M KOTHANDAPANI MUDALIAR Vs. DHANAMMAL

JUDGEMENT

(1.) The defendant is the petitioner. The suit was to recover the amount due under a promissory note executed by him in favour of one Lakshmi Amrnal who subsequently endorsed the note to the plaintiff-respondent. On the evidence, the trial Court has found that the suit promissory note, Ex. A, was executed by the defendant in consideration of past illicit intercourse and has decreed the suit.

(2.) The petitioner's learned advocate relies upon the decision of Sundaram Chetty, J., in Ganapathi Chetti V/s. Sundararaja Pillai I.L.R. 1930 Mad. 239, where the learned Judge took the view that past illicit cohabitation is immoral consideration under Section 23 of the Indian Contract Act and it cannot therefore support a promise. The plaintiff-respondent's learned advocate on the other hand argues on the authority of certain other decisions which will be referred to presently that so far as this Court is concerned, it is now settled that although future illicit cohabitation cannot support a promise for the reason that it is immoral consideration, yet there is nothing wrong in a promise made in consideration of past cohabitation. It can only amount to a promise to compensate a person who has voluntarily rendered service for the promisor within the meaning of Section 25, Clause (2) of the Indian Contract Act and as such it is a valid contract. He concedes that the Bombay High Court has taken a different view in the cases in Hussain Ali V/s. Dinbai and Kisendas V/s. Dhondu(1919) I.L.R. 44 Bom. 542, but. he relies on the observations of Bhashyam Ayyangar, J., in Lakshminarayana Reddiar V/s. Subhadri Ammal (1902) 13 M.L.J. 7 which have been followed in the decision in Namberumal Chetti V/s. Veerapervmal Pillar , where one of the learned Judges expressed dissent from the view taken in Bombay and by Sundaram Chetty, J., in Madras. There also there was a promissory note which was executed in consideration of past cohabitation. Ramesam, J., states in the course of his judgment as follows: The next question that arises is whether the plaintiff can recover any amount on the promissory. note. It is said that the promissory note is for an immoral consideration. On this point, I am inclined to agree with the view of the trial Judge and not with the Bombay cases such as Hussain Ali V/s. Dinbai and Kisendas V/s. Dhondu (1919) I.L.R. 44 Bom. 542...In Indian Law past consideration is good consideration and as there is nothing immoral in remunerating a woman who has rendered services for such past services, the consideration is good. Vide Lakshminarayana Reddi V/s. Subhadri Ammal (1902) 13 M.L.J. 7, per Bhashyam Ayyangar, J., with whose judgment I agree. I am unable to agree with the judgment of Sundaram Chetty, J., in Ganapathi Chetti V/s. Sundararaja Pillai . It will thus be seen that the weight of authority in this Court is in favour of the view that past illicit cohabitation may validly support a promise to pay a sum of money as in the present case. Under the English law also such a consideration is not regarded as immoral. In Halsbury's Laws of England (Hailsham edition), volume 7, page 162 a summary of the case-law on the subject is given in the following words: A contract which is made upon an immoral consideration or for an immoral purpose is unenforceable and there is no distinction in this respect between immoral and illegal contracts. The immorality here alluded to is sexual immorality. A promise by a man to pay money to a woman in consideration of illicit cohabitation which is to take place between them ... is void even if made under seal, but a promise which is made in consideration of past cohabitation only is simply a voluntary promise and if made under seal can be enforced. These authorities support the contentions of the respondent's advocate which seem to me to be well founded. The decision of the trial Court is therefore correct.

(3.) Since no other point is pressed on behalf of the petitioner, this civil revision petition must be dismissed with costs.