David Annoussamy, J.
1. The plaintiff appeals. The suit out of which this appeal arises was laid with the following averments. The defendant is a building contractor known to the plaintiff who appears to be a widow. The plaintiff was making efforts to have her son admitted in the Madras Medical College. The defendant, came forward to help her in having her son admitted in the medical college, if the plaintiff would lend him some money. Accordingly, the plaintiff Parted with Rs.'l5,000 in all. The seat in the medical college was not secured. The defendant executed an agreement undertaking to pay the money. Since he failed to act as per that agreement, the plaintiff instituted the suit for the refund of the money.
2. The defendant denied totally all the facts, specifically the receipt of money from the plaintiff. He denied also that he had at any time promised to secure a seat for her son in the medical college. He denied also having executed an agreement as alleged in the plaint. He, however, admitted having executed a promissory note on the eve of his son's wedding under coercion.
3. The trial Court gave the following findings (1) The defendant received Rs. 15,000/- and executed Ex. a-1, document (2) only for aiding and accelerating the effort of obtaining a seat in the Madras Medical College for her son(2)the plaintiff had paid Rs. 15,000/- to the defendant and in acknowledgement of that payment, the defendant had executed Ex.A-1, and (3) Even though the agreement was invalid inasmuch as the plaintiff was less guilty party, the parties should be restored to the position which they occupied prior to the coming into existence of the contract and therefore the defendant should refund the amount he received under the illegal contract. In the result, the trial Court decreed the suit. The defendant preferred appeal before this Court.
4. The learned single Judge in his judgment dated 6-2-1978 allowed the appeal and dismissed the suit. In that judgment, the learned single Judge observed that it has been proved that the plaintiff had paid a sum of Rs. 15,000/- to the defendant and that the fact did not admit of any doubt. He held also' that under Ex.A-1, dated 8-1-1971 the defendant had agreed to repay the sum of Rs. 15,000/- on or before 31-3-1971. He has also recorded that it was specifically admitted by the learned Counsel for the defendant that Ex.A-1 contained the signature, of the defendant. He further held that though the defendant alleged that Ex.A-1, was signed under threat and coercion such threat and coercion were not proved. The learned Judge concluded by holding that he was in agreement with the trial court that the defendant received Rs. 15,000/- from the plaintiff and executed Ex.A-1 agreement. But the learned single Judge found that the agreement between the parties was against public policy and that the claim of the plaintiff was hit by the maxim in pari delicto potior est conditio possidmentis. In this connection, the learned single Judge observed as follows: When the plaintiff parted with Rs. 15,000/- as consideration for of the defendant agreeing to use his influence to secure for her son a seat in the Madras Medical College, it could only be by means other than straight-forward. The agreement discloses a tendency to corrupt or influence public servants to decide matters otherwise than on their own merits. The object for which the plaintiff gave Rs.15,000/- to the defendant was to use his influence evidently with the selection committee for selection of candidates to the Madras Medical College and that is opposed to public policy. It evidences her tendency to corrupt or to influence public servants or men in charge of public matters to decide and determise, matters otherwise than upon their merits, a tendency most injurious to public office. Therefore, both the plaintiff and the defendant must be considered to be in pari delicto. It is upon such conclusion that the learned single Judge allowed the appeal and dismissed the suit.
5. The point which arises for determination in this appeal is the real scope of the maxim in pari delicto potior est conditio possidentis, in the light of the facts of the case. The learned single Judge has extracted passages in his judgment from a number of decisions both Indian and foreign and also from important text books. They mostly deal with the legitimacy of the maxim and the exceptions thereto. They do not throw any light on the meaning of the maxim itself, in its essential aspects. The phrase in pari delicto suggests two things. First, there should be an act of delinquency, an act repugnant to law, on illegal act. Secondly, both the parties should be delinquen and that too, equally, with the same degree of guilt. The word 'Possidentis' indicates the fact of possession as owner. It excludes those whose possession is precarious, terminable at will by another person, like the possession of a lessee, an agent or a borrower. These kinds of precarious possession would not normally emerge out of illegal transaction between parties. Those who have come into possession of a thing from an illegal transaction would usually claim to be owners in their own right.
6. With the maxim understood in this way let us turn to the facts of the case. The learned single Judge, as pointed out earlier, observed that the object with which the plaintiff parted with Rs. 15,000/- in favour of the defendant was for the latter using his influence effectively with the Committee appointed for selecting candidates to the Madras Medical College and that the transaction was opposed to public policy. But the evidence does not disclose any such illegal act. The defendant who wants now to take shelter under the maxim should have shown how the transaction was illegal. But in the present case the defendant did not even accept that there was any talk of his helping the plaintiff's son in getting admission to the Medical College. He has unequivocally deposed 'I have not any connection whatsoever with the Medical College Selection Committee'. There could have been an illegal transaction only if the defendant was able to achieve the purpose of having the plaintiff's son admitted into the Medical College in violation of the norms either as an influential member of the Selection Committee or as a person able to exert influence on such a member. It is obviously not so in the present case. Since there is no such influence, not even an attempt thereof and therefore no illegality, the question of party in the act of illegality does not arise.
7. Secondly, as far as the possession of the money is concerned the case of the plaintiff throughout has been that the money was given as a loan. This is what she stated in her plaint and what she reiterated when she got examined. The defendant did not come forward to controvert this at any point of time, his case having been throughout that he did not receive the money at all. It is, therefore, clear that the defendant was not in possession of the money within the meaning of the maxim; he cannot therefore claim benefit thereunder.
8. It is true that the plaintiff referred to some talk between the parties in respect of admission. But what is on record is only an unjustified and blind belief of an anxious mother that admission could be secured by influence and that the defendant could be instrumental to that effect. This may show ignorance or at most a lack of civic sense and fair play. It cannot be considered by any stretch of imagination as an act repugnant to law, as an act of delinquency so as to bring it within the mischief of the maxim.
9. Even otherwise, the plaintiff does not have to rely on this aspect of admission into the Medical College for the recovery of the money. This aspect is only incidental circumstantial. In fact, the maxim in pari delicto is an application to a particular set of circumstances of a more general maxim ex turpi causa non oritur actio which means that no right of action arises out of a wicked cause. In the present case the plaintiff does not endeavour to recover money given as a quid pro quo for a seat for her son to be secured by the defendant exerting influence on the Committee of Selection. The real cause of action is indeed the loan of money, which loan the defendant has undertaken to repay under Exhibit A-l. The plaintiff does not have to rely on the matter of admission for the recovery of the loan. The Supreme Court in a judgment quoted by the learned single Judge also, viz., Sita Ram v. Radha Bai and Ors. : 1SCR805 , has held thus:
The principle that the Courts will refuse to enforce an illegal agreement at the instance of a person who is himself a party to an illegality or fraud is expressed in the maxim 'in pari delicto portior est conditio possidentis' But there are exceptional cases in which a man will be relieved of the consequences of an illegal contract into which he has entered-cases to which the maxim does not apply. They fall into three classes: (a) Where the illegal purpose has not yet been substantially carried into effect before it is sought to recover the money paidor or goods delivered in furtherance of it. (b) Where the plaintiff is not in pari delicto with the defendant (c) Where the plaintiff does not have to rely on the illegality to make out his claim...
The claim of the plaintiff would be saved by Clause(c) of the above ruling of the Supreme Court even if it is considered that it is tainted by illegality.
10. So, from whatever angle the matter is looked at, the case of the plaintiff is not hit by the maxim in pari delicto when it is understood as it should be. It is worth nothing that the defendant relied very little on this point before the trial Court. Only one paragraph out of eleven is devoted to this point. The point was not put specifically in issue. Even in the grounds of appeal before the first appellate Judge it is referred to only in one paragraph out of 26 paragraphs.
11. In the result we have no hesitation in allowing the appeal. The judgment of the learned single Judge is set aside and the decree of the trial Court is restored. The defendant shall pay costs throughout.