is based is a breach of this contract itself. He refers in his plaint to the contract and to the stipulation as to re payment of the Rs. 5,000 in the event of failure to bring about the adoption. The plaintiff then goes on to say that the defendant failed to fulfill the work undertaken by him for which he had received the money and, therefore, be became liable to return the money, the stipulated time having expired and he farther states that he has several times applied for the return of the money but the defendant has refused to part with it. Then he served him with notice and he relies upon that breach of the contract whereby the defendant undertook either to bring about the adoption within two months or to return the money as his cause of action.

The defence put forward by the defendant was that he never received the money at all and that he never agreed to get either of the plaintiff''s sons adopted or to refund the money in case of failure. He does Bay, however, that the plaintiff re-quested him to use his influence as spiritual guide of the Rant to induce her to adopt one of his sons but that he declined to do so and in the alternative there is a plea that the contract relied upon by the plaintiff was void as being immoral and opposed to public policy and that no suit would lie to enforce snob a contract. It was found as a fact in both Courts below that the contract was entered into by the defendant.

It was contended at the trial by the plaintiff first of all that this contract was not an illegal or immoral contract or one opposed to public policy. That question was decided against him by both the learned Subordinate Judge and the District Judge of Sambalpur. Before this Court it has been but faintly argued. As to this, I do not think I can do better than refer to that part of the judgment of the Subordinate Judge which deals with this question. I think be puts it very clearly. After staling in his judgment that an agreement tending to create an interest against duty is opposed to public policy, he goes on in this way:--

To see whether the object in this case was opposed to public policy two things are to be considered. In the first place an adoption by a Hindu, female should only be made for the spiritual benefit of her husband and she should only choose such a boy as is best fitted for the purpose, unfettered by any pressure from outside. That being the case, any attempt made to fetter her choice in any way must be considered to be opposed to the spirit of Hindu Law and also opposed to public policy. In the second place, it is to be home in mind that in the present case the defendant is her Guru whose duty it is to give her good and impartial advice. That being the case, the acceptance of money by that Guru even to plead any particular cause must place the latter in a false position. His personal interest in this case would be so to advise his chela as to secure to him the enjoyment of the benefit. That being the case, the payment of money to the Guru for that purpose is sure to tend to create an interest in the matter that is opposed to his duty, and, as such, a contract which has this for its object is opposed to public policy.

I entirely agree with that statement of the case put forward by the Subordinate Judge and I think in the particular facts of this case that one may go even farther. In the latter part of his judgment the Subordinate Judge says that he has no doubt in his mind that the object of the agreement was illegal, immoral and opposed to public policy and that as such the agreement was void and it does seem to me that to pay a sum of money to the priest and spiritual adviser of the lady in order to bring about an adoption of a particular person is, to put it quite shortly, a matter of bribery and an attempt to corrupt the spiritual adviser to use his influence to do something which is entirely contrary to his duty.

Having decided, however, that this was a contract opposed to public policy, both the learned Judges of the Courts below came to the conclusion that although they were very lath to do so, they were really hound by certain decisions of the Courts in this country to permit the plaintiff to recover back the money and the way the case was put on behalf of the plaintiff and accepted by the Judges of the lower Courts was this: that where money is paid for an illegal purpose, which is not countenanced by law or which is contrary to public policy, then at any time before the object for which the money is paid is carried out, although the Courts will not assist either party in enforcing performance of the contract, nevertheless they will assist the person who has paid the money to recover it back. There are no doubt cases which have been referred to which support the proposition. Most of the cases in this country are oases of what in England would be called marriage brokerage contracts where money is paid to the parent or guardian of a boy or girl in order to bring about a marriage between the boy or girl and the girl or boy of the person paying the money. In the case of Ram Chand Sen Vs. Audaito Sen and Srinath Sen, the Chief Justice Sir Richard Garth, although in fact he was not satisfied that the contract there was a contract contrary to public policy, did lay down the rule that even if it were so, in a case of that kind the money could be recovered back at any time before the consideration for the payment of that money had been performed. It was not necessary in the facts of that case to go so far, because it was not held that the contract was, as I have said, contrary to public policy, but that case has been the foundation for a series of other cases in this country and I think it is too late now to question the validity and propriety of those rulings. At the same time it must be pointed out that in more than one case it has also been clearly stated that if the contract involves anything in the nature of criminality or is one of moral turpitude such as the Courts on that ground would refuse to enforce, then not only will the Court refuse to enforce the contract but it will not assist either party to recover back anything paid under the contract. It is not always easy to say what cases do come under that description, but that the rule does exist in this country I do not think can be questioned. In the case of Bakshi Das v. Nadu Das 1 C.L.J. 261 decided by Mr. Justice Mukherjee the proposition is laid down that although a Court may not enforce an agreement to pay money to the parents or guardian of an intended bride or bridegroom on the ground that the agreement is opposed to public policy, yet a suit is maintainable for the recovery of any sum actually paid pursuant to the agreement, if the contract is broken and the marriage does not take place. But in a latter case, Ledu, Coachman Vs. Hira Lal Bose, ., the same learned Judge qualifies that general proposition in these word?:

We are not unmindful that there are exceptions to the general rule that money paid or personal property transferred in accordance with the terms of an illegal contract cannot he recovered, notwithstanding the other party refuses to affirm his part if the agreement. It is plain that although where money has been paid under an unlawful agreement, but nothing else done in performance of it, the money may be recovered back, yet this exception will not be allowed if the agreement is actually criminal or immoral.

In this case the principle is clearly laid down that the Courts of this country will not assist a party, even though the contract has not been performed, to recover back his money paid in respect of a contract which is tainted with criminality or immorality.

It seems to me, therefore, that the only question which we have to consider is whether in the particular circumstances of this case one must come to the conclusion that this is merely that class of contract which the Court refuses to enforces on the ground that it is contrary to public policy, such as gaming and wagering contracts or certain classes of marriage brokerage contracts, or whether there is not something more in this case which taints it from the beginning with something in the nature of criminality or moral turpitude. Speaking for myself, it seems to me that this is just one of that'' class of oases which the Court will refuse to have anything to do with at all, because it is in my view a grossly immoral act to endeavour to bribe a priest to use his spiritual influence with his chela in the interests of the person bribing him and if the plaintiff comes and asks us to assist him in any way in carrying out the terms of such a contract or to recover back money paid under it, I think the Court ought to refuse.

There is only one other matter which I should like to draw attention to. This is not, as the action is framed, one of those cases where the plaintiff has sought to repudiate the contract before it has been performed and claims to recover back the money paid for an illegal performance before the mischief has been done, because from the manner in which the claim is framed in the plaint the plaintiff is clearly claiming, after the time for performance has elapsed, something in the nature of damages for failure to perform the contract. The damage has been estimated at the amount which he paid and which the defendant stipulated to pay him back in the event of his failure. It is for a breach of one of the stipulations in that contract that the plaintiff is now suing and he has not up to the present time purported to repudiate the contract and recover back the money on the ground that the contract was illegal or contrary to public policy ab initio. So far as the plaintiff and the defendant themselves are concerned, I can see little or no distinction as to the part which each of them took in this transaction. To my mind it was one of gross immorality. I think both of them are equally to blame and there is nothing to choose between them. In this view of the case it seems to me that the decision of the Court below which was come to with some reluctance by the learned District Judge, must be set aside and that the appeal must be allowed and judgment entered for the defendant. But in the circumstances of the case we do not think that any order ought to be made as to costs.

Reginald Roe, J.

I agree. I am satisfied that no distinction can be made between an agreement to bring about a marriage and an agreement to bring about an adoption and after reading the decision in the case of Hermann v. Charlesworth (1905) 2 K.B. 123 : 74 L.J.K.B. 620 : 93 L.T. 284 : 54 W.R. 22 : 21 T.L.R. 368, I am of opinion that the Calcutta High Court has rightly held that money paid as consideration for bringing about a marriage or adoption may be recovered. But this is subject to the rule of ex turpi causa. I entirely agree with the learned Chief Justice that this is a case in which the Court should not interfere for fear of sullying its hands. I regard the contract as one made by a man of position to induce another to prostitute his religious calling for his benefit for a bribe of Rs. 5,000.