KAMARBAI Vs. BADRINARAYAN

JUDGEMENT

(1.) THE important question to be decided in this appeal is whether the plaintiff could take an advantage of the immoral relations which he claimed to have established between himself and defendant No.1, even according to his own story. Mr. Karmali, the learned counsel for the appellants, submitted that the learned Civil Judge has not applied his mind to the three decisions which are referred to by him or to the law regarding the effect of immorality vitiating the agreements and transactions under Section 23 of the Indian Contract Act, read with Section 6, Clause (h) of the Transfer of Property Act.

(2.) HE argued that, instead of supporting the conclusions of the learned Judge, the decision of the Division Bench of this Court in Sabava Yellappa v. Yamanappa Sabu, 35 Bom LR 345 : (AIR 1933 Bom 209), lays down that a suit for the recovery of possession of property transferred under a sale deed, the consideration or object of which was immoral, i.e. past or future cohabitation, though void under Section 23 of the Indian Contract Act, and Section 6(h) of the Transfer of Property Act, the principle of equity contained in the maxim 'in pari delicto potior est conditio possidentis' i.e. where each party is in fault law favours him who is actually in possession must apply.

(3.) MR . Kanade, the learned counsel appearing for the plaintiff, tried to repel these argument's relying on the decision of another Division Bench of this Court in Istak Kamu Musalman v. Ranchod Zipru Bhate, AIR 1947 Bom 198, where it was laid down that where, a transaction though completed is intended to be for consideration, it can be impeached if the consideration is immoral, and it makes no difference whether the transaction is executory or executed.