Abdur Rahim, J.
1. There can be no doubt that the settlement, as it is called, Exhibit B, was made with the object and in consider of the donee cohabiting with the settlor This can be plainly interred from the terms of the, document itself. The plaintiffs, who are usufructuary mortgagees of the property, obtained the mortgage from the donee Sadachi Ammal. The first defendant, who is the appellant before us, is the settlor. His case is that the settlement or transfer to Sadachi having been made for immoral consideration, the transaction is void altogether and the plaintiffs car have no title under the mortgage executed by Sadachi Ammal.
2. The facts are that this woman was kept by the first defendant who made a gift of the property to her with the object that she should continue to be his mistress, She did in fact remain in his keeping and lived with him as contemplated by Exhibit B, and to that extent, therefore, the immoral purpose which the donor had in view was attained It is well established that when a transaction is entered into for an unlawful or immoral purpose and that purpose has been achieved, the Court would not interfere at the instance of the particeps criminis to relieve him from the legal effects of the transaction. In the decided cases it Is well-settled that a person who entered into such a transaction is estopped from disputing the nature of the transaction, if the immoral purpose for which it was entered into has been carried out.
3. The leading authority on the law on this subject is the case of Ayerst v. Jenkins (1873) 16 Eq. Cas. 275 . The entire law is elaborately discussed in the judgment which was delivered by Lord Selborne, L.C., for the Master of the Rolls and ha sums up the propositions which are established by the authorities at page 282. Then he proceeds to point out the distinction between cases of executory contracts and executed contracts. He says: 'In the present case relief is sought by the representative not merely of a particeps criminis but of a voluntary and sole donor oh the naked ground of the illegality of his own intention and purpose, and that, not against a bond or covenant or other obligation; resting in fieri but against a completed transfer of specific chattels, by which the legal estate in those chattels war absolutely vested, In trustees ten years before the bill was file, for the sole benefit of the defendant,' He states further on: 'But the voluntary gift of part of his own property by one particeps criminis to another, is in itself neither fraudulent nor prohibited by law, and the present is not the case of a man repenting of an immoral purpose before it is too late and seeking; to recall, while the object is yet unaccomplished, a gift intended as a bribe to iniquity. If public policy is opposed (as it is) to vice and immorality it is no less true, as was said: by Lord Truro in Benyon v. Nettlefold (1850) 3 Mac. & G. 94 that the law, in sanctioning the defence of 'particeps criminis' does so 'on the grounds of public policy, viz., that those who violate the law must not apply to the law for protection.'' Then, referring to a dictum of Lord Chancellor Campbell in Coulson v. Allison (1860) 2 D.F. & J. 625 and a decree of Vice-Chancellor Stuart in Wootton v. Wootton, he observes that: 'it may be that the door of this Court is not closed against persons repenting of such an unlawful connection and desirous of extricating themselves from fetters which, if relief were refused, might practically bind them to it:' The case referred to here is one of mutual settlement made on the occasion of a fictitious marriage, and the observation in this part of the judgment applies to cases of executed transfers for an unlawful purpose in which the Court will interfere to relieve the transferor but only when the unlawful or immoral purpose has not been accomplished and the transferor repents of his action in time. The law as propounded here has been followed in India in many cases but it is sufficient to refer to only come of them Sidlingappa v. Hirasa 31 B. 405 ; Petherpermal Chetty v. Muniandy Serval 35 C. 551(P.C.); Ram Sarup v. Kishan Lal 29 A. 327 ; Thasi Muthukannu v. Shunmugavelu Pillai 28M. 413 and Tayaramma v. Sitaramasami Naidu 28 M. 613 . It is, however, argued by the learned Pleader for the appellant that Section 6(h) Clause (2), of the amended Transfer of Property Act has made a difference in the law in this country. That section says that 'no transfer can be made for an unlawful object or consideration within the meaning of Section 23 of the Indian Contract Act.' The argument based on this clause is that the transfer for such an object or consideration it ipso facto void and, therefore, the transferor can come to Court and ask its assistance in getting back the property. I do not think that such a far reaching effect as the annulling of an established rule of law as kid down in Ayerst v. Jenkins (1873) 16 Eq. Cas. 275 and followed consistently in the Indian Courts could have been intended by the clause, It may be pointed out here that, so far as the amendment goes, that is, the changing of the words 'illegal purpose' into 'unlawful objection', its sole object was to amend the law on a minor point with respect to an actionable claim. It would have been far from the object of the Legislature to think of modifying the well established rules of equity as propounded in Ayerst v. Jenkins (1873) 16 Eq. Cas. 275 , by an indirect amendment of this nature. However that may be, the words of this clause do not necessarily bear out the extreme contention of the appellant. That clause does not lay down in what classes of cases the Court will or will not assist a person 'particeps criminis,' all that it says is that a transfer for an unlawful consideration cannot be made. The language is certainly not very happy, but all that was intended was that the Court will not enforce a transfer which would have the effect of carrying out its unlawful object. That is quite consistent with the well established doctrine of law already referred to. But we do not see that a farther inference can be drawn that a person who made such a transfer for an immoral consideration, and who has achieved his object by that transfer can say now 'I have achieved my unlawful and immoral object and the Court must give me back the property.' That would be going directly against the policy which this very clause seeks to enunciate. We must overrule this contention and the appeal must be dismissed with costs.
4. I agree and only desire to notice one of the grounds of the lower Appellate Court's decision. The lower Appellate Court held that the suit document was executed in consideration of future cohabitation between the first defendant and the second defendant, but it went on to bold that such an agreement was not for an immoral purpose, become concubinage is not usually regarded as immoral in the caste to which the parties belong. We do not think that that is a proper test. It is not suggested by the lower Court that there is any question of concubinage in this case being regarded' as equivalent to marriage and no reason has been shown why we should so regard it. The lower Court was not at liberty to rely on the sentiment of one section of the community as decisive with reference to a matter of ordinary morality. On such a matter, the law must have regard to the sense of the community as a whole.