Pandrang Row, J.
1. This is a petition to revise the decree of the Subordinate Judge of Ramnad at Madura dated 20th November, 1933, affirming on appeal the Decree of the District Munsif of Srivilliputhur dated 12th April, 1933, in O.S. No. 592 of 1931, a suit to recover Rs. 325 from the defendants as commission due to him for having negotiated the sale of some lands by one Alamelu Ammal in favour of the defendant. According to the plaint, the plaintiff was looking after the family affairs of the deceased husband of Alamelu Animal for a long time and the defendants came to him and it was agreed between him and the defendants that certain lands which were going to be sold by Alamelu Ammal to satisfy her creditors should not be sold to strangers but should be sold to the defendants cheaply according to the then market price, and that for such trouble as the plaintiff took in the matter, the defendants should pay him a commission of 5 per cent, on the sale price, that in accordance with that agreement, the plaintiff took much trouble in completing the sale and that the defendants have not paid the commission in spite of demand.
2. The defendants put forward two defences, namely, that there was no such agreement as mentioned in the plaint, and that if there was such an agreement, it was not enforceable because it was illegal and opposed to public policy. Both these defences have been dismissed by the Courts below and the plaintiff has obtained a decree as sued for.
3. As regards the factum of the agreement the matter is one of fact and the findings of the Courts below cannot be questioned in revision. The only point therefore that remains to be decided in this petition is whether the agreement that has been alleged in the plaint and spoken to by the plaintiff in his evidence during the trial, is an unenforceable contract. In the trial Court, ft appears to have been contended that the agreement was unenforceable because of Section 23 of the Indian Contract Act and especially in view of illustration (j) to that section. Section 23 of the Contract Act runs as follows:
The consideration or object of an agreement is lawful, unless it is forbidden by law, or is of such a nature that, if permitted, it would defeat the provisions of any law, or is frauduleut, or involves or implies injury to the person or property of another, or the Court regards it as immoral, or opposed to public policy.
4. Illustration (J) is as follows:
A, who is B's mukhtar promises to exercise his influence, as such, with B in favour of C, and C promises to pay Rs. 1,000 to A. The agreement is void, because it is immoral.
5. For the purpose of deciding this point it is not necessary to go beyond what is contained in the plaint and in the evidence of the plaintiff himself. The allegations in the plaint have already been given above in brief and it only remains to extract relevant portions from the plaintiff's evidence. The plaintiff in his evidence states as follows:
I settled the sale on behalf of Alamelu Ammal. I settled it for sale to Perumal Raja (a stranger).... The defendants came to know of the offer through Mayandi Pandithan and Mayandi told me that defendants called me. I went there there to the defendants' shop....All the defendants agreed to pay me commission....Why did they agree? Because I agreed to settle the sale for them. I told this to my master Alamelu Ammal. I told her that I had settled the sale for Rs. 6,500. I did not tell her about the commission....I have settled the sales of Alamelu Animal's father-in-law on many occasions. So I was called by Alamelu Ammal.
6. So far his evidence in examination in chief. In cross-examination, the plaintiff stated as follow:
I used to attend to Raghunathachariar's (plaintiff's husband's) errands while he was alive. I might have gone to the lands once or twice at the request of Alamelu Ammal....Alamelu Ammal told me to settle the sale because there are creditors.... Defendants compelled me to get the lands for them. I told defendants that I know Alamelu Ammal well.
Q. Did you say that Alamelu Ammal would listen to your words?
A. I told defendants that Alamelu Ammal would listen to my words. They promised to pay me commission if I settle the sale profitably and I promised to do so.
Q. What do you mean by Sahayamoi
A. I mean that, if others offered a better price, I should settle the sale for defendants for less price ignoring the better offer.
7. From these statements made in the evidence of the plaintiff himself, it is clear to my mind that the consideration or object of the agreement between him and the defendants was fraudulent and was also immoral. The plaintiff was acting as an agent of Alamelu Ammal for the purpose of selling her lands. The plaintiff himself admits that he was asked by Alamelu Ammal to do this and he was looking after her affairs and her husband's affairs also for some time. He was thus occupying a fiduciary position and was actually employed or entrusted with the task of selling the lands, of course to the best possible advantage of Alamelu Ammal. While engaged in that capacity, he entered into an agreement with a prospective purchaser, whereby he was to look to the interests of the purchaser at the cost of the seller and for this breach of trust or confidence he was to get a commission of 5 per cent, on the sale price. It is clear from his own admissions that the object of the agreement and in fact, the consideration, so far as the other side was concerned, was that the plaintiff was to see that the sale was settled in favour of the defendants even for a less price, though better prices were offered by others. A contract like this is obviously unenforceable. There can be no doubt on this point. The decrees of the Courts below cannot be sustained because they are in effect decrees enforcing an unenforceable contract, and indeed a contract, the consideration or object of which is not lawful. The petition is therefore allowed with costs and the decrees of the Courts below are set aside and the suit dismissed.