SUNDRABAI SITARAM NARANGIKAR Vs. MANOHAR DHONDU KHANDALGAONKAR

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff for setting aside a sale, dated April 22, 1925, executed by his grandmother in favour of the defendant and for possession of such part of the property as may be found in her possession. The defendant is the sister of the plaintiff's father, and she defended the suit on the ground that the property, the subject- matter of the sale-deed, belonged to her mother who had sold it to her. According to the plaintiff, the property was purchased by his father benami in the name of his mother, i. e., the plaintiff's grandmother, in 1901, as he was a Government servant. It appears that the plaintiff's father was a police constable, and whilst in service he purchased this property benami in the name of his mother. This was denied by the defendant, who contended that the property belonged to the mother and was purchased by her with her own moneys. The trial Court found that the property was purchased by the plaintiff's father benami in the name of the mother, and this finding was accepted by the learned appellate Judge. In appeal, however, the defendant raised a contention that the transaction of the purchase by the plaintiff's father and the contract on which it was founded were void by reason of the provisions of Section 33 of the Bombay District Police Act, IV of 1890. This contention was negatived by the appellate Court, relying on Bhagwan Dei V/s. Murari Lal (1910) I.L.R. 39 All. 51, F.B. It may be pointed out, however, that in the Allahabad case the transaction was prohibited by one of the Government Servants Conduct Rules, and not, as here, by statute. The distinction between the two classes of cases is obvious and is pointed out in many decisions. I need refer to a decision of Sir Basil Scott in Ramkrishna Trimbak V/s. Narayan, s. c. 17 Bom. L.R. 955, and also to the remarks of the Allahabad High Court itself in the same volume at pp. 60 and 61. The question, therefore, is whether the lower Court's decision is right.

(2.) Section 33 of the Bombay District Police Act, before it was repealed by Bombay Act XXIV of 1930, ran as follows :- 33. (1) No police-officer shall engage in trade or be in any way concerned either as principal or agent, in the purchase or sale of land within the district wherein he is employed or in any commercial transaction whatever, without the permission of the Magistrate of the District or of Government.

(3.) The law on the subject is somewhat complex, but we think the principle is well put by Parke B. in Cope V/s. Rowlands (1836) 2 M. & W. 149, a case which is often followed and referred to with approval by eminent Judges in England, in these words at page 157:- It is perfectly settled, that where the contract which the plaintiff seeks to enforce, be it express or implied, is expressly or by implication forbidden by the common or statute law, no court will lend its assistance to give it effect. It is equally clear that a contract is void if prohibited by a statute, though the statute inflicts a penalty only, because such a penalty implies a prohibition. Lord Holt, Bartlett V/s. Vinor (Carthew, 252). And it may be safely laid down, notwithstanding some dicta apparently to the contrary, that if the contract be rendered illegal, it can make no difference, in point of law, whether the statute which makes it so has in view the protection of the revenue, or any other object. The sole question is, whether the statute means to prohibit the contract ?