Norman Macleod, Kt., C.J.
1. The plain tiff filed this suit against the defendants as executors of the last will of one Jumabhai Sheriff claiming two separate sums of Rs. 10,000 with interest at six per cent, from the death of Jumabhai, under a document alleged to have been executed by Jumabhai on January 18, 1919, which ran as follows:
Bai Dinbai-Owing to my health becoming weaker day by day I give you this paper in writing of my free will that you will kindly accept Rs. 10,000 for the fee for the nursing which you have done for me and my family for ten to twelve years and Rs. 10,000 as a paltry present from me in all Rs. 20,000 to be paid after my death out of my estate.
2. She also alleged that the deceased made an oral will in her favour. The defendants pleaded that the plaintiff only attended on the deceased as a nurse when he was suffering from typhoid fever for which she was fully paid. The relations between the plaintiff and the deceased were otherwise of an immoral character. They denied that the document sued on was executed by the deceased or that any oral will was made in plaintiff's favour. They contended that the alleged settlement was void for want of consideration, but in any event it was of a testamentary character and was revoked by the will. The claim to the second Rs. 10,000 was afterwards abandoned by the plaintiff. The learned Judge who heard the case decided-
(1) That the plaintiff was occasionally employed by the deceased as a nurse.
(2) That there was a settlement of her fees at Rs. 10,000.
(3) That Jumabhai directed that the plaintiff should be paid Rs. 10,000 after his death.
(4) That the plaintiff could recover Rs 10,000
(5) That Jumabhai executed the document of January 18, 1919.
(6) That it was not void for want of consideration for immorality or undue influence.
(7) That the document of January 18, 1919 was not of a testamentary character, and was not revoked by the will.
(8) That the deceased had not made an oral will.
(9) That the letters Exh. D to the plaint were written by the deceased.
(10) That the plaintiff had not been fully paid for her and passed a decree in favour of the plaintiff for Rs. 10,000 with interest at six per cent, from the date of Jumabhai's death with costs and interest on judgment
3. The defendants have appealed.
4. The first question which arises is what is the nature of the document Exh. A on which the plaintiff's suit is founded.
5. The learned Judge held that is was a Post-obit. The first requisite of a bond is that the obligor must be bound in a certain sum of money. But if the payment depends on a contingency as in the event of the obligor surviving a relative from whom he has expectations, or if the payment is certain but the terms of payment uncertain as in the case of a nond conditioned for payment of a certain sum on the death of the obligor, the bond is called a post-obit bond.
6. It is difficult to see how Exh. A can be construed as a bond as it did not bind jumabhai to pay any ascertained sum to the plaintiff. The Judge considered it as an actual disposal of his property by jumabhai. He conveyed to Dinbai a sum money in consideration of past services, but gave the time of payment as the time of his death. If Ex. A was a conveyance it could not be a bond, but the only way that a sum of money can be conveyed is by actual transfer of the money or the equivalent. If Jumabhai had said or written 'Here is a note for Rs. 10,000, my executors will give it to you after my death' his act would clearly have been of testamentary character, and would have been revoked by the subsequent will.
7. In opinion Ex. A is not a post-obit bond, and on this finding the plaintiff would be out of Court. It is necessary, however, considering the amount of the claim, to deal with the other question whether as a matter of fact Exh. A was executed by Jumabhai as alleged by the plaintiff. [His Lordship after discussing the evidence preceeded.-]
8. On the evidence I do not think the plaintiff has succeeded in proving that Exh. A was signed by Jumabhai.
9. But as this case may go to a higher Court it is necessary for us to consider the sixth issue in tin trial Court : Whether, if Exh. A was executed by Jumabhai, it is not void for want of consideration, for immorality, or undue influence.
10. The learned Judge thought there was some consideration for the Rs. 10,000 given by way of (Sic) nursing services, but the real consideration no doubt was not Dinbai's Work as a nurse but her long intimacy with Jumabhai As no adultery had been proved, the consideration was past cohabitation and so the agreement, on the authority of Man Kuar v. Jasodha Kuar I.L.R. (1877) All. 478 and Dhiraj Kuar v. Bikramajit Singh I.L.R. (1881) All. 787 was not invalid on the ground of immorality. In the first place it appears to me that the evidence very clearly points to the fact that the intimacy between Jumabhai and Dinbai commenced during the life-time of Dinbai's husband who died in March 1914 (Exh. 20). Miss Cunningham paid that Dinbai must have been training at the Motlibai Hospital in 1912. Jumabhai used to take her home. He took her out in a victoria not in a motor car. In Exh. F Dinbai writing to the third defendant said:
Look here Musabhai the whole world would know what sort of a connection there was between your father and myself. I have served your father with real diligence and with heart and soul not for one or two years but for fourteen years uniformly and just as one should bake care of a glass vessel I had taken care of him. During fourteen years he never spoke an untruth in his taken with me.
11. There is not a word in that letter about nursing services and it seems to me that it is a perfectly fair inference that the connection between Jumabhai and the plaintiff had ceased to be platonic before the plaintiff's husband died. Moreover it is not suggested by the plaintiff in that letter that her services as mistress had not been paid for; the agreement between Jumabhai and the plaintiff was that Jumabhai should pay the plaintiff Rs. 100 a month in return for the plaintiff becoming his mistress and that agreement came to an end on Jumabhai's death. The agreement now set up for a sum of money to be paid on Jumabhai's death must be considered having regard to the provisions of the Indian Contract Act. Although a study of the English law on the point may be necessary both to the jurist and the student, it is out of place in a judgment as more likely to lead to a confusion of ideas and an erroneous decision, Under Section 25 of the Act an agreement is void if made without consideration unless it comes within one of the exceptions mentioned in the section. The exception relied on by the plaintiff was that of a promise to compensate wholly or in part a person who has voluntarily done something for the promisor. The relative illustrations are (c) and (d). The word 'voluntarily' must necessarily exclude anything done at the request of the promisor, see Sindha Shri Ganpatsingji v. Abraham I.L.R. (1895) 20 Bom. 755 and it is impossible to consider the services of the plaintiff rendered to Jumabhai as his mistress except as services rendered at his request. In Dhiraj Kuar v. Bikramajit Singh I.L.R. (1881) All. 787 it was considered that a promise to pay a woman an allowance on account of past cohabitation could be regarded as an undertaking by the promisor to compensate the promisee for past services voluntarily rendered. The correctness of this decision has been doubted by Pollock and Mulla, p. 199, and with all due respect I am unable to agree with it. The agreement set up in this suit therefore in my opinion requires consideration to make it enforceable. Consideration is defined in Section 2(d) of the Indian Contract Act:
When at the desire of the promisor the promisee or any other person has done or abstained from doing, or does or abstains from doing or promises to do or abstain from doing something, such act or abstention or promise is called a consideration for the promise.
12. Therefore something which the promisee has done at the desire of the promisor before the promise is given, is good consideration provided it is lawful under the provisions of Section 23. It is, therefore, not necessary to consider whether at the time that something was done by the promisee at the desire of the promisor, it was intended that recompense was to be given, the amount to be fixed at a future date, although as stated in Pollock and Mulla, fourth edition, p. 26, in many common circumstances the fact of service being rendered on request is ample evidence of an undertaking that it was to be paid for according to the usual course.
13. Under Section 23 of the Act the consideration or object of an agreement is lawful unless (inter alia) the Court regards it as immoral or opposed to public policy.
14. It cannot be said that the object of an agreement to provide for the future maintenance of a mistress after the connection has ceased is unlawful, but the consideration for an agreement is quite separate from the object and both must be lawful to make the agreement enforceable at law, In Dhiraj Kuar v. Bikramajit Singh the Court was of opinion that past cohabitation would not be an immoral consideration if it could be called a consideration for a promise to pay an allowance. But as submitted by Pollock and Mulla at p. 164 the question is whether a consideration, which is immoral at the time and therefore would not, support an immediate promise to pay, becomes innocent by being past. Once we get rid of the confusion between the consideration for and the object of an agreement, and the distinction made by English Jaw between something done before the promise is given and something done at the time of the promise or to be done thereafter, the answer seems to be clear : see Kisandas v. Dhondu (1919) 22 Bom. L.R. 762. There can be no difference whether A says to B 'I will give you Rs. 1000 a month if you live with me for a year' or 'I will give you Rs, 1200 because you have lived with me for a year.' The something to be done by the promisee in the one case is the same as the something done in the other case and if the Court thinks that the one act is immoral, it must also think the other immoral, however much it may think that the conduct of the promisor in desiring to recompense B for past services, or, assuming they have been paid for as arranged, to provide for her future maintenance, is honourable. The plaintiff's suit must, therefore, be dismissed with costs throughout.
15. Stay execution vacated, order to contain costs of that application.
16. The case for the plaintiff is stated in para 3 of the plaint which is as follows:
3. Prior to his death the said Jumabhai Sheriff settled the amount due to the plaintiff for her services as nurse and agreed to pay to plaintiff Rs. 10,000. He also directed that a present of Rs, 10,000 should be paid to the plaintiff out of his estate after his death. Hereto annexed and marked A is a document executed by the said Jumabhai Sheriff dated January 18, 1919, evidencing the above facts.
17. It may be noted that when the case came to trial the claim was confined to the first item of Rs. 10,000.
18. The genuineness of the document Exhibit A on which the suit was based was denied in the written statement and an issue was raised upon the point (Issue No. 5.). The determination of that issue is the most important question of fact in the case. The plaintiff cannot succeed without establishing the genuineness of the document which is the foundation of her suit. The learned trial Judge has decided this point in her favour, I find myself unable to agree with his conclusion. [His Lordship after discussing the evidence and finding that the connection began before the death of plaintiff's husband, proceeded.-]
19. I hold that the document is not proved.
20. This finding must entail the dismissal of the suit but were the document genuine the result would be the same. I accept the view of the learned trial Judge that the words 'nursing services' are no more than an euphemism. The intention must have been to reward plaintiff for her long connection with the deceased. There are two grounds on which it appears to me that the document cannot be enforced. In the first place it is testamentary : in the second place, it falls within the scope of Section 23 of the Indian Contract Act.
21. If the document is read as whole it is nothing more than a declaration by the deceased of an intention which he desires to be carried into effect after his death. There is no present obligation and therefore it is not a bond. If this is the correct view then it was open to the deceased to revoke that disposition, and in his will of January 29 he revokes 'whatever wills or testamentary writing I may have made previous to this.' I cannot discover any covenant by him not to revoke this disposition.
22. If the document is to be regarded as a promise to pay then either there is consideration, or there is not. In the latter case we have to consider Section 25 of the Indian Contract Act. That section lays down the general rule that agreements without consideration are void. There are three exceptions where an agreement without consideration is declared to be a contract and therefore enforceable. Of these three exceptions the second alone need be considered for the first and the third are plainly inapplicable, Can it be said that plaintiff had ' voluntarily done something' for the deceased. In Sindha Shri Ganpatsingji v. Abraham I.L.R. (1895) 20 Bom. 755 Farran C.J. says:
The section appears to cover cases where a person without the knowledge of the promisor or otherwise than at his request does the latter some service and the promisor undertakes to recompense him for it.
23. If that be so the present case is outside Section 25.
24. If it can be taken that the past services rendered at the request of the deceased are evidence of an understanding that payment would be made in the usual course then those past services may be consideration for the promise. But here those services were paid for at the rate of Ex. 100 per month. But if, nevertheless they be regarded as consideration the question arises whether Section 23 does not render the agreement void. It has already been shown that for many years the connection was adulterous. An adulterous connection must be regarded as immoral or opposed to public policy, and the consideration is therefore unlawful. It is difficult to separate that part of the connection which was adulterous, that is to say, that part which was prior to the death of the husband, from the later part. Such a case is covered by Section 24. But in any case it would be impossible to say that a connection such as this is not immoral, and if that connection, past though it be, is the consideration, then the consideration is immoral, and therefore by virtue of Section 23 unlawful. The agreement is, therefore, void.
25. The appeal must, therefore, be allowed and the suit dismissed with costs throughout.