MUTHUKKANNU (DEAD) Vs. SHANMUGAVELU PILLAI

JUDGEMENT

(1.) The plaintiff sued to set aside an assignment made by him to the defendant on the 24th June 1898 of his right under a simple mortgage deed executed to him on the 24 February 1898 by one Veerappa Padayachi for the sum of Rs. 1,500 5 due to the plaintiff by Veerappa. The District Munsif and the District Judge decreed the claim, the ground for the decree being that the consideration for the assignment recited in the instrument of transfer and relied on by the defendant in her defence, viz. payment of Es. 250 to the plaintiff by the defendant, discharge by the latter of debts due by the former to the extent of Rs. 265 and the delivery of jewels of the value of Rs. 940 never passed from the defendant to the plaintiff.

(2.) On behalf of the defendant, it was for the first time contended in this Court that according to the plaintiff's own case the transaction was entered into for an immoral purpose and the plaintiff as a person in pari delicto was not entitled to ask for the relief prayed for having regard specially to the fact that the transaction was one completely executed. The substance of the plaintiff's case with reference to the point thus raised on behalf of the defendant was this. The plaintiff who was at the time young and inexperienced was introduced to the defendant and her sister Ammakannu, dancing women living by prostitution, by certain individuals referred to in the plaint who had immoral relations with them, that the transfer in question was made expressly in consideration of future illicit intercourse between the plaintiff and Ammakannu, that the transfer was executed while the plaintiff was under the influence of the said persons acting in the interests of the women without the plaintiff having had opportunity of being properly advised in the matter and that shortly after the execution of the instrument the defendant and her partisans caused the connection between the plaintiff and Ammakannu to be broken off. This case was supported by the evidence given by the plaintiff himself and is uncontradicted except it be by the defendant's case that the consideration recited in the instrument of transfer did actually pass, which, however, as already stated, has been negatived by the concurrent findings of the lower courts.

(3.) The question then for determination is whether upon the facts spoken to by the plaintiff the decrees of the lower courts are sustainable. In dealing with this question we proceed on the footing that though the instrument of assignment purported to be between the plaintiff on the one hand and the defendant on the other, yet the transaction was intended for the benefit of both the sisters who according to the law governing them were members of a joint family, the defendant being the elder member and manager (Kamakshi V/s. Nagaratnam 5 M.H.C, p. 161). Mr. Rangachariar on behalf of the defendant did not question (as he could not) that the promise or expectation of future illicit cohabitation is an unlawful consideration and that an agreement founded on it is void. He contended, however, that the rule on the subject is confined only to executory contracts and as in the present instance the transaction was one which had been carried out whereby the mortgage interest possessed by the plaintiff became fully vested in the defendant the lower courts should have refused the relief prayed for. He strongly relied on Ayerst V/s. Jenkins L.R. 16 Eq., p. 275 in support of his contention. Now, that the doctrine laid down by Lord Selborne there is confined to cases where according to the intention of the parties the transaction is a gift absolutely completed is made clear throughout the judgment and particularly by the following passages. At page 283 of the report his Lordship observes:-" 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 remaining 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. I know no authority which requires or authorises a Court of Equity to give assistance to such a plaintiff under such circumstances." Again in the same page he says :-" A voluntary gift of part of his own property by one particeps criminis, to another is in itself neither fraudulent nor prohibited by law. And at page 284 he adds:" I think it consistent with all sound principle and with all authority to recognise the importance of the distinction between a completed voluntary gift valid and irrevocable in law (as 1 hold the transfer of the shares to the defendant's trustees to be) and a bond or a covenant for an illegal consideration which has no effect whatever in law." In short the precise point established by the case is, borrowing the words of Sir Frederick Pollock, that "an actual transfer of property which is on the face of it a completed it voluntary gift valid and irrevocable in law and confers an absolute beneficial interest, cannot be afterwards impeached by the settlor or his representatives though in fact made on an unlawful consideration." (Pollock on Contracts, 7 Edition, at p. 304). Where, therefore, the transaction though completed was not intended to be a gift but a transfer for consideration, in such a case if the consideration is shown to be unlawful on the ground of its immoral character that must necessarily make the transaction void and the question whether reliefs should be given or refused to a particeps criminis will have to be decided on principles different from that on which Ayerst V/s. Jenkins L.R. 16 Eq. 275 proceeds. This is in a way implied in the observation of Lord Selborne that " where the immediate or direct effect of an estoppel in equity against relief to a particular plaintiff might be to effectuate an unlawful object or to defeat a legal prohibition or to protect a fraud such an estoppel may well be regarded as against public policy." The effect of the authorities would seem to be that save the cast of gifts of the kind upheld in that case, transactions having for their consideration future illicit cohabitation whether the transaction be executory or executed are on grounds of public policy liable to be impeached even at the instance of a particeps criminis as will be seen from the statement of the law on the point in Pollock on Contracts, 7 Edition, page 386 and where the learned author expresses himself thus :-" A wider exception is made as we have seen above in the case of agreements of which the consideration is future illicit cohabitation between the parties. Apart from this particular class of cases it is submitted that the rule and its qualifications may be stated to this effect:-Money paid or property delivered under an unlawful agreement cannot be recovered by, nor the agreement set aside at the suit of, either party unless nothing has been done in the excution of the unlawlul purpose beyond the payment or delivery itself and the agreement is not positively criminal or immoral; or unless the agreement was made under such circumstances as between the parties that if otherwise lawful it would be voidable at the option of the party seeking relief; or in the case of an action to set aside the agreement unless in the judgment of the Court the interests of third persons require that it should be set aside. And Wootton V/s. Wootton referred to and distinguished by Lord Sel- borne in Ayerst V/s. Jenkins See L.R. 16 Eq. 275 at page 284 is a decisive instance against the courts laying down broadly that relief will never be given to a plaintiff in pari delicto in cases of completed transactions having for their consideration future illicit cohabitation.