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(Dasari) Lakshmiayya Vs. (Koppolu) Murahdri and anr. - Court Judgment

LegalCrystal Citation
Subject Civil; Property
CourtChennai
Decided On
Reported inAIR1930Mad547
Appellant(Dasari) Lakshmiayya
Respondent(Koppolu) Murahdri and anr.
Cases ReferredAtikulla v. Habibulla
Excerpt:
- - it is clearly an absolute conveyance. 7, is still good law. i am clear accordingly that the district munsiff was right in excluding proof of the alleged agreement set up by the plaintiff and it would have saved a good deal of time here if the learned advocate had followed the course taken in the lower court and given up the point too. it is well settled that if the illegality of a transaction is brought to the notice of the court the court will not assist the person who invokes its aid even though the defendant has not pleaded the illegality and does not wish to raise that objection......upon her but merely to afford security for her maintenance as long as she lived with him. the sale deed recites a consideration of rs. 1,500 and it was defendant 1's case that this money actually passed. defendant 2 is a purchaser of the suit property from defendant 1. defendant 1 further denied that the plaintiff had been keeping her. the district munsiff found that relations of this character had subsisted between them, that defendant 1's allegation with reference to the consideration of rs. 1,500 was untrue and that the plaintiff was precluded by the terms of section 92, evidence act, from establishing his plea that the transaction was other than the sale deed makes it out. he then found upon the evidence that there was a valid transfer and that the consideration for it was past.....
Judgment:

Curgenven, J.

1. The plaintiff sued to set aside a sale deed which he executed to defendant 1, a dancing girl, upon the allegation that it was intended not to confer an absolute title upon her but merely to afford security for her maintenance as long as she lived with him. The sale deed recites a consideration of Rs. 1,500 and it was defendant 1's case that this money actually passed. Defendant 2 is a purchaser of the suit property from defendant 1. Defendant 1 further denied that the plaintiff had been keeping her. The District Munsiff found that relations of this character had subsisted between them, that defendant 1's allegation with reference to the consideration of Rs. 1,500 was untrue and that the plaintiff was precluded by the terms of Section 92, Evidence Act, from establishing his plea that the transaction was other than the sale deed makes it out. He then found upon the evidence that there was a valid transfer and that the consideration for it was past cohabitation of defendant 1 with the plaintiff. He accordingly dismissed the suit. The plaintiff appealed to the District Court, Guntur, and the learned vakil who appeared for him conceded it to be true that the plaintiff had been keeping defendant 1, who did not dispute that her version with regard to the consideration was untrue, and further agreed that the view of the District Munsiff that Section 92, Evidence Act prevented the plaintiff from establishing his case was correct. Both the lower Courts, I may add, have found that the sale deed could not have been executed merely nominally in order to screen the properties from creditors (a plea not actually raised in the plaint) but that it was intended to be acted upon. The only argument that remained for the learned District Judge to consider, therefore, was whether on the finding that the consideration consisted in previous cohabitation the plaintiff was entitled to a decree because this was an immoral purpose.

2. The grounds raised here in second appeal are firstly that the pleader who appeared for the plaintiff was wrong in giving up the argument with regard to Section 92 and secondly that the finding as regards previous cohabitation upon which the lower Courts acted runs counter to the pleadings.

3. Upon the first of these points a number of cases have been cited to me to establish the principle that an erroneous admission upon a point of law made by a legal adviser does not bind his client, and stated in the abstract, there is no doubt ample authority, as, for instance, Krishnasami Ayyangar v. Rajagopala Ayyangar [1395] 18 Mad. 73, Rama Iyengar v. Kasanivendi Iyengar : (1912)23MLJ327 , Beni Pershad Koeri v. Dudhnath Roy [1900] 27 Cal. 156, and Secy. of State v. Silaprasad Jana [1918] 27 C.L.J. 447. Whether this doctrine extends to such circumstances as the present, where to re-open the topic which was closed might entail the remanding of the case to the lower Court for a further finding on facts I am not very clear. The inconvenience of allowing such an indulgence is manifest. I decided, however, to hear what the appellant had to say upon the application of Section 92, Evidence Act, and in view of what I propose to hold the other question may remain open. The sale deed Ex. 1 professes to sell to defendant 1 wet land for Rs. 1,500 the amount having been received and delivery having been given. It declares her free to keep the same in her possession thence forward and the plaintiff promises that neither he nor his heirs shall raise any dispute in respect of it. It is clearly an absolute conveyance. It is equally clear that the document of the nature referred to in the plaint would be of a totally different character. It can scarcely be doubted, therefore, that proof of any oral agreement to show that the sale deed is in fact a document of that character would be excluded by the terms of Section 92. It is sought to bring the case under proviso 6, which says that

any fact may be proved which shows in what manner the language of a document is related to existing facts.

4. I have been shown no authority by which a transaction in any degree resembling that now before me has been bold provable under proviso 6. There is a recent case, Venkataratnam v. Venkatasami : AIR1929Mad807 , decided by Anantakrishna Ayyar, J., in which land was sold for Rs. 2,000. So far as I understand that case it was quite unnecessary to impugn the true nature of the sale and the matter turned upon whether a certain unregistered kararnama Ex. 1, to be read with the sales deed, was admissible in evidence, The learned Judge held that it was. There is a series of cases illustrated by the two Privy Council cases Narasingerji v. Parthasarathi Rayanim Garu A.I.R. 1924 P.C. 226, and Baijnath Singh v. Hajee Vally Mahomed A.I.R. 1925 P.C. 75, relating to mortgage by conditional sale. I think that what all those cases are authority for is the position that the surrounding circumstances must be looked into in the construction of a document of doubtful tenor. There is no question in them of a contemporaneous oral agreement contradicting the terms of the document. As their Lordships stated in the latter of the two cases cited above, in the view taken of the case neither Section 92 nor the ruling under the section, Balkishen Das v. Legge [1900] 22 All. 149, has any application. Khankar Abdur Rahman v. Ali Hafez [1901] 28 Cal. 256 has not I think, been followed in Madras where for all that I have been shown Achutaramaraju v. Subbaraju [1902] 25 Mad. 7, is still good law. The point made in the latter case is that proof of such conduct could be relevant only on the ground that the conduct leads to the inference that there was a contemporaneous oral agreement or statement between the parties that the absolute sale deed was to operate otherwise than appeared upon its face, and accordingly that such evidence must be excluded if the terms of Section 92 are not to be circumvented. I am clear accordingly that the District Munsiff was right in excluding proof of the alleged agreement set up by the plaintiff and it would have saved a good deal of time here if the learned advocate had followed the course taken in the lower Court and given up the point too.

5. The second point relates to the finding that past cohabitation formed the consideration for the sale deed. It is true that this was the case of neither of the parties and in ordinary circumstances it would no doubt be irregular for the Court to record and act upon such a finding. The circumstances, however, are peculiar, inasmuch as the finding involves the plaintiff having executed the document for an immoral consideration. The learned District. Judge has adverted to the point in his judgment apparently in response to an objection taken there such as is taken again here and what he says virtually is that the Court, finding a certain set of circumstances to exist and to show that there was an immoral aspect to the bargain, is not bound to give the plaintiff a decree. I think that although neither of the parties pleads these circumstances it is open to, if not incumbent upon, the Court to dismiss a claim which appears to be so tainted. This is laid down in Atikulla v. Habibulla [1919] 30 C.L.J. 241 (of 53 I.C.) in the following terms:

It is well settled that if the illegality of a transaction is brought to the notice of the Court the Court will not assist the person who invokes its aid even though the defendant has not pleaded the illegality and does not wish to raise that objection.

and authority for this view is quoted. I cannot find accordingly, if the evidence shows that there was a consideration of this character, that the Courts have committed any irregularity in proceeding upon that footing. The learned District Judge has gone on to discuss whether the plaintiff was in pari delicto with defendant 1 and has answered that question in the affirmative. It is unnecessary for me to go over again the authorities which ha has cited as I am in agreement with him upon the conclusion of law reached

6. On these grounds I consider that the dismissal of the plaintiff's suit must be upheld, The second appeal is dismissed with costs.


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