Sundaram Chetty, J.
1. This second appeal arises out of a suit, brought by the plaintiff (respondent) for the recovery of a sum of money alleged to be due to him from the defendant under the pro-note Ex. A. The case set up in the plaint was, that this pro-note was executed in consideration of a sum of Rs. 400 paid to the defendant in cash. That case he failed to make out, and it is clear from the judgment of both the lower Courts that they disbelieved the plaint version as to the form of the consideration, and they have held that the suit pro-note was given in consideration of past cohabitation which the defendant had with a dancing girl named Chinnathayi. In the view that such a consideration for the pro-note is not illegal, a decree has been given in favour of the plaintiff.
2. It is now argued for the appellant, that once the Court below found that the plaintiff failed to prove that the pro-note was supported by consideration as alleged in the plaint, the suit should have been dismissed, without going into the question whether the consideration alleged by the defendant for the execution of the suit pro-note is true and valid. If a strict view of the pleadings is taken, any variance between the pleading and the proof would be a good ground for rejecting the case. However, this case may be decided even upon the finding of the Courts below that the real consideration for the suit pro-note was not a cash loan, but, on the other hand, it was executed in consideration of the defendant's past cohabitation with a dancing girl. The question now to be decided in view of this finding, is, whether the consideration for the suit pronote is immoral within the meaning of Section 23, Contract Act, and if so, whether it is enforceable against the defendant.
3. Section 23 declares that the consideration or object of an agreement is lawful unless the Court regards it as immoral or opposed to public policy. Section 2, Clause (d) of the Act states that if at the desire of the promisor, a promisee has done or promised to do something, such act or promise is consideration for the agreement. According to this definition, the services rendered by the dancing girl to the defendant which would come under past cohabitation would be as much a consideration for the pro-note as a promise on her part to have future cohabitation with him. There is no doubt that, where the object of an agreement is future cohabitation, it is tainted with immorality. The question is, whether the consideration would not also be immoral within the meaning of the section, if it should be past cohabitation. In the treatise on the Indian Contract Act by Pollock and Mulla, 5th Edn., the learned authors observe in connexion with Section 23 at p. 162, that a consideration which is immoral at the time, and therefore, would not support an immediate promise to pay for it, does not become innocent by being past. It seems to me that the test to be applied for deciding, whether a particular thing is immoral or not, is not whether it is a past action or one in future contemplation. It would not be quite logical to draw a distinction between the two, for the taint of immorality exists in either case. The decisions of the Bombay High Court reported in Hussainali v. Dinbai : AIR1924Bom135 , and Kisendas v. Dhondu  44 Bom. 542, clearly lay down that even if the consideration be past cohabitation, it would not be valid under Section 23, Contract Act, and therefore the contract would be unenforceable. Reference was made to these rulings in the judgment of the lower appellate Court, but it tried to distinguish them on the ground that the connexion was found to be adulterous in those cases. In my opinion, the fact that it was an adulterous connexion would make it illegal besides being immoral. In the present case, there is no doubt that the connexion was immoral, though it would not come within the purview of any section in the criminal law. If the Court regard this as immoral, then the consideration must be taken to be obnoxious to Section 23, Contract Act. The only decision which was relied on by the lower appellate Court for holding that the suit pro-note is valid and enforcer able is the decision reported in Lakshminarayana Reddiar v. Subhadri Ammal  13 M.L.J. 7. In the first place, I should observe that in that case the plea was that the pro-note was executed for the purpose of future cohabitation, It was found that the defendant failed to prove that plea. At p. 12 Bhashyam Ayyangar, J., observes that
the pro-note will be illegal as tainted with immorality, only if the consideration therefor be future cohabitation or both past and future cohabitation.
4. Then the learned Judge proceeds to deal with the view under the English law and states that
a promise made in consideration of past illicit cohabitation is void for want of consideration tinder the English law.
5. After stating this principle of English law, there is the further observation, namely:
There is, however, no illegality in such promise but merely absence of consideration and, therefore, according to English law if made in the form of a bond or covenant under seal, there is prima facie a valid contract.
6. An immoral consideration under Section 23 of the Act would, in my opinion, be different from the absence of consideration. In the view that it would only amount to absence of consideration, it was hold that the case could come under Section 25 (2), Contract Act, as a promise to compensate a person who has already voluntarily done something for the promisor. In this case, what we have to see is, whether the pro-note in question is one executed without any consideration at all, or, whether, the consideration for the case is tainted with immorality. In the former alternative, it may come under Section 25, Clause 2, but in the latter alternative, the case would be governed by Section 23, Contract Act. In the aforesaid decision, it does not appear that the question was considered with special reference to Section 23, nor is there an express observation to the effect that, if the consideration be past cohabitation, it would not be immoral or illegal.
7. For these reasons, I should hold, with great respect, that the decision in Lakshminarayan v. Subhadri Ammal  13 M.L.J. 7 cannot be applied to the present case, and the view expressed in the Bombay decision is clear on the point and I am in full agreement with it. I therefore hold that the consideration for the suit promissory note being immoral within the meaning of Section 23, Contract, Act, the claim under it is unenforceable. In the result, the decree of the lower appellate Court is reversed, and the plaintiff's suit is dismissed with costs in all the Courts.