KALI KUMARI BAISNABI Vs. MONO MOHINI BAISNABI

JUDGEMENT

(1.) The plaintiff who was fortunate in winning in the trial Court has preferred this appeal against the decree of the learned Subordinate Judge, Fourth Court, Mymensingh, passed on appeal, by which her suit has been dismissed. The suit is on a promissory note executed by the defendant in her favour on the 4 Assar 1338=19 June 1931, for the re-payment of Rs. 500 with interest at the rate of Rs. 37 per cent. per annum. The plaintiff recites the following facts in her plaint: (1) that she took a lease of a house belonging to the defendant on 14th Assar 1336=28 June 1929, at a monthly rent of Rs. 50; (2) that she deposited Rs. 600 with the defendant; (3) that the contract was that on her vacating the house the said money was to be returned to her; (4) that she left the house in Jaistha l338=June 1931, and the defendant took possession. There was then an adjustment of accounts between her and the defendant; the rent due for Bysack and Jaistha 1338 was deducted and the sum of Rs. 500 was found due from the defendant to the plaintiff; (5) that the defendant could not pay the said sum then and there and for it executed the promissory note sued upon.

(2.) The recitals in the promissory note filed with the plaint are to the same effect. The plaintiff is a prostitute, and leased the defendant's house for sub-letting it to prostitutes for carrying on their trade. The finding of the Courts below is that the defendant knew that the plaintiff was a prostitute and took the house for sub-letting it to prostitutes. The defence is that the money due on the promissory note cannot be recovered by suit, the claim being based on turpi causa. This defence was negatived by the Munsif but has prevailed with the learned Subordinate Judge. An agreement, the consideration or object of which is illegal, immoral or against public policy, is not a contract under the Indian Law. Moneys due or paid under such an agreement cannot be recovered by suit. This is clear on the statute itself, but what is urged by the appellant's advocate is that in order that the principle ex turpi causa non oritor actio may be invoked by a defendant, it is necessary that the plaintiff should require aid from the illegal transaction to establish his case. To support the said contention he relies upon the observations of Mellor, J., in Taylor V/s. Chester (1869) 4 QB 309, which is as follows: It was therefore impossible for him to recover except through the medium and by the aid of an illegal transaction to which he was himself a party. Under such circumstances the maxim in pari delicto potior est conditio possidentis clearly applies and is decisive of the case.

(3.) The learned advocate for the appellant says that the plaintiff has not to rely in this ease before me on the agreement for lease and that she is entitled to succeed on the promissory note as soon as its execution is proved, In my judgment the true principle deducible from the cases, is that where the consideration or object of an agreement is illegal, immoral or against public policy, the agreement cannot be enforced; the moneys due on the basis of the said agreement cannot be recovered, and securities, covenants, bonds and documents of a like nature given in respect of the moneys due under the agreement would be equally unenforcable in a Court of law. If the spring is tainted the flow is equally so. In Fisher v. Bridges, 3 E & B 612 the defendant covenanted by a deed with plaintiff that he, the defendant, would pay the plaintiff ?630 on a certain date. The suit was brought on this covenant. The defence was that the plaintiff agreed to sell to the defendant some lands knowing that the said lands were to be exposed for sale by the defendant by lottery contrary to statute; that in pursuance of the agreement the lands were sold by the plaintiff to the defendant, and as part of the consideration could not be paid then and there in cash, the aforesaid covenant was made to secure payment thereof. The facts alleged in the defence were established. It was not denied that the original agreement, e.g. for sale, was tainted with illegality, lotteries being prohibited by statutes passed, in the reigns of William III and George II (10 & 11 W. Ill, C. 17 and 12 G. II, C. 28) and could not be enforced. No action could be brought for recovery of the purchase money left outstanding. It was argued however the covenant could be enforced, the covenant being an instrument under seal which required no consideration to support it. Jervis, C.J. in overruling this contention, observed thus: The authorities cited in the argument show that where the bond or other instrument is connected with the illegal agreement, it cannot be enforced; Lightfoot V/s. Tenant, 1B&P 551, Panton V/s. Popham, 9 East 408, The Gas Light and Coke Co. V/s. Turner, 5 Bing (N C) 666, and therefore if this plea alleges that the covenant was given in pursuance of the illegal agreement, it would upon these authorities be an answer to the action.... It is.clear that the covenant was given for payment of the purchase-money. It springs from, and is a creature of, the illegal agreement; and the law would not enforce the original illegal contract, so neither will it allow the parties to enforce a security for the purchase-money, which by the original bargain was tainted with illegality.