1. The suit out of which the appeal arises was instituted in forma pauperis by the appellant Saradambal Ammal for a declaration of her title to the suit house and for recovery of possession of the same from the respondent-defendant, Thiru Natesa Mudaliar, with past and future profits.
2. It is not disputed in appeal that the appellant is the legally wedded wife of one Mottayan, that the said Mottayan is still living and that she has two sons out of the said union. She was admittedly living as his permanent concubine, with the respondent in the latter's house from the year 1946; nor is it disputed that, on 16th May, 1951, the respondent settled the house on the appellant by means of a registered settlement, copy of which is Exhibit A-1 and that, subsequently on 5thji August, i960, a rectification deed styled as a release deed (registration copy I Exhibit A-3) was executed in her favour by the respondent as well as Thiru Palaniswami from whom they respondent had purchased the property It is also seen that the respondent had cancelled the settlement deed by a deed of revocation (registration copy Exhibit A-5) dated 27th March, 19613a after the appellant had left him.
3. The appellant's case in the plaint was that the settlement deed in question' was executed by the. respondent in her favour out of natural love and affection that the respondent put her in possession of the suit house immediately thereafter, that she had been enjoying the said, house by paying taxes and other public dues and that, subequently, she built in the rear portion of the backyard by spending her own moneys and that, when she mortgaged the suit house with the Go-operative Urban Bank Limited, Tiruvannamalai, the respondent acknowledged the title by attesting the deed of mortgage. The rectification deed also contains as acknowledgment by the respondent of her title and it was she who paid the consideration to the original owner Palaniswami for the rectification. When misunderstanding arose between her and the respondent in the year 1961, the respondent drove her out of the house as she refused to reconvey the property to him. The deed of revocation is illegal and is of no consequence and she continues to be the owner of the suit property by virtue of the deed of settlement.
4. The suit was resisted by the respondent on various grounds. The settlement deed in question was a sham and nominal document not intended to be and was not in fact acted upon. The respondent continued to be in possession and enjoyment of the house in his own right after the settlement, paying taxes etc. There was no transfer or divestment of title or possession. The suit property is the joint family property belonging to him and his son Jawahar, having been purchased with joint family funds and the settlement deed is therefore invalid. The settlement is illegal, void and opposed to law, public policy and morals, as it was executed in consideration of the adulterous living of the appellant with the respondent and on condition of her agreeing to continue her immoral adulterous life with him till the end of her life. The purpose and object for which the settlement was executed was illegal and opposed to public policy and the transaction is therefore void, unenforceable and a nullity. After the settlement, the respondent effected improvements to the suit house, built the first floor and put up a terraced construction on the vacant portion of the backyard of the house with his own moneys; he had spent more than a sum of Rs. 10,000 towards that purpose. The appellant had no means of her own and the borrowings from the Cooperative Urban Bank Limited, were done by the respondent and the money was taken by him for his own business. It was the appellant who left the house stealthily and was living since then with her paramour Dakshinamoorthy. By way of abundant caution, the respondent had revoked the settlement deed and the appellant has no title to the property. In any event, the appellant is not entitled to recover possession without paying the respondent the sum of Rs. 10,000 spent by him on the improvements and additions to the house.
5. The learned trial Judge has found that the suit property is the self-acquired property of the respondent, that the settlement is not a sham and nominal document as contended for by the respondent, that the settlement deed, however, was executed for an immoral object, viz. future adulterous illicit cohabitation of the appellant and the respondent, that the transaction is therefore void in law and unenforceable and is a nullity, that the improvements and additions were effected by the respondent by spending his own moneys to the extent of Rs. 3,750, that the revocation by the respondent is not legal, that the appellant was not entitled to recover the suit property and that, if the appellant was entitled to recover the same, she can take it on payment of Rs. 3,750 to the respondent who had caused the improvements, etc. to the suit house.
6. In appeal, learned Counsel for the respondent did not dispute the findings of the learned trial Judge that the suit property was the private property of the respondent, that the settlement deed was not a sham and nominal transaction, and that it was incompetent for the respondent to revoke the settlement deed, nor did the learned Counsel for the appellant question the finding that it was the respondent who had effected the improvements and made the additions to the suit house out of his own funds and that a sum of Rs. 3750 was spent by the respondent in renovating the suit house.
7. The only points urged in the course of the hearing before this Court relate to the validity of the settlement deed, the right of the appellant to file the suit, and the liability of the appellant in case of her success to reimburse the respondent of the value of the improvements the respondent had effected to the suit house.
8. As the settlement deed is sought to be interpreted in different ways by the respective parties, it is desirable to set out the material passages in the document in Tamil. The material passages are the following:
9. Learned Counsel for the appellant contends that the settlement deed having been effected by the respondent out of natural love and affection entertained by him towards the appellant, the transaction is valid in law, that the stipulation in the document to the effect that the appellant should have lived with him thereafter was not the object or consideration for the transaction which is a gift, pure and simple, but must be treated as a condition subsequent and that the condition being immoral will be void and the disposition by way of gifts will stand unassailed. A further point was raised in the course of arguments that, as the appellant was undoubtedly in possession of the suit house till the year 1961, the appellant is entitled, on the strength of possessory title, to succeed straightaway and is not bound to rely upon the tainted gift at all for establishing her claim to recover possession.
10. Learned Counsel for the respondent on the other hand, urges that the transaction though styled a settlement is really a transfer for consideration, that the consideration for the transaction being one for future illicit adulterous cohabitation, is immoral and illegal and opposed to public policy, that, in any event, the object of the transaction being immoral and illegal, the transfer, even viewed as a gift, would be hit by the provisions of Section 6(a) of the Transfer of Property Act, and that as. the cause of action is based upon the illegal transaction, the appellant is precluded in law from asking for the relief of possession of the suit property.
11. I shall now refer to the relevant provisions of the Indian Contract Act and the Transfer of Property Act, and the relevant decisions thereon cited by the learned Counsel on both sides.
12. Section 23 of the Indian Contract Act, 1872, runs as follows:
The consideration or object of an agreement is lawful, unless it is forbidden by law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.
13. Every transfer inter vivos is preceded by a contract to transfer and if such contract is void as being for an unlawful object or consideration within the meaning of Section 23 of the Contract Act, the transfer which rests upon such contract must also be void. This is what is enacted in this section.
14. Section 2(d) of the Contract Act defines consideration for the promise thus:
When at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or abstain from doing something, such act or abstinence or promise is called a consideration for the promise.
15. These words are taken from the common form of pleading in England where the expression 'at the request of is commonly used. Request means such a request as would be necessary to support an action on the ground of an implied promise.
16. The word 'object' does not mean the same thing as 'consideration'. It means the end aimed at; the thing sought to be accomplished; the purpose or design behind an action. In Webster's International Dictionary, 'object' is defined thus: 'That on which the purposes are fixed as the end of action or effort; that which is sought for. To illustrate: If A, while in insolvent circumstances, assigns to B for a consideration of Rs. 100 paid the benefits of certain contracts in his favour with the object of defrauding the creditors of A, the consideration is lawful but the object is unlawful.'
17. 'Motive' is not the same as thing as an 'object'. Motive means that which stimulates or incites an action; the mainspring of human action; some cause or reason. Thus the motive of the consideration for and the object of an act should be distinguished.
18. Section 25 of the Indian Contract Act, 1872, provides that an agreement made without consideration is void unless (1) it is expressed in writing and registered under the law for the time being in force for the registration of documents and is made on account of natural love and affection between parties standing in a near relation to each other, or unless (2) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do. In any of these two cases such an agreement is a contract. Explanation states that nothing in the section shall affect the validity, as between the donor and donee, of any gift actually made.
19. The effect of Section 6(k)(ii) of the Transfer of Property Act is that a transfer based upon an agreement will be valid only if both the consideration for and the object of the transfer are lawful. A gift being a transfer without consideration, no question as to the lawfulness or otherwise of its consideration can arise at all. Therefore in adjudging the validity of a gift, the only matter which has to be considered is the nature of its object when it was actually made and whether it was lawful; if it was lawful the transfer under the deed of gift, must be upheld.
20. Section 122 of the Transfer of Property Act, 1882, defines gift as the transfer of certain existing moveable or immoveable property made voluntarily and without consideration by one person called the donor, to another called the donee, and accepted by or on behalf of the donee.
21. The question whether a document is a gift or a transfer based on an agreement often creates difficulty.In Thasi Muthukannu v. Shanmughavel Pillai : (1905)15MLJ286 , the following test is laid down. Whether a document is a gift or not will depend upon the intention of the parties and the facts of the particular case.
22. There was considerable [[divergence of opinion among the Courts on the question whether past illicit cohabitation would constitute a consideration much less a valid consideration for a transfer based upon an agreement. In Benyon v. Nettlefold 3 Mac. And G. 100, it is observed that bonds or covenants founded on past cohabitation, whether adulterous, incestuous or simply immoral are invalid in law and are liable to be set aside in equity unless there are other elements in the case.
23. In JLakshminarayana Reddiar v. Subadri Animal : (1903)13MLJ7 , it was observed by this Court that past cohabitation is not an unlawful consideration. In Kamberumal Chetti v. Veerapemmal Pillai : AIR1930Mad956 , Ramesam, J., had held that past immoral consideration is good consideration. In Majkuar v. Jasodha Knar I.L.R.(1875) All. 478, it was held that past cohabitation was not immoral under the law then in force and that the agreement was not void for want of consideration. To the same effect is the observation in ML Babo v. Mt. Parbati : AIR1940All385 ,
24. In Abaya v. Yamanappa : AIR1933Bom209 , the decision of the Bombay High Court in Hussainlal v. Dinabai : AIR1924Bom135 , that consideration for an agreement being past cohabitation was unlawful as it was immoral or opposed to public policy was upheld and it was further observed that past cohabitation besides, being immoral is a valuable consideration, for a sale and the sale deed may amount to a gift. While referring to the exception provided by Clause (2) of Section 25, of the Contract Act, it was observed that the word 'voluntarily' found therein would, according to the decision in Sindha Sri Ganpatsinghji v. Abraham I.L.R.(1896) 20 Bom. 755, exclude anything done at the request of the promisor and that it is difficult to. hold that the services rendered by a mistress were rendered otherwise than at the request of the person keeping the mistress.
25. In Istak Kamu v. Ranchod Zipru : AIR1947Bom198 it was laid down that under Section 2(d) of the Contract Act, past illicit cohabitation can be the consideration for an agreement or a transfer of property other than a gift and that such an agreement or transfer is void and if such an agreement precedes a gift and the gift is made in discharge of that agreement, then the gift also is void; but a gift does not require consideration and past cohabitation may be its motive but cannot be its object or consideration. Hence a gift made out of gratitude for or with the idea of compensating past cohabitation is not per se void under Section 6(h) of the Transfer of Property Act read with Section 23, Contract Act.
26. Now, the Supreme Court in Nagarathnamma v. Kunuku Ramqyya : 1SCR43 , has set at rest the conflict of opinion among the High Courts and has made the following observations:
The services of the concubine were given in exchange for promise of a paramour under which she obtained similar services. In lieu of her services, the paramour promised to give his services only and not his properties. Having once operated as the consideration for his earlier promise, her past services could not be treated under Section 2(d) of the Contract Act as a subsisting consideration for his subsequent promise to transfer the properties to her. The past cohabitation was the motive and not the consideration for the transfer. The transfers were without consideration, and were gifts; and the gifts were not hit by Section 6(A) of the Transfer of 'Property Act, by reason of the fact that they were motivated by a desire to compensate the concubine for her past services.
Regarding future illicit cohabitation there is no difference of opinion among the Courts and they are all unanimous in denouncing a transfer made in consideration for or with the object of future illicit cohabitation as illegal and void. In Benon v. Nettlefold 3 Mac. & G. 100, it is laid down that bonds or covenants, if given in consideration of future cohabitation are void in law and void in equity.
27. In Honkuar v. Jasodha I.L.R. (1875) All. 478, it was held that consideration of future cohabitation would be immoral.
28. In Alice Mary Hill v. William Clerk I.L.R.(1905) All. 266, it was observed that a transfer based, on agreement founded on consideration, of future cohabitation was opposed to-public policy.
29. In Ghumma v. Ramachandra Rao I.L.R.(1925) All. 619,. it was held that a transfer for future illicit cohabitation as consideration was illegal and void.
30. In Istak Kamu v. Ranchod Zipru : AIR1947Bom198 a transfer in consideration of future cohabitation is held to be one for an, immoral consideration and therefore void.
31. The question whether past or future illicit cohabitation or both are-the real consideration for the agreement has to be decided upon the construction of the document itself with the help of such extrinsic evidence as may be available to show the relationship of the written agreement to the existing facts. If the evidence clearly discloses that future cohabitation also formed part of the consideration, the transaction would be void and illegal. But if the agreement relates to past cohabitation, it is not rendered invalid by the mere fact of the continuance of cohabitation. Re Wooten Isaccson-Sanders v. Smiles (1904) 21 T.L.R. 89. Kay, J. had observed in Vellance v. Bagden (1884) 26 Ch. D. 353 that mere continuation of cohabitation was not enough-to raise a presumption that the bond was given in consideration of future cohabitation. In that case, the testator, six months before his death, gave a bond to a lady with whom he had cohabited for more than 30 years and continued to cohabit with her till his death, and' there was no evidence that it was in fact given to secure the continuance of cohabitation. There was no reference to cohabitation in the document and no evidence.
32. In the case of gifts, there can be no question of future cohabitation serving as consideration, but future cohabitation can be considered to be an object of the gift, though illegal.
33. I will now discuss the remedies, if any, of the parties to the illegal or immoral transactions. The general maxim applicable in such cases is exdolo malo non oritur actia, no Court will lend its aid to a party who founded his cause of action upon an immoral or an illegal act.
34. The test, as observed in Former's Mart Ltd. v. Milene (1915) A.C. 106, is whether the demand connected with the illegal transaction is capable of being enforced in law and whether the plaintiff requires any aid from the illegal transaction to establish his case; there may be a locus penitentiae.
35. Lord Mansfield in Holman v. Johnson 98 E.R. 1120, has spoken thus:
The principle of public policy is this : ex dolo malo non oritur actio. - No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, then the Court says that he has no right to be assisted. It is upon that ground that the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it, for both parties are equally in fault, potior est conditio defendantis.
36. In Sitaram v. Badha Rai : 1SCR805 , the Supreme Court has enunciated the law in the following terms:
The principle that the Courts will refuse to enforce an illegal agreement at the instance of a person who himself is a party to an illegality or fraud is expressed in the maxim 'in pari delicto potior est conditio defendantis'. The maxim will not apply (i) where the illegal purpose has not yet been substantially carried into effect before it is sought to recover money paid or goods delivered in furtherance of it; (2) where the plaintiff is not 'in pari delicto' with the defendant; (3) where the plaintiff does not have to rely on the illegality to make out his claim. Where the parties are not in pari delicto, the less guilty party may be able to recover money paid, or property transferred, under the contract. This possibility may arise in three situations. (1) The contract may be of a kind made illegal by statute in the interests of a particular class of persons of whom the plaintiff is one; (2) The plaintiff must have been induced to enter into the contract by fraud or strong pressure, (3) A person who is under a fiduciary duty to the plaintiff will not be allowed to retain property, or to refuse to account for moneys received, on the ground that the property or the moneys have come into his hands as the proceeds of an illegal transaction.
37. A classical illustration of a case where the plaintiff may not require any aid from the illegal transaction is one in which he relies upon possessory title as his cause of action for recovery of the property. In Bowmakers Ltd. v. Barnet Instruments Ltd. (1945) 1 K.B. 65 Du Parcq, L.J. had observed thus:
In our opinion, a man's right to possess his own chattels will as a general rule be enforced against one who, without any claim of right, is detaining them or has converted them to his own use, even though it may appear either from the pleadings, or in the course of the trial, that the chattels in question came into the defendant's possession by reason of an illegal contract or to plead its illegality in order to support his claim.
38. The said principle is forcibly illustrated in Sajan Singh v. Sardara Ali (1960) A.C. 167. In that case, the plaintiff, a lorry driver could not under the existing regulations of Malaya obtain a lorry but the defendant was qualified, and as per the arrangement a lorry was purchased by the plaintiff but in the name of the defendant with a permit in the defendant's name. The result was the lorry belonged to the plaintiff but was operated in the name of the defendant. The dispute arose When the defendant entered the plaintiff's house during the Matter's absence and took away the lorry; and the plaintiff brought the suit for recovery. Lord Denning had made the following pertinent observation:
In detinue their Lordships think he (the plaintiff) succeeded. Although the transaction between the plaintiff and the defendant was illegal, nevertheless, it was fully executed and carried out and on that account it was effective to pass the property in the lorry to the plaintiff. The plaintiff had actual possession of the lorry at the moment when the defendant seized it. Despite the illegality of the contract, the property had passed to him by the sale and delivery of the lorry. When he commenced this action, he had the right to immediate possession. Their Lordships think that in these circumstances he had a claim in detinue.
39. The principle can he stated thus : Transfers for an unlawful object or consideration are void, but it does not necessarily follow that the transferor in a transfer made for an unlawful object is entitled to get back the property transferred from the transferee. Where the unlawful object is carried out he cannot get back the property, not on the ground that the transfer becomes legal but on the ground that the Court will not help a particeps criminis. This general rule is in pari delicto potior est, condito possidentis and in such a case Courts Would not act, but would say 'let the estate lie where it falls'. Mucklestor v. Brown (1801) Ves. 52 , Gascoigne v. Gascoigne (1918) 1 K.B. 283. Where however, the transferee sues to obtain possession, the Courts will allow the defendant (i.e., the transferor) to set up the plea of fraud. In such a case, considerations of public policy demand that the issue should be agitated. If the Court finds the fraud established, the Court will let the property stay where it is. Adopting any other course would have the effect of acting upon an instrument which is void ab initio.
Immani Apparao v. Gollapalli Ramatinga-murthi : 3SCR739 .
40. To the general rule that the Courts will not enforce the transfer which will have effect of carrying out an unlawful object, there are three exceptions which are enumerated in Section 84 of the Trusts Act which runs as follows:
Where the owner of property transfers it to another for an illegal purpose and such purpose is not carried into execution, or the transferor is not as guilty as the transferee, or the effect of permitting the transferee to retain the property might be to defeat the provisions of any law, the transferee must hold the property for the benefit of the transferor.
41. Difficulties faced by the plaintiff in enforcing his remedies under a tainted transfer will not, however, arise where the carrying out of the unlawful object is stipulated as a condition subsequent on the failure of which the transfer will cease to have effect. Transfers for an unlawful object or consideration must be distinguished from transfers which are subject to conditions. Section 6 (A) of the Transfer of Property Act provides that a transfer for an unlawful object or consideration within the meaning of Section 23 of the Contract Act cannot be recognised. Section 25 of the Transfer of Property Act deals With transfers to take effect on the happening of conditions which, as agreements, would be void under Sections 23 and 36 of the Contract Act. The condition referred to in Section 25 is a condition precedent, that is, a condition until the fulfilment of which the transfer is not to take effect. If such a condition falls, both the condition and the transfer dependent upon it are void.
42. Section 32 of the Transfer of Property Act deals with conditions subsequent; and an invalid condition subsequent will not divest the interest to which it is attached. A condition which is void as a condition precedent is also void as a condition subsequent.
43. The principles relating to the subject are thus fairly clear and the question is whether the appellant-plaintiff would be entitled to seek the aid of the Court in getting possession of the suit house which had been given to her under the transactions in question. I shall first deal with the contentions raised by the learned Counsel for the appellant relating to the validity of the settlement, etc. and then the additional point raised by him that the appellant was entitled to succeed on her possessory title without being obliged to rely on the tainted settlement deed.
44. The first point for consideration is whether the transaction in question is a gift or an agreement and as I have already observed, this question will depend upon the intention of the parties on the facts of the particular case. The form of the transaction will not be decisive. As observed in Istak Kamu v. Ranchod ipru : AIR1947Bom198 , although a document may be styled as a gift, yet under the proviso to Section 92 of the Indian Evidence Act it is open to a party to prove that there was consideration for it or that it was passed in the discharge of an antecedent agreement. In Thasi Muthukannu v. Shanmugavelu Pillai : (1905)15MLJ286 , the transaction purported to be an agreement of a mortgage for Rs. 1,500; but the Court found that the real consideration was the future continuation of immoral relations and not the monetary consideration recited. The document will be the primary evidence in the case, and Where the operative part of the document is clear and free from ambiguity, no oral evidence will be admissible in ascertaining the intention of the parties. As observed by the Privy Council in Maharaja Manidra Chandra Nandi v. Durga Purshad Singh (1917) 32 M.L.J. 559 : A.I.R. 1917 P.C. 23, in construing the terms of a document, evidence of the intention of the parties thereto is inadmissible and the question is not what the parties may have intended, but what is the meaning of the words which they have used.
45. The material passages in the document have already been set out at page 6 of this judgment and the document clearly recites that he had settled the property because the appellant was his concubine who looked forward to-him for her support and sustenance and because of his firm conviction that the appellant's sons would not maintain and look after her after his death. The document further recites that she however should live with him. The passage shows that the document had been executed by the respondent voluntarily and out of his own free will, without any request or pressure from; the appellant. There is no room to infer that there was an earlier promise by the respondent to settle the property on her.
46. The recitals that he executed the settlement deed because of his firm conviction that her sons would not support her after his lifetime and out of his love and affection for her who was till then his concubine suggest that these circumstances constituted the motive which induced him to settle the property and not any consideration for or object of the settlement. I have already pointed out that past illicit cohabitation can never be the object of a gift and I am not inclined to treat this transaction as having been executed in consideration of past illicit cohabitation. The past illicit cohabitation and the apprehension entertained by the respondent that the appellant would be left uncared for after his death constituted merely the motive for the settlement as distinguished from the object or consideration.
47. Learned Counsel for the respondent however pleads that future illicit cohabitation was the consideration for or the object of the transaction and that,, as the unlawful object had been carried out, it would not be open to the appellant to seek the assistance of Court to obtain recovery of possession of the suit property. Learned Counsel for the appellant, on the other hand, urges that future illicit cohabitation constituted only a condition subsequent and not any consideration for or object of the device and that the validity of the transaction cannot be impeached.
48. The distinction between the terms-'consideration', 'object' and 'condition5 is subtle but real; and the question whether future cohabitation constitutes the consideration or object or condition precedent or subsequent, would depend upon the intention of the parties as gathered from the construction of the terms of the document; and the Courts have, depending upon the terms of the document, viewed future cohabitation as the consideration for or the object of or as a condition attached to the bequest.
49. In Lachminarain v. Wilayat Begum I.L.R.(1878) All. 433, the Allahabad High Court had assumed that future cohabitation was the consideration for the gift in that case and the decision of this Court in hakshmi Narayana Reddiar v. Subadri Ammal : (1903)13MLJ7 , proceeds on the same footing that future cohabitation was the consideration in that case. In Brahmayya hingam v. Mall Ammal : AIR1924Mad849 , the distinction between object and consideration does not appear to have been kept in view. In Alice Mary Hill v. William Clerk I.L.R.(1905) All. 266, already cited, a transaction which contained the words 'out of gratitude to the plaintiff for the past services and with a view that she may continue in my service, I bind myself in case I may dispense with her services to pay' were treated by the High Court as constituting a contract with past and future cohabitation as consideration.
50. In Sabaya v. Temanappa : AIR1933Bom209 , it was held that the object of the transaction was future cohabitation.
51. In Thayaramma v. Sitaramaswami Naidu : (1900)10MLJ214 , cited by the trial Court, the bequest under a will was worded in the following terms:
As your husband does not maintain you, you came over to me and are attending on me and managing my food etc., as suits to my convenience, and as I have none else, as wife, children, etc., I gave away the following properties With my consent. If you should look after me till the end of my life...the properties that may be possessed till then are assigned to you, by means of this will, as your right, after my death, with my free will and consent.
52. This Court treated the bequest as one made conditional on the continuance of immoral relations between the testator and the legatee and held it therefore to be void. The learned Judges have observed that, according to the principles of English law which find expression in Section 114 of the Indian Succession Act (X of 1865), such condition rendered the bequest void and that the same principle had been followed in Section 25 of the Transfer of Property Act in regard to transfers inter vivos and under the Indian Contract Act in regard to contracts.
53. In Ram Samp v. Bela I.L.R.(1884) All. 313 : 11 I.A. 44, the Privy Council dealt with a case of gift of villages which was complete being followed by transfer of possession. Subsequently in a petition to the Collector for ' Dakkil Kharij' between the parties the donor stating the gift added that the gift was made on condition of the wife continuing to be his wife and remaining obedient to him and, to his children, on condition of their adhering to their religion. Their Lordships held that the gift was in fact unconditional because it was complete at the time when the actual transfer took place and the condition was imported only subsequently at the time when mutation of names was sought for and had also made the following pertinent observations:
But even if that was otherwise, assuming a condition and an immoral condition, it would be the condition that is immoral and not the consideration ; and then the case would fall under the general rule of law that a gift to which an immoral condition is attached remains a good gift, while the condition is void .
54. On a fair construction of the terms of the document in question, I am of opinion that the transaction is a gift pure and simple and not an agreement for any consideration. The past illicit cohabitation between the appellant and the respondent was the motive for the settlement and future cohabitation was not intended to serve as consideration or as a condition precedent for a gift to take effect but was intended only as a condition subsequent and not the object of the transaction. It is true that the respondent had contemplated future cohabitation but the question whether future cohabitation was the consideration, object or condition must be determined only by a strict reference to the language used in the settlement deed. I have already set out the material passages of the document at an earlier stage and I am of opinion that the object of the settlement was to make provision for the future [maintenance of the appellant. The terms of the document and the language used do not suggest that future cohabitation was intended to serve as a consideration for the transaction. I am not inclined to accept the contention of the learned Counsel for the respondent that future cohabitation was the object of the transaction. The language used by the respondent forbids such a construction. The recitals in the document show that the respondent had settled the property because of his love and affection for the appellant and of his apprehension that she would be left uncared for by her sons after his death and that he had delivered possession ; and therefore, it cannot be said that future cohabitation was intended to serve as a condition precedent. Transfer was already complete and possession had been delivered and a condition that the appellant could enjoy the property thereafter only if she continued to live with him in future was superadded. I am clear that this is a case of a condition subsequent contemplated by Section 32 of the Transfer of Property Act and that the transfer must prevail and that the condition imposed upon the bequest is void. The decision of the Privy Council in Ram Samp v. Bela (1884) I.L.R. 6 All. 313 (P.C.) : 11 I.A. 44, will apply to the facts of this case. The decision of this Court in Thayaramma v. Sitaramasami Naidu : (1900)10MLJ214 , can be clearly distinguished. It is a case of a condition precedent; the bequest was made under a will and was intended to take effect after the death of the testator only if the mistress had continued to cohabit with him down to his death.
55. In the alternative it is contended by the learned Counsel for the appellant that on the undisputed fact that the appellant was admittedly living in the suit house in pursuance of the title conferred by the settlement deed till the year 1961 when she was driven out, the appellant's case for recovery of possession of the suit property resting as it does on unimpeachable possessory title, cannot be resisted in any manner and that the appellant is not obliged to rest her case upon the tainted settlement deed. It is pointed out that the defendant can succeed only if he can establish a superior title against the appellant and that he can do so. only by relying upon the illegal transaction evidenced by the settlement deed. There is considerable force in this contention. It is not disputed that the appellant was living in the suit house till the year 1961 and I have already pointed out that the decision of the trial Court that the transaction was a genuine one and was given effect to had not been challenged by the learned Counsel for the respondent in the appeal. It is thus established that the appellant was living and enjoying the suit house without any disturbance from the year 1961 as the legitimate owner of the suit property and it is clear that the defendant can resist the appellant's claim for recovery of the suit property only by showing that, as the transaction is immoral and illegal, the appellant had obtained no title under the same and that the respondent's title to the suit property had not been divested in favour of the appellant by the settlement deed. This can be done by the defendant only' by relying upon the settlement deed, in which case the doctrine of in pari delicto potior est conditio defendantis will stare him in his face and will deny him the right of pleading immorrality and illegality of the transaction in defence to the appellant's action.
56. In view of my finding that the transaction in question is a gift pure and simple, that future illicit cohabitation was not the object of the settlement deed but was intended only to operate as a condition subsequent and that the transfer was therefore valid in law and that, in any event, the appellant is entitled to rely upon her possessory title as the cause of action for her suit, it necessarily follows that the appellant is entitled to recover possession of the suit property ; and the second point whether the responden would be entitled to the value of improvements naturally assumes some importance. I have already observed that the learned Counsel for the appellant did not seriously dispute the finding of the trial Judge that it was the respondent who effected the repairs of the value of Rs. 3,750.
The respondent had examined himself and D.W. 4, a mason engaged by him for making the improvements and I do not see any reason to suspect their evidence. The suggestion that the mortgage deed, Exhibit A-2 executed by the appellant in favour of the Bank with a view to borrow money for the purpose of effecting repairs is not impressive in view of the definite averments in the plaint that the appellant executed the said mortgage for discharging her private debts. Admittedly the appellant had brought only petty jewels worth Rs. 200, and her case that she augmented his resources by vending milk for 10 years was rightly discountenanced, as it was made for the first time only at the evidence stage.
57. I am however clear that the respondent is not entitled to ask for the value of the improvements from the appellant. Admittedly there is no contract between the parties that the appellant should pay the cost of the improvements and the respondent had effected the improvements voluntarily. The house was transferred to the appellant for her own residence and maintenance ; and I have already held that the transfer was not a sham and nominal transaction but was really intendded to be given effect to. The appellant was admittedly living in the suit house subsequent to the settlement, and it can therefore be legitimately presumed that, in these circumstances, in the absence of any evidence to the contrary, the respondent had effected the improvements to the house with a view to benefit the appellant. The fact that, apart from the appellant, the respondent had been living in that house with his second concubine and the children can be of no consequence.
58. The appellant will, therefore, be entitled to a declaration that the suit roperty belongs to her; and she is also entitled to a decree for recovery of possession of the same.
59. The claim for past mesne profits and for future mesne profits from the date of the plaint upto the date of the decree was not seriously pressed before us. It is however clear that the appellant will be entitled to mesne profits from the date of the decree of this Court.
60. In the result, the appeal is allowed and the suit is decreed. The appellant's prayer for a declaration that she is entitled to the suit house is hereby granted. The respondent will deliver possession of the suit property to the appellant forthwith and in default the appellant will be at liberty to recover possession of the suit house by executing this decree. The claim for past mesne profits and for future mesne profits till the date of this decree is disallowed and the appellant will be entitled to future mesne profits at the rate claimed in the plaint only from the date of this decree. In view of the complexity of the issues, I direct that each party will bear his or her costs throughout, except that the defendants should pay the Court-fee payable to the Government here and in the Court below.
61. I have perused the judgment of my learned brother. He has discussed the cases (Indian and English) cited at the Bar and in the light of the principles deduced therefrom he has held that the settlement evidenced by Exhibit A-1 cannot be said to be void or unenforceable either as opposed to public policy or as having been executed for an illegal and immoral consideration or for an object which is illegal or immoral. I, however, desire to emphasise that on the established facts of this case, the plaintiff will be entitled to succeed and recover possession of the property even if it should be held, for any reason, that Exhibit A-1, is invalid on the ground that it was executed for an illegal or immoral consideration or for an illegal or immoral, object. In my view, the principle of the Bench decision of this Court reported in. Deivanayaga Padayachi v. Muthu Reddi I.L.R.(1921) Mad. 329 : 39 M.L.J. 525, in which the crucial facts were almost similar clearly applies to the instant case, I may also add that the recent decision of the Supreme Court reported in Surasaibalini v. Phanindra Mohan : 1SCR861 , in which the decision of the Privy Council in Sajan Singh v. Sardara Ali 1960 A.C. 167, and in particular the statement of the law by Lord Denning was referred to with approval tends to the same inference as laid down in Deivanayaga Padayachi v. Mutku Reddi I.L.R. (1921) Mad. 329 : 1921 39 M.L.J. 525. As will be presently seen, the crucial and the relevant facts in Sajan Singh v. Sardara Ali 1960 A.C. 167, though the decision related to moveable property are similar and the plaintiff's right to possession was upheld though it arose out of a transaction between the plaintiff and the defendant, which was illegal. The following statement of law by Lord Denning was quoted with approval by Rajagopala Aiyangar, J., in Surasaibalini v. Phanindra Mohan : 1SCR861 .
In detinue their Lordships think he succeeded. Although the transaction between the plaintiff and the defendant was illegal nevertheless it was fully executed and carried out, and on that account it was effective to pass the property in the lorry to the plaintiff. The plaintiff had actual possession of the lorry at the moment when the defendant seized it. Despite the illegality of the contract, the property had passed to him by the sale and delivery of the lorry. When he commenced this action, he had the right to immediate possession. Their Lordships think that in these circumstances he had a claim in detinue.
62. In the instant case, even assuming that Exhibit A-1 was executed for an immoral or unlawful object or purpose or/and for an illegal consideration of illicit cohabitation, in 1961, when disputes arose, ten full years, of illicit cohabitation have lapsed and the illegal and immoral purpose has been carried out and achieved. The defendant trespassed upon the property, drove out the plaintiff during sometime in March-May 1961 and occupied the entire house. If, instead, of thus taking the law into his own hands and obtaining forcible possession of the house after throwing out the plaintiff, the defendant had instituted an action of his own to recover possession of the property, alleging that the settlement, Exhibit A-1 was void and did not confer any title upon the plaintiff, it is settled law that as the illegal object had been carried out the Court will not render any aid to the defendant. The question is whether the defendant can improve his position by not filing an action himself but taking the law into his own hands and committing trespass. It stands to reason and commonsense that the defendant cannot be permitted to achieve by indirect means what the law will not permit him to do by direct means. Otherwise it will be as intolerable state of law, that the law favours a person who commits trespass taking advantage of his force at the same time exploiting the weakness and helplessness of the opponent.
63. In Deivanayaga Padayachi v. Muthu Reddi I.L.R.(1921) Mad. 329 : 1921 39 M.L.J. 525, the first defendant (paramour) under a settlement deed dated 30th January, 1910, settled on the second defendant (his concubine ) a house and some lands for her maintenance. Both of them cohabited and lived together for five years and in June, 1915, the concubine, the second defendant, created an othi of the land in favour of the plaintiff. The plaintiff filed an action in the year 1917 for recovery of possession from the first defendant alleging that the first defendant, the paramour, had trespassed and dispossessed the plaintiff in October, 1915. The concubine who was impleaded as the second defendant remained ex parte; the plaintiff's rights as othidar, however, rested and depended upon the rights which the concubine obtained under the settlement deed. Both the Courts negativing the contentions of the defendant on the merits held that the settlement deed was a real one and was given effect to. The District Munsif, however, dismissed the suit upholding the defendant's contention that the settlement deed cannot be enforced and no title passed to the plaintiff thereunder as it was for an immoral purpose. The Subordinate Judge reversed the decision holding that in the community to which the parties belonged concubinage was allowed and so the settlement cannot be said to be for an immoral purpose. On appeal by the first defendant, the main contention was that the settlement or transfer to the concubine was void altogether and conferred no title on the concubine as it was made for an immoral purpose or consideration, i.e., future illicit cohabitation. Abdur Rahim, J., who delivered the leading judgment negatived this contention applying the the well-established rule that when a transaction is entered into for an unlawful and immoral purpose and that purpose has been achieved, the Court would not interfere at the instance of the particeps criminis to relieve him of the legal effects of the transaction. The leading English decisions were referred to and the following classical statement of law by Lord Selborne, L.C. In Avert v. Jenkins (1873) L.R. Eq. 275, was quoted with approval and followed:
But the voluntary gift of part of his own property by one particeps criminis to another, is in fact 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 inequity. 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.i that those who violate the law must not apply to the law for protection.
64. The argument of the appellant based upon Section 6(A), Clause (2) of the Transfer of Property Act that the law in India is different was not accepted. While repelling that argument, the learned Judge has observed as follows:
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 further 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 that I have achieved my ' unlawful and immoral object the Court must give me back the property'. That would be going directly against the policy which this very clause seeks to annihilate.
Oldfield, J., agreed with this view but at the same time disapproved the reasoning of the lower appellate Court that the document was valid because in the community to which the defendant belonged, concubinage was allowed and not regarded as immoral. The facts in the instant case are identical and even stronger. There, the othidar filed the suit for possession two years after the trespass by the paramour. Here the suit was filed by the settlee herself within a few months after the trespass. In the instant case, the cohabitation was even for a longer period, for ten years, and the illegal purpose had been achieved to a greater extent. In the course of the hearing, several decisions were cited, in which, in varying contexts the applicability of the maxims in pari delicto potior est conditio possidentis and turpi causa non oritur actio came up for consideration.
65. When confronted with this Bench decision in Deivanayaga Padayachi v Muthu Reddi I.L.R.(1921) Mad. 329 : 39 M.L.J. 525 : A.I.R. 1921 Mad. 326 (2), learned Counsel for the respondent could not advance any argument why the Bench decision does not directly govern and apply to the instant case. This Bench decision of this Court had held the field for about half a century and whenever an occasion arose to consider the scope of this decision it has been followed. Vide Brahmayya ]Lingam v. Kanakamma : AIR1924Mad849 . Till now there has been no dissent - vide also discussion of the law in Mullah's Transfer of Property Act, 5th Edition, page 78. The decision in Deivanayaga Padayachi v. Muthu Reddi I.L.R.(1921) Mad. 329 : 39 M.L.J. 525 : A.I.R. 1921 Mad. 326 (2), is a direct decision and binding upon us and there is no other question but that it has to be followed. Thus it is clear that even though the transfer is void, the transferor cannot claim title to the property on that score, when the illegal or immoral object has been achieved or carried out.
66. In Surasabailint v. Phanindra Mohan : 1SCR861 one P in the employment of the Court of wards erroneously thinking that the rules governing his service did not permit him to carry on any business entered into an agreement with one G in whose name P carried on a prosperous business of a boarding house in the name and style of International Home at Calcutta. Even though the business was carried on in the name of G, it was P who was in management and conducted the business and in actual possession of the boarding house and all the moneys required were furnished only by P; G was merely the ostensible owner of the business. After several years, P was obliged to leave the station on medical advice and at that time he entrusted the management of the business to G with all its assets on the understanding that as soon as P returned G should hand over to the former, possession and management of the business. But after his return when P demanded G to do so, G refused. A suit was brought by for declaration of title and for recovery of possession of the business from G. All the facts were found in favour of P and the claim of G that he was not only the ostensible owner of the business but also the beneficial owner thereof was rejected. Even so, G resisted the claim and in both the Courts P succeeded. Before the Supreme Court it was contended on behalf of G that the arrangement for holding out G as the ostensible or nominal owner was made by P in contravention of the service rules as well as to evade the provisions of the Income-tax Act and the agreement entered into between G and P was invalid and P was not entitled to claim possession of the business, the award of which relief involved P relying upon his own unlawful conduct. Gajendragadkar, CJ. and Shah, J., held that the rules of service of P did not prohibit him from carrying on a separate business, though he erroneously thought that there was such a prohibition. The learned Judges also took the view that, at the time when the agreement was entered into, P had no idea of evading or defeating the provisions of the Income-tax Act, though the plaintiff obtained the benefit of a lower rate of tax for the business income and his personal income escaped taxation. In other words, the learned Judges held that at the inception P did not entertain any idea of defeating the provisions of the Income-tax Act, though in the later years, P did secure some benefit, since the business was regarded as that of G. The learned Judges also held that it was not an integral part of the case of P, in order to get relief, to rely upon the arrangement in question, and that plaintiff could be awarded relief even if the initial title of the plaintiff could be rooted in an illegal transaction. Rajagopala Ayyangar, J., (though agreed in the dismissal of the appeal), took a different view and held that the arrangement was motivated by the design to achieve an illegal purpose and the illegal purpose having been effected the maxim in pari delicto potior est conditio possidentis applied. Even so, the learned Judge held that the plaintiff's claim to possession was independent of and wholly dissociated from the illegal arrangement and that the plaintiff was entitled to possession. Rajagopala Ayyangar, J., after referring to the decisions in England and the statement of the law in the leading text books, observed that it was not possible to deduce therefrom the legal position that the plaintiff's suit could never be dismissed even if the object for which the transfer was effected was illegal and the object had been achieved, and that the decision of the Privy Council in Pethaperumal Ghetti v. Muniandi Serva : (1908)10BOMLR590 ,still held the field. That is one aspect of the learned Judge's discussion. The other aspect, which formed the discussion and on which the learned Judge rested his decision is the portion relevant for the instant case, as it rested upon the possessory right of the plaintiff and did not necessarily involve the plaintiff relying upon the illegal and unlawful purpose for which the transaction was originally entered into. It is in this context that the learned Judges' reference to the decision in Sajan Singh's case1, and the principle enunciated therein becomes ' important. In that case, the plaintiff, who was a lorry owner, could not under the existing regulations in Malaya obtain a lorry, while the defendant was one who was qualified to purchase a lorry and accordingly, an agreement was entered into between them under which a lorry was acquired by the plaintiff and registered in the name of the defendant with a permit in his own name, the arrangement being that the lorry should belong to the plaintiff and should be used by him on his own account. The result was that the lorry belonged to the plaintiff, though operated in the name of the defendant. The parties fell out, and one day the defendant entered into the plaintiff's housewhen the latterwas absent, took away the lorry and refused to return it claiming that it belonged to him (defendant). The plaintiff then brought the suit founding his claim in detinue and this claim was upheld by the Privy Council. I have already extracted the relevant statement of the law by Lord Denning in this decision in the opening portion of my judgment; It will be seen that the ground on which the plaintiff's claim was upheld in that (Sajan Singh's) case L.R. (1960) A.C. 167, was that the plaintiff had established his title to the lorry, that the plaintiff had possessory title and that the possessory title was sufficient to entitle the plaintiff to sue the defendant in detinue inasmuch as the plaintiff was deprived of the possession of the lorry. The Privy Council held that the claim based upon the prior possessory title, immediately prior to the dispossession by the defendant was on a totally independent cause of action, wholly separate from the original purchase of the lorry in pursuance of the arrangement conceived to circumvent the regulations in Malaya. It is this principle of upholding the claim of the plaintiff based upon the possessory title which Rajagopala Aiyangar, J., followed and applied. He posed two questions for decision : (i) if nothing more happened, could P the respondent lay claim to possession of the suit property based upon the fact that the purchase money came from him, though the business was put in the name of P in pursuance of the illegal and unlawful purpose ; (ii) whether P the respondent could rest his claim to recover possession of the property on a title wholly independent of this arrangement which was tainted with illegality. The learned Judge did not express any final opinion upon the first question. On the second question, he held that, as the respondent himself was in physical possession of the property, i.e., the hotel and as that physical possession was handed over to the defendant when the respondent left Calcutta, that prior physical possession was sufficient to sustain the plaintiff's claim as that claim was independent of and wholly dissociated from the illegal transaction.
67. From the foregoing, it will be seen that the situation in the instant case is identical. Here too, the plaintiff was in actual physical possession of the property till the defendant dispossessed her. The prior possessory title of the plaintiff for ten years is sufficient to entitle the plaintiff to maintain the suit. It is for the defendant to set up and prove a superior title and, that, he could do, only by proving that the illegality tainted the whole arrangement, that the arrangement was void, that no title passed to the plaintiff despite the settlement deed and that the defendant always continued to be the owner. In other words, the defendant is obliged to unfold the illegality of the transaction, relying upon the illegality, with a view to prove his superior title, and thus defeat the title of the plaintiff. The law will not permit the defendant to raise such a plea, which meant hat he will not be permitted to put forward a superior title. The plaintiff's possessory title, therefore, has necessarily to prevail.
68. In this connection it is relevant to quote the following observations of Lord Denning in Sajan Singh's Case L.R. (1960) A.C. 167 .
The reason is because the transferor, having fully achieved his unworthy end, cannot be allowed to turn round and repudiate the means by which he did it - he cannot throw over the transfer. And the transferee, having obtained the property, can assert his title to it against all the world, not because he has any merit of his own, but because there is no one who can assert a 'better title to it.
69. At this stage it will be relevant to iefer to the later decision of the Privy Council in Palaniappa Ckettiar v. Arunasala Chettiar L.R. (1962) A.C. 294. In that case the respondent (father), in order to avoid the rubber regulations of Malaya, which imposed a limit upon a person's holdings of rubber estate, transferred forty acres of land to his son for which no consideration was paid. The father desired to sell the forty acres to a third party and asked his son to execute a power-of-attorney in favour of the father to enable him to transfer the land to the prospective purchaser. The son refused to do so, and the father brought the action, claiming that the son was a trustee in respect of the forty acres and that he was holding the land on trust for the father. The Privy Council held that the father had of necessity to disclose in the proceedings that he had practised a deceit on the public administration of which the Court was bound to take notice, even though the son had not pleaded it, and that the father, therefore, could not use the process of the Courts to get the best of both the worlds - to achieve his fraudulent purpose and also to get his property back. The Court of appeal relying upon its own prior decision in Sardara Ali v. Sajan Singh 23 Malayan L.J. 165, note: this decision went on appeal to the Privy Council in Sajan Singh's case L.R. (1960) A.C. 167, held that the plaintiff's (father's) possible turpitude was no reason for denying the orders which he sought. This reasoning, the Privy Council did not accept. Lord Denning who delivered the judgment, while pointing out the difference in the principle enunciated in Sajan Singh's case 23 Malayan L.J. 165 observed as follows:
The difference, however, is this : In Sardara Ali v. Sajan Singh 23 Malayan L.J. 165, the plaintiff founded his claim on his right of property in the lorry and his possession of it. He did not have to found his cause of action on an immoral or illegal act. He was held entitled to recover. But in the present case the father has of necessity to put forward and indeed, assert his own fraudulent purpose, which he has fully achieved. He is met, therefore, by the principle stated long ago by Lord Mansfield, 'No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act, see Holman v. Johnson (1775) 1 Cowp. 341 . Their Lordships are of opinion that the Courts should not lend their aid to the father to obtain a re-transfer from the son.
Thus it will be seen that, basically, there is a difference between the plaintiff founding his claim on his prior possessory title, a cause of action which is totally disconnected with the illegality, and the plaintiff who has to rely upon the illegal transaction as part of his cause of action. It is clear that the instant case rests upon the ground of distinction clearly brought out by Lord Denning himself, who delivered the judgments in both the decisions.
70. The same principle Was laid down by the Privy Council in the decision reported in Mistry Atnar Singh v. Eulubya (1964) 3 A.E.R. 499 : L.R. (1964) A.C. 142, (a case from Eastern Africa) in which the application of the maxim 'ex turpi causa non oritur actio' came up for consideration as the parties were in pari delicto. In that case, K, an African, agreed to lease three plots to S, an Indian, without obtaining the requisite sanction as provided by the statutes then in force in Eastern Africa and allowed S to remain in possession. In an action by K to recover possession, rent, mesne profits and damages, 5 pleaded illegality arising out of the contravention of the provisions of the statutes. K thereupon abandoned his claim for rent, mesne profits and damages and confined his claim to the relief of possession. The Privy Council held (affirming the decision of the Court of Appeal) that K was entitled to recover possession. The Privy Council observed that the plaintiff's right to possession was in no way based upon the purported agreements and that the plaintiff could Well make his claim (if it were limited to claim for possession) without being under the necessity of setting out the unlawful agreements in his plaint and that he required no aid from the illegal transactions in order to establish his case. The Privy Council also observed that while disputing the plaintiff's right to possession, it was the defendant who needed to reiy on the arrangement to contend that in pursuance of an invalid arrangement he was put in possession of the property and the plaintiff who was a party to that arrangement cannot seek to recover. The Privy Council pointed out that this maxim ex turpi causa non oritur actio would apply only if it became impossible for the plaintiff to recover except through the medium and by the aid of an illegal transaction to which he was himself a party. In this connection, it is useful to refer to the following statement of law in Chitty's Contracts, 23rd Edition 1968, Volume I, paragraph 940 (page 439):
When property has been delivered in pursuance of an illegal agreement and there is subsequently a dispute about the property between the transferor and the transferee, the question often arises whether the Court should give effect to the transferee's original rights. The fact that by reason of illegality the transferee could not have enforced the agreement under which the transfer was made does not necessarily mean that delivery to him of property thereunder will not pass to him the property or the interest in question. Thus, where goods are delivered in pursuance of an illegal contract of sale, the property never passes to the purchaser who will be entitled to damages against any one, including the vendor, who transfers wrongfully and deprives him of those goods.
See also the discussion about limits to the application of the maxim ex turpi causa non oritur actio, same volume in paragraph 932, page 435. It is also necessary to refer to the decision of the Supreme Court in Imani Appa Rao v. Ramalinga-murthi : 3SCR739 , in which the Supreme Court had considered the true principle applicable in the situation of a battle of the following legal maxims viz., (1)' dolo malo non oritur actio, (2) ex turpi causa non oritur actio, (3) Nemo allengans suam tmpitudinehur audiendus est and (4) in pari delicto potior est conditio possidentis. In that case, on the insolvency of the second respondent in the appeal, a secret fraudulent arrangement Was entered into between the second respondent and his brother, who was the appellant, on the one side and the respondent on the other, as a result of which properties were manou-Vered to be purchased by the first respondent in the insolvency sale. But, despite the sale, the appellant and the second respondent alone continued in possession and respondent 1 never obtained possession of the properties at any time. When disputes arose, respondent 1 filed a suit for recovery of possession of the properties purchased by him in the insolvency sale. Respondent 1 relied upon the sale deed in his favour, his apparent title, to recover possession of the property. In the course of the trial, the second respondent brought out the fraudulent scheme in pursuance of which the properties were fraudulently purchased in the insolvency sale in the name of the first respondent and contended that in these circumstances the first respondent would not be entitled to the relief of possession. The Supreme Court upheld this contention and held that respondent 1 could not be permitted to have the active assistance of the Court in recovering the properties possession of which had been withheld from him by respondent 2 and the appellant. The Supreme Court observed that if the defence raised by respondent 2 was shut out and if the first respondent was unable to get a decree because there was an ostensible deed of conveyance, which purported to convey title to him in respect of the properties, it would amount to passing a decree in favour of the first respondent by rendering active assistance to a confederate in the fraud. The argument on behalf of the first respondent was that on the facts of the case it was the maxim nemo allegans suam turpitudinem audiendum est, that is, ' whoever has first to plead turpitudinem should fall', that applied, and in that case it was the second respondent who had first pleaded fraud and should therefore fail. From this decision it will be seen that no uniform rule can be formulated as to which of the conflicting maxims would apply when a scheme of fraud and an arrangement as opposed to public policy, has been carried out. The Supreme Court observed that the course that should be adopted in a given case will be that which is less injurious to public interest than the alternative course of giving effect to the fraudulent transfer. It is significant to mention that the Supreme Court in reaching this decision, has emphasised the fact that in that case the transferee (first respondent) never obtained possession of the properties at any time and was not in possession, so that there was no scope for protecting the prior possessory right of the plaintiff as in the two decisions Sajan Singh v. Sardara Ali L.R. (1960) A.C. 167, and Mistry Amar Singh v. Kulubya L.R. (1964) A.C. 142.
71. I have so far discussed the question as to how far the plaintiff could be awarded relief on the basis of a possessory title springing from the settlement deed, Exhibit A-1 of the year 1951. In my view, the plaintiff would also be entitled to maintain the suit, resting her case on the release deed, Exhibit A-3 dated 5th August, 1963, executed by the defendant and one A.K.N. Palanisami and in this process the plaintiff would not be confronted with the problem of herself being a party to an illegal or immoral transaction; i.e., Exhibit A-1, because Exhibit A-3 by itself would be sufficient for the plaintiff. Exhibit A-3 recites that the plaintiff is the absolute owner of the property in pursuance of the deed of settlement and that the property has been in the actual possession and enjoyment of the plaintiff and that the later deed, Exhibit A-3 was executed in pursuance of the mediation of Panchayatdars. The document recites that the two executants have received the sum of Rs. 50 and in consideration thereof they have no objection whatever in the plaintiff enjoying the suit property (property mentioned in the schedule appended to Exhibit A-3) as hitherto enjoyed by the plaintiff, absolutely with all powers of alienation. It is not in dispute that the description of the property in this settlement deed covers the suit property.
Though styled a release, this document, is executed on receipt of a consideration of Rs. 50 and in unambiguous terms it declares that the plaintiff is entitled to be in possession and enjoyment of the property and that Palaniswami and the, defendant will not raise any objection thereto. It cannot be disputed that the plaintiff can claim title and right to, possession of the property, relying upon Exhibit A-3 alone, without being obliged to rely upon the prior settlement deed Exhibit A-1. It is sufficient to refer to the decision of the Supreme Court in 7. Hamdo v. K. Ramunni : AIR1966SC337 , in which the Supreme Court has pointed out that the nomenclature of the deed and the amount of stamp duty are not decisive of the question and that the document, though styled as a release deed, would be sufficient to operate as a conveyance if it was for a valuable consideration. Bachawat, J., delivering the judgment, has at page 340 referred with approval to the decision in Hemendranath Mukherjee v. Kumar Math Roy 12 C.W.N. 478, in which it was held that a registered deed of disclaimer by which the executants relinquished all their right, title and interest in the property in consideration of the release discharging certain debts of the executants, would be sufficient to operate as transfer. The same view was taken in a later decision of the Supreme Court in Kuppustaami v. Arumuga : 1SCR275 . In that case, the deed, though styled as a release, contained the language that the releasee shall hold and enjoy undisputedly with absolute rights the properties mentioned in the deed of release and the Supreme Court held that the document, though styled a release, was sufficient to convey title. It is also necessary to mention that even the doctrine that a deed of release could feed the title though cannot transfer title, is applicable to the instant case, because at the time of the release the plaintiff was in possession of the property and had undoubtedly title to the property, even assuming that there was any defect in it by reason of the illegality attaching to the transaction. This deed of release, Exhibit A-3, is referred to in the plaint. If Exhibit A-3 is therefore sufficient for the plaintiff to maintain the suit, it is the defendant who will be obliged to rely upon Exhibit A-1 and set up the illegality of the original transaction. From the foregoing discussion, it is clear that the defendant should fail, because he has to first plead turpitudinem i.e., the defendant fails because he has to first allege fraud in which he participated.
72. The claim for profits, past and future was not seriously pressed before us.
73. The result is that the appeal will have to be allowed and there should be a decree for possession in favour of the plaintiff. The plaintiff, however, will be entitled to mesne profits from the date of decree of this Court. I agree with my learned brother that under the circumstances of the case the parties should bear their respective costs throughout except that the defendant should pay the Court-fee due to the Government both here and in the trial Court.