KANDAIYA PILLAI, ALIAS KANDASWAMI PILLAI (MINOR)BY THEIR NEXT FRIEND VENKATA CHALAM PILLAI Vs. CHOKKAMMAL

JUDGEMENT

(1.) There is really only one point open to the appellant on this second appeal. The learned Judge below found as a fact that there had been an adoption of the two women through whom the plaintiffs claim, and that such adoption had been made for the purposes of prostitution. The defendants claim under those who took the girls in adoption for that rupees and they plead that such an adoption is against public policy and, therefore wholly nugatory and void. That is conceded, but it is said that the defendants are estopped from setting up this against the plaintiffs whose ancestors were not in pari delicto. It is clear law that an estoppel cannot be relied upon to defeat a statutory prohibition [see per Parke, B., in Hill v. Manchester and Salford Water Works Co., (1831) 2 B & Ad. 544 at p. 553 : 1 L.J.N.S.) K.B. 230 : 36 R.R. 656 : 109 E.R. 1245]. "It was for the Company, if they disputed their liability, to open the estoppel arising from their own admission, by showing that the consideration of the bonds was illegal or inconsistent with the Statutes under which they acted; or that there was no consideration. But that would not be so if, for instance, the Company had given these bonds by way of payment to a parson who had executed works for them under the second Statute instead of raising money by bonds for the purpose of paying such person."

(2.) Nor can it be relied upon against one who fills a public capacity charged with duties in the performance of which other persons are interested, e.g., the Vicar of a parish MacAllister v. Bishop of Rochester (1880) 5 C.P.D. 194 : 49 L.J.C.P. 114 : 42 L.T. 22. It is clear that a prohibition on the ground of public policy would on these analogies not be capable of being evaded by the doctrine of estoppel. But it is said here that the act itself does not fall within the mischief of the rule, for adoption by dancing girls is recognised by law and only a particular intent with which it is done is prohibited, and that the estoppel can attach itself to the setting up of the intent only. It is obvious that such a result would entirely defeat the rule; and we think, moreover, that it is baaed on wholly fallacious reasoning. What is prohibited is not the intent; any one can harbour an intent, so long as be does nothing to carry it into execution; what is prohibited is the act done with that intent. The act is one, just as the act of murder is one, though it can be analysed into killing with a certain intent. Moreover, such an adoption is not really adoption at all; it is a mere going through of certain forma which, when gone through by persons with an untainted purpose, would result in an adoption; as actually gone through they result in nothing, and affect the status of no one. It is no more an adoption than bigamy is a marriage and in finding that the adoption in fast is proved the learned Judge means no more than that he finds it proved that the form was gone through.

(3.) The second appeal fails and is dismissed with costs.