DEIVANAYAGA PADAYACHI Vs. MUTHU REDDI

JUDGEMENT

(1.) There can be no doubt that the settlement as it is called, Ex. B, was made with the object and in consideration of the donee cohabiting with the settler. This can be plainly inferred from the terms of the document itself. The plaintiffs who are usufructuary mortgagees of the property obtained the mortgage from the donee, Sadachi Ammal. The 1st defendant who is the appellant before us is the settler. His case is that the settlement or transfer to Sadachi having been made for immoral consideration, the transaction is void altogether and the plaintiffs can have no title under the mortgage executed by Sadachi Ammal.

(2.) The facts are that this woman was kept by the 1st defendant, who made a gift of the property to her with the object that she should continue to be his mistress. She did in fact remain in his keeping and lived with him as contemplated by Ex. B. and to that extent therefore the immoral purpose which the donor had in view was attained. It is well established that when a transaction is entered into for an unlawlul or immoral purpose and that purpose has been achieved, the Court would not interfere at the instance of the particeps criminis to relieve him from the legal effect of the transaction. In the decided cases it is well settled that a person who entered into such a transaction is estopped from disputing the nature of the transaction if the immoral purpose for which it was entered into has been carried out.

(3.) The leading authority on the law on this subject is the case of Ayerst v. Jenkins (1873) 16 Eq. C. 275. The entire law is elaborately discussed in the judgment which was delivered by Lord Selborne, L. C. for the Master of the Rolls and he sums up the propositions which are established by the authorities at p. 282. Then he proceeds to point out the distinction between cases of executory contracts and executed contracts. He says "In the present case relief is sought by the representative not merely of a particeps criminis but of a voluntary and sole donor on the naked ground of the illegality of his own intention and purpose; and that not against a bond or covenant or other obligation resting in fieri but against a completed transfer of specific chattels, by which the legal estate in those chattels was absolutely vested in trustees, ten years before the bill was filed, for the sole benefit of the defendant." He states further on " But the voluntary gift of part of his own property by one pa-rticips criminis to another, is in itself neither fraudulent nor prohibited by law, and the present is not the case of a man repenting of an immoral purpose before it is too late and seeking to recall, while the object is yet unaccomplished, a gift intended as a bribe to iniquity. If public policy is opposed (as it is) to vice and immorality it is no less true as was said by Lord Truro in Benyon v. Nettlefold 3 Mac and G. 102 that the law in sanctioning the defence of "particeps criminis" does so "on the grounds of public policy, viz., that those who violate (he law must not apply to the law for protection." Then referring to a dictum of Lord Chancellor Campbell in Coulson v. Allison 2 D.F. and J. 525 and a decree of Vice-Chancellor Stuart in Wootten v. Wootten he observes that "It may be that the door of this Court is not closed against persons repenting of such unlawful connection and desirous of extricating themselves from fetters which, if relief were refused, might practically bind them to it." The case referred to here is one of mutual settlement made on the occasion of a fictitious marriage, and the observation in this part of the judgment applies to cases of executed transfers for an unlawful purpose in which the Court will interfere to relieve the transferor but only when the unlawful or immoral purpose had not been accomplished and the transferor repents of his action in time. The law as propounded here has been followed in India in many cases but it is sufficient to refer to only some of them Sidlingappa v. Hirasa (1907) I.L.R. 31 Bom. 405 Petherperumal Chetty v. Muniandy Servai (1903) I.L.R. 35 Cal. 551 Ram Sarup v. Kishan Lal (1907) I.L.R. 29 All 327 Thasi Muthukannu v. Shanmughavelu Pillai (1905) I.L.R. 28 Mad. 413 and Tayaramma v. Sifaramaswami Naidu (1900) I.L.R. 23 M. 613 : 10 M.L.J. 214.