ISMAILJI YUSUFALI Vs. RAGHUNATH LACHIRAM MARWADI

JUDGEMENT

(1.) The facts in this second appeal are shortly these: One Yusufalli, father of the appellant, obtained from Government a lease of certain salt-pans under a certain license, one condition of which was that the lessee shall not sub-let the salt-pans without the written permission of the Collector. Without any such permission, however, Yusufalli sub-let to the respondent, who, as security for the performance of the conditions binding on him under the sub-lease, deposited a sum of Rs. 1,000 with Yusufalli. The respondent accordingly entered on possession of the salt- pans under his sub-lease. Sometime after that, Tusufalli having died, the appellant his son, obtained a fresh lease with a fresh license from Government and the respondent obtained a sub-lease from the appellant on the same terms as those contained in the sub-lease obtained from Yusufalli. For this sub-lease the appellant had obtained no permission from the Collector as required by the license. The respondent deposited a sum of Rs. 1,000 with the appellant to secure the performance by him of the conditions of the new sub-lease; the sub-lease was acted upon; its term expired; and the respondent paid all that was due under it to the appellant. The suit out of which the second appeal arises has been brought by the respondent to recover the deposit of Rs. 1,000, because the appellant denied the respondent's right to that amount on the ground that the amount in questionformed a consideration for an agreement, which, having been forbidden by law, was illegal. This was the defence to the action raised in both the Courts below and it has failed there,

(2.) The ground on which both those Courts have proceeded in overruling the plea of illegality is that the contract to sub-let is not absolutely prohibited by the license granted by the Collector to the appellant. But that view of. the dealing between the parties ignores the real nature and object of the deposit to recover which the present suit was brought.

(3.) Under Section 11 of the Salt Act (Bombay Act II of 1890) the manufacture of salt without a license is prohibited subject to a proviso which is not material to our purpose here. Section 47 of the Act makes such manufacture an offence and renders any person committing it liable to punishment.