64. The important question to be decided in this appeal is whether the plaintiff could take an advantage of the immoral relations which he claimed to have established between himself and defendant No. 1, even according to his own story. Mr. Karmali, the learned counsel for the appellants, submitted that the learned Civil Judge has not applied his mind to the three decisions which are referred to by him or to the law regarding the effect of immorality vitiating the agreements and transactions under Section 23 of the Indian Contract Act, read with Section 6. Clause (h) of the Transfer of Property Act.
65. He argued that, instead of supporting the conclusions of the learned Judge, the decision, of the Division Bench of this Court in Sabava Yellappa v. Yamanappa Sabu, 35 Bom LR 345: (AIR 1933 Bom 209), lays down that a suit for the recovery of possession of property transferred under a sale deed, the consideration or object of which was immoral, i.e. past or future cohabitation, though void under Section 23 of the Indian Contract Act, and Section 6(h) of the Transfer of Property Act, the principle of equity contained in the maxim 'in pari delicto potior eat conditio possidentis' i.e. where each party is in fault law favours him who is actually in possession must apply.
66. Mr. Karmali submitted that in that case it was laid down, categorically relying on the decision in Ayerst v. Jen-kins (1873) 16 Eq Cas 275, that the Court in such a case was prevented from aiding a person who was guilty of immoral conduct, to recover property on the ground of public policy. In other words. Mr. Karmali submitted that as the plaintiff in this case sought to succeed only on the basis of the proof of the immoral relations between the plaintiff and defendant No. 1 prior to and subsequent to the sale-deed, his suit should be dismissed applying the said maxim of 'in pari delicto potior est conditio possidentis.'
67. Mr. Kanade, the learned counsel appearing for the plaintiff, tried to repel these arguments relying on the decision of another Division Bench of this Court in Istak Kamu Musalman v. Ranchod Zipru Bhate, , where it was laid down that where, a transaction
though completed is intended to be for consideration, it can be impeached if the consideration is immoral, and it makes no difference whether the transaction is executory or executed.
68. He relied upon the decision of the Calcutta High Court in Pranballay Saha v. Sm. Tulsibala Dassi, , where a
distinction -was made between the English and the Indian Law which made an agreement or transfer whose consideration or object was unlawful, void; and it was held that in a suit where the owner of a house lets out the property to the defendant for the immoral purpose of running a brothel, the executors and trustees of the will of the owner, who were not in pari delicto or in particeps criminis can sue to eject the defendant on the basis that the transfer is void and the court will accord relief to the claimants.
69. Mr. Kanade also referred to the decision of the Supreme Court in Firm Sriniwas Ram Kumar v. Mahabir Prasad, , and
submitted that although the plaintiff had originally pleaded that the sale-deed was liable to be set aside on account of undue influence practised by defendant No. 1, it was open to the plaintiff to rely upon the finding of the lower Court that the object of the agreement of sale or of the sale-deed was future immoral cohabitation between the plaintiff and defendant No. 1.
70. He also relied on the decision in Dwaramoudi Nagaratnamb v. Kunuku Ramayya, and contended that only in certain cases
where past consideration was the motive and not the consideration for the transfer, transfers were held to be by way of gift which were valid, and where, as in the present case, the object or consideration was for future cohabitation, original title of transferor remained unaffected by a sale-deed tainted with such immorality.
71. A discussion of these rival contentions must begin with the leading English case on the point in Ayerst v. Jen-kins, (1873) 16 Eq Gas 275. In that case Mr. William Hardinge, a widower of mature age, having agreed with Isabella Buckton, the sister of his deceased wife, to cohabit with her under colour of a fictitious marriage (both parties must be taken to have known that a real marriage was impossible, under the English law at that time and there is no suggestion of fraud, deceipt. or mistake, on either side), transferred on the 16th of September. 1861, into the names of trustees named Buckton and Downes, certain shares belonging to him in the Alliance Marine Assurance Company and the London Chartered Bank of Australia, upon trusts declared by a contemporaneous deed, to which the settlor, the trustees, and the lady, were parties.
72. These trusts were in effect for the immediate, absolute, and unconditional benefit of the lady, without any power of revocation; the income being secured to her for her separate use, in the event of any future coverture; and no provision being made, in that or any other event, for children. Two days after the date of the deed Mr. Hardlnge and his sister-in-law went through the form of a marriage ceremony; and they lived together till his death, which happened four months afterwards. The lady has ever since enjoyed the full benefit of these trusts; and in April, 1870, she married a Mr. Jenkins without any settlement, doubtless relying on the provision so made for her. The plaintiff in that case had become the legal personal representative of Mr. Hardinge in 1886; and in January, 1872, he filed this bill in that character seeking to set aside the deed, as founded on an illegal consideration, and therefore, void, and asking for a re-transfer, 'if necessary', of the shares from the surviving trustee, Mr. Downes.
73. The question before the Court of Equity was whether the plaintiff was entitled to the relief, Lord Selborne, L. Ch. considered the older authorities and summarised at page 282 as follows:--
"Their results may be thus stated: 1. Bonds or covenants founded on past cohabitation, whether adulterous, incestuous, or simply immoral, are valid in law, and not liable (unless there are other elements in the case) to be set aside in equity. 2. Such bonds or covenants, if given in consideration of future cohabitation, are void in law, and therefore, of course, also void in equity. 3. Relief cannot be given against any such 'bonds or covenants in equity if the illegal consideration appears on the face of the instrument. 4. If an illegal consideration does not appear on the face of the instrument, the objection of particeps criminis will not prevail against a bill of discovery in equity in aid of the defence to an action at law. 5. Under some (but not under all) circumstances, when the consideration is unlawful, and does not appear on the face of the instrument, relief may be given to a particeps criminis in equity,"
74. So far as the said case before him was concerned, the plaintiff was refused relief on equitable grounds observing as follows at page 283:
"In the present case relief is sought by the representative, not merely of a particeps criminis, but of a voluntary end sole donor, on the naked ground of the illegality of his "intention and purposes; 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 was absolutely vested in trustees, ten years before the bill was filed, for the sole benefit of the defendant, I know no doctrine of public policy which requires or authorises, a Court of Equity to give assistance to such a plaintiff under such circumstances. When the immediate and direct effect of an estoppel in equity against relief to a particular plaintiff might be to effectuate en unlawful object, or to defeat a legal prohibition, or to protect a fraud, such an estoppel may well be regarded as against public policy. 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 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 in (1850) 3 Mac & G 94 (102) that the law, in sanctioning the defence of 'particeps criminis', does so 'on the grounds of public policy, namely, that those who violate the law must not apply to the law for protection'. It is a maxim of law not opposed to any equity, that 'in pari delicto melior est conditio possidentis'; and it is a principle of equity, that long delay in seeking to rescind a transaction originally voidable, on the faith of which other persons have irrevocably made their arrangements in life, may operate as a bar to relief."
Further an argument that even in respect of a completed transfer of property, where transfer was void, the property was to be retransferred, was rejected in that case after a full discussion of the cases cited in support of that proposition. 75. The law in England is succinctly stated in Halsbury's Laws of England, Fourth Edition, Volume 9, at page 300 as follows in paragraph 433:
"433. Introduction. One party to an illegal contract may have transferred property or paid money to the other in pursuance of the contract. The question then arises whether the money or property may be recovered. Generally, the position is governed by the maxim in pari delicto potior est conditio defendentis, so that where the parties are on an equal footing as regards the illegal contract neither can recover any property or money transferred to the other in pursuance of the contract." Again in paragraph on p. 301, it is stated: "434. Transfer of ownership of goods or land. It now appears to be settled that where property has been transferred absolutely under an illegal contract such transfer is effective to pass title in the property to the transferee.....
2. The conclusion from these cases seems to be that, in relation to transfers of property, an illegal contract is not void, but merely unenforceable, for none of these cases could have been decided in the same way simply by reference to the maxim in pari delicto potior est conditio defendentis....
3. Some cases assert a general principle that a party to an illegal contract may recover property which has been transferred under an illegal contract if he does not rely upon the illegal transaction; tout this view is to some extent inconsistent with the doctrine that an illegal contract is not necessarily void and it is doubtful how far it is generally applicable. It may be that the principle is relevant only where the contract re-mains executory on the part of the transferee and the transferor seeks to rescind."
75. Again in Anson's Law of Contract, Twenty-third Edition, (1969), at page 329, the English law is stated as follows:--
"Although it has sometimes been said that contracts contra bones mores are void, the only aspect of immorality with which Courts of Law have actually dealt is sexual immorality; and the law on this subject may be shortly stated.
A promise made in consideration of future illicit cohabitation is given upon an immoral consideration, and is unlawful whether made by parol or under seal. But a promise made in consideration of past illicit cohabitation is not made on an illegal consideration, but is a mere gratuitous promise, binding if made under seal, unenforceable if by parol."
76. In P.S. Atiyah's Law of Contract, at page 219, we find the following observations:--
"It must not be thought that illegality in the law of contract is conterminous with illegality in the criminal law, for a contract may toe illegal without involving any breach of the criminal law at all. The most obvious illustration of this possibility is a contract involving sexual immorality. For instance, although prostitution is not, as such, criminal, a prostitute cannot sue her clients in a Court of Law for remuneration for her professional services. Nor, indeed, can she be sued by a person who has supplied her with goods or premises which he knows are to be used by her for her professional purposes. In fact if he takes an inflated price, for example, by way of rent, he may even be prosecuted for living on the earnings of a prostitute.
Few people would quarrel with the law thus far. But changes in the moral values of our society make some older decisions look very unreasonable today. For example, in one case in 1911 it was held that a landlord who let a flat to a woman whom he knew to be the mistress of a certain man, from whom it was expected that the money for the rent would be forthcoming, could not sue the woman for the rent. The policy behind this decision seems highly questionable. Equally questionable seems the decisions holding that a promise by a married man to marry a woman after the death or divorce of his first wife was illegal because it might 'tend' to induce immoral relations between the parties, it seems too obvious for words that such a promise must be the result, and not the cause of the break down of a marriage. Since 1 January 1971 actions for breach of promise of marriage have anyhow been abolished; but the case law in this field is still of interest for the light it throws on the whole approach of the courts to questions of illegality. In this particular situation the use of the law of contract even as a deterrent was not likely to be of much value because it seems unlikely that the law was sufficiently well known to deter anyone. The rule might have had some social value if it discouraged third parties from acting in such a way as to lead to the breakdown of a marriage, tout it seems very doubtful that it can have had any such effect
In a more modern decision in 1937, the House of Lords showed a much greater appreciation of the problem by holding that a promise by a married man to remarry was not illegal or invalid, if given after a decree nisi had been obtained from or by his first wife. The argument that such a promise might tend to cause immoral relations between the parties was scouted by a majority of their Lordships, who pointed out that "to attack a contract" because of its evil tendencies was to get on very treacher- ous ground. Tendencies of this kind rest on speculation rather than proof, and there are few contracts which do not provide motives or temptations for improper or illegal actions. As Lord Atkin said in this case, 'the doctrine (of public policy) should only be invoked in clear cases in which the harm to the public is substantially incontestable, and does not depend on the idiosyncratic inferences of a few judicial minds...... The contract should be given the 'benefit of the doubt'. This being the position in English law, we now turn to the Indian Law on the point.
77. There is no doubt that under Section 23 "of the Indian Contract Act, every agreement of which the object or consideration is unlawful is void, and an agreement, consideration or object of which is immoral can be regarded by the Court as immoral and unlawful or opposed to public policy.
78. What applies to an agreement is also applied by Section 6(h) of the Transfer of Property Act, to every transfer which includes the sale; and therefore, if the sale-deed is for an unlawful object or consideration within the meaning of Section 23 of the Indian Contract Act, 1872, the sale would be void.
79. The effect of these sections on transfers tainted by sexual immorality was considered by Patkar and Barlee JJ. in Sabava Vellappa v. Yamanappa Sabu, 35 Bom LR 345 : AIR 1933 Bom 209. That was the case where the plaintiff sued to recover possession of certain lands conveyed to defendant No. 1 by Sabu, the adoptive father of the plaintiff under a sale-deed dated September 21, 1903, and the other lands in suit conveyed by Sabu and his wife, defendant No. 6, the widow of Sabu who died in September 1917, by a gift-deed dated June 26, 1917. Out of the lands which were given in gift, one land was alienated by defendant No. 1 to defendant No. 5, her Mukhtyar, in 1918, who in his turn sold it to defendant No. 2 in May 1921. Another land was sold by defendant No. 1 to defendants Nos. 3 and 4 in Sept. 1913.
80. The case of the plaintiff was that the sale transaction of 1903 was illegal and void, because defendant No. 1 was the mistress of Sabu, and though the ostensible consideration was cash, the real consideration was illegal, that is, past and future cohabitation. As regards the deed of gift, it was alleged by the plaintiff that defendant No. 1 was in a position to dominate the will of Sabu and that it was for the same unlawful object and consideration. The trial Court held that the sale-deed was. passed not for cash as stated in the deed, but for past and future cohabitation, tout hold that the suit in respect of the property comprised in the sale-deed was barred by limitation as defendant No. 1 was in ed-verse possession for more than twelve years.
81. With regard to the deed of gift the learned Judges came to the conclusion that it was for past and future cohabitation and the deed of gift was void and the suit was within time; and, therefore, awarded the plaintiff possession of the lands comprised in the deed of gift, and ordered him to pay compensation to defendants Nos. 2, 3 and 4 for the improvements made by them in survey Nos. 181 and 336 comprised in the deed of gift.
82. This Court in the First Appeal from that judgment dismissed the appeal. With regard to the sale-deed, the learned Judges came to the conclusion that the ratio in Ayerst v. Jenkins (1873-16 Eq Cas 275) (supra) applied, observing as follows:--
"In the case of the sale-deed in the present case, which was for past and future cohabitation, Sabu could not have maintained a suit to recover back the property, as after the date of the sale-deed, there was illicit connection between Sabu and defendant No. 1 and the immoral object having been carried out, he would have been prevented from recovering back the property, and according to the decision in the case of Ayerst v. Jenkins his legal representatives would also be barred. It is somewhat difficult to hold that the plaintiff, the adopted son, is in pari delicto with defendant No. 1, the mistress of Sabu."
83. But this Court, as stated above, expressed a difficulty to hold that the plaintiff, the adopted son, was in pari delicto with defendant No. 1, the mistress of Sabu. The decision also rested on the finding that the sale-deed had become unimpeachable because of adverse possession.
84. So far as the gifts were concerned, this Court agreed with the view of the learned trial Judge. According to Patkar J. the plaintiff could have maintained a suit to recover property. Patkar J. gave the following reasons for his conclusions at page 355 (of Bom LR) t (at pp. 214, 215 of AIR):
"Past cohabitation would foe consideration for an agreement under Section 2(d) of the Indian Contract Act but is not good consideration for a transfer of property, A gift does not require consideration. It is difficult to hold that past cohabitation can be an object of a gift. Future cohabitation can be considered to be an of eject of gift. So far as the object as regards the maintenance of future immoral relations was concerned, I think in the present case Sabu did not carry out the immoral object as "he was incapable of carrying it out owing to his illness and died soon afterwards. Sabu, therefore, could have maintained a suit to recover the properties comprised in the deed of gift. The deed of gift was invalid under Section 6(h) of the Transfer of Property Act, and the principle of equity enunciated in the decision in the case of Ayerst v, Jenkins (1873-16 Eq Cas 275) would not have come in his way as the immoral object was not carried out. He could, therefore, have maintained a suit for recovery of the properties comprised in the deed of gift. If this view is correct, the plaintiff, as his adopted son, is entitled to recover the properties."
85. According to Barlee J., however, the parties were not contemplating future illicit intercourse when the gifts were made. Since Sabu was old or elderly and was ill, and Sabava was forty-seven years of age, the learned Judge observed:--
"I think they were making arrangements for the time when she would be left alone. That was not an unlawful object. J am, therefore, compelled to examine the evidence with a view to determine whether, as alleged by the plaintiff, past intercourse was the consideration of the agreement or merely the motive."
Then he considered the facts of the ease and on the basis of the evidence he came to the conclusion that Sabu gave her a promise of the land, because she was his mistress and this promise being unenforceable conveyance in discharge of that agreement was void.
86. It may be noted that in that case despite the differences of opinion, the decision was based on the adverse possession by defendant No. 1 Sabava for more than 12 years of five properties comprised in the sale-deed, With respect, the discussion about Ayerst v. Jenlans (1673-16 Eq Cas 375) is also inconclusive because after the doubt expressed in Sidlingappa v. Hirasa, , the Court
applied to the doctrine of in pari delicto for its alternative finding denying assistance to the plaintiff in respect of the five properties.
87. Mr. Karmali strongly relied on Sabava v. Yamanappa AIR 1933 Bom 209 and contended that the facts of the present case are similar to the facts in that case, and the doctrine of in pari delicto, must apply. In Istak Kamu Musalman v. Ranchod Zipru, the heirs of the transferor had challenged the transfer as tainted by immorality, and therefore, void. With respect, after summarising the Indian and English law on the point, and pointing out that the ratio in Ayerst's case (1873-16 Eq Cas 275) will apply to a transfer void under Section 6(h) of the Transfer of Property Act and also pointing out that the decision in Sabava v. Yamanappa (supra), Divatia and Lokur JJ. found that it was not necessary in that case to consider the contention that the Court of equity would not help the transferor to recover the property transferred on the ground that the transfer was void.
88. There again the judgment was based on adverse possession for more than twelve years in respect of certain transfers, Nevertheless, Mr. Kanade relied strongly on the judgment and eon-tended that the decision helps him to argue that the principle laid down in Ayerst v. Jenkins (1873-16 Eq Cas 275) (supra) could not apply to avoid the agreement. They are transfers like the one in the present case for future cohabitation.
89. Mr. Kanade also strongly relied on the decision of P.E. Mukherji and B.S. Bachawat JJ. in Pranballab Sana v. Sm. Tulsibala Dassi (supra) where the learned Judges have delivered
separate judgments discussing at length the English and the Indian Law and arrived at the conclusion that the executors and trustees in that case could maintain a suit for the recovery of possession of property let out toy the testator for prostitution.
90. Bachawat J., as he then was, has discussed in detail all the relevant case law, the Specific Relief Act, and the Indian Trusts Act, holding that it was in the interest of justice or public interest and public welfare the premises should cease to be a brothel; and the maxim salus populi est supreme lex should prevail over all other maxims of law. It is only necessary to refer to the 12 propositions of law which he has, with respect, very precisely stated in paragraph 114 of his judgment on pages 729 and 730, and in particular the (12th) proposition which is as follows:
"In general a plaintiff claiming title through a particeps criminis is denied relief if his case is such that the particeps criminis would not have got relief had he come to the Court as plaintiff with the same case."
91. Mr. Kanade, relied on the decision of P.B. Mukherji and Bachawat JJ. for the proposition feat where the transaction is void, Ayerst'e case (1873-16 Eq Cas 275) has no application. As already stated above, the question there was whether the executors and trustees were entitled to the relief and they appear to have dissented from the view taken in Sabava's case (AIR 1933 Bom 209) which, however, is binding on us,
92. Unfortunately, the attention of the Court was not drawn to the relevant provisions of the Specific Belief Act and the Indian Trusts Act in Sabava's case AIR 1933 Bom 209 and Istak Kamu's ease . The real position appears to fee that when a suit is filed, either for rescinding of a contract on the ground that it is void or cancellation of an instrument or for a declaration that the transfer is void, the Court should -be guided in this country now by the provisions of the Chapters IV to VI of the Specific Relief Act, 1963.
93. Section 27 of that Act, lays down that any person interested in a contract may sue to have it rescinded, and such rescission may be adjudged by the court where the contract is unlawful for causes not apparent on its face and the defendant is more to blame than the plaintiff. It is patent that this provision is more or less statutory recognition of the well known equitaible doctrine of in pari delicto. This is further reinforced by what is contained in Sub-section (2) of Section 27, which lays down that notwithstanding anything contained in Sub-section (1), the Court may refuse to rescind the contract-- (a) where the plaintiff has expressly or impliedly ratified the contract; or (b) where, owing to the change of circumstances which has taken place since the making of the contract (not being due to any act of the defendant him- self), the parties cannot be substantially restored to the position in which they stood when the contract was made; or (c) where third parties have, during the subsistence of the contract acquired right in good faith without notice and for value; or (d) where only a part of the contract is sought to be rescinded and such part is not severaible from the rest of the contract. Section 28 lays down that equities should be done by the Court between the parties where a decree for specific performance is to be set aside.
94. In our opinion, the present suit is governed by Section 31 as the plaintiff seeks to set aside the registered sale-deed. That section again lays down that that any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order It to he delivered up and cancelled. It is not as if in every case where the agreement is void, the Court is bound to, set it aside. It gives a discretion to the Court. That discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. It is in the exercise of the discretion that the[ Court may be asked to apply the well-known equitable doctrine of 'in pari delicto'.
95. Further Section 34, which is also a section applicable to the present case as declarations are sought again, in terms, lays down that the Court has a discretion in making the declaration. The Court must also bear in mind the principle laid down in Section 84 of the Indian Trusts Act, 1882, which runs as follows:--
"84. 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."
This again is a statutory recognition of the principle in the maxim 'pari delicto.'
96. Apart from these statutory provisions, for more than two hundred years in this country the English equitable principles have been followed in cases like the present one. The plaintiff is denied assistance of the Court on the ground that the Court would not assist the plaintiff to benefit from his own immorality or fraud or illegality, either on the basis of the maxim 'he who seeks equity must do equity' or he who comes into equity must come with clean hands; or on the basis of such doctrines like: (1) Courts do not aid a party to an illegal undertaking; or (2) that the law does not permit a party deliberately to put his property out of his control for an immoral purpose and then seek intervention of the Court to regain the same after the immoral purpose is executed or accomplished; or (3) where 'both parties are equally guilty law leaves the parties where it finds them and keeps itself comfortably aloof from the obligation to determine the rights as between the guilty parties; or (4) that a party who claims an equitable relief must come into court with clean hands; or (5) that the party could not be allowed to blow hot and cold; or (6) to let the mischief lie where it exists. Sometimes reference is also made to the legal maxim such as:--(1) Ex dolo malo non oritur actio; (2) Ex turpis causa potior est conditio defendentis; (3) Nullus commondum capere potest de injuria sua propria; and (4) Allegans contraria non est audiendus.
97. Shell's Principles of Equity, 26th Edition, page 34, when discussing the maxim "He who seeks equity must do equity." observed:
"To obtain equitable relief the plaintiff must be prepared to do 'equity', in its popular sense of what is right and fair to the defendant. This is a rule of 'unquestionable justice' which, however, decides nothing in itself; for you must first inquire what are the equities which the defendant must do, and what the plaintiff ought to have."
Again when discussing the maxim "he who comes into equity must come with clean hands" Shell states:
"This maxim, which seems not unrelated to the ex turpi causa non oritur actio of the common law, is very similar to the previous one; but it differs from it in looking to the past rather than the future. The plaintiff not only must be prepared now to do what is right and fair, but also must show that his past record in the transaction is clean; for 'he who has committed inequity,.....shall not have Equity'."
At the same time, a caution is given at page 36 as follows:
"Maxim must not be taken too widely; Equity does not demand that its suitors shall have led blameless lives. What bars the claim is not a general depravity but one which has an immediate and necessary relation to the equity sued for."
98. We are, therefore, of the view that when transfers are tainted by immorality, the Court has a discretion which must be exercised judiciously, having regard to all the facts and circumstances of the case, to decide whether the plaintiff is entitled to the relief by way of restitution of the proper transfer, even though such transfers may be void on the ground that its object or consideration is immoral or opposed to public policy. The Court should not readily infer the object as future illicit cohabitation easily alleged by one party and denied by the other without an regard for truth as in the present case.
99. The position appears to have been considered and affirmed in several decisions of this Court. In Ningaraddi v. Lakshmawa, (1901) 3 Bom LR 647, where in joint Hindu family, the father alienates any portion of the family property by way of maintenance for his concubine in consideration of past cohabitation the liability which he legally incurs by virtue of such alienation does not create a debt which his son is bound to pay. Chandavarkar J. observed at p. 652 as follows:
"The debt, from that point of view, has its origin in an immoral purpose. But even If it is a debt contracted in the fulfilment of a moral obligation, and that as such not immoral, it is, at any rate, a debt in the nature of compensation made to the woman toy way of maintenance for the injury done to her by the past illicit cohabitation. That is the real nature of the liability, according to Gibson v. Dickie, (1815) 3 M & S 463. If, then, it is a compensation for injury done to the woman, it is a debt which sounding in damages is in the nature of a fine or penalty, which according to the texts bearing on the subject, a Hindu son is not bound to pay."
100. In spite of this, however, he too agreed, having regard to the finding of the District Court that after the execution of the deed the defendant continued to be in the keeping of the plaintiffs father until his death and that as the connection then became permanent, it must be held that the defendant became entitled to maintenance after the death of the plaintiff's father and she cannot be deprived of the property in dispute unless provision is made for her maintenance by the plaintiff.
101. Sir Lawrence Jenkins, C. J. in Shidlingappa Ganeshappa v. Hirasa Tukasa, , dealing with a suit brought by the plaintiff to recover possession of a house and land on the ground of his title and he and the defendant defrauding the creditors by the transactions in suit observed as follows on page 546:--
"It is well settled that when a fraud of this class has been carried into effect, a party to it cannot, as plaintiff, plead the fraud to vitiate the transaction."
At page 547, it is observed as follows:--"Though we have dealt with the case as if both parties to this litigation had been equally culpable, it is to foe noticed that it was the plaintiffs father and not the plaintiff, who joined the defendant in the fraud, and it is a question whether it can be said that the plaintiff and the defendant are in pari delicto." He even went to the extent of holding that the defendant also could not plead fraud.
102. This view of his was overruled by the Full Bench of this Court in Guddappa Chikkappa Kurfoar v. Balaji Ramji Dange, 43 Bom LR 681 : (AIR 1941 Bom 274) (FB). it was also a case of fraud by benami transaction. After remarking that Beaumont C. J. would never differ from any decision of Sir Lawrence Jenkins without very great diffidence Beaumont C. J. stated that, in his opinion, his (Jenkins C. J.) decision in that case cannot be supported, and reiterated the principle that the Court "must never allow itself to be used to assist in the perpetration of fraud."
103. The doctrine' 'in pari delicto' is also affirmed in several decisions of the Supreme Court. In Immani Appa Rao v. Gollapalli Ramalingamurthi, the conveyance In suit was the
result of a collusive plan between respondent No. 1 and respondent No. 2 to defraud the latter's creditors, The agreement was that respondent 1 was to act as the benamidar for respondent 2 and his sons, the appellants. The fraud succeeded and the creditors of respondent 2 were in fact defrauded. Thereafter respondent No. 1 brought the suit for declaration of title and recovery of possession against respondent No. 2 and the appellants on the basis of the conveyance. The latter resisted the suit on the ground that the conveyance was fraudulent, unsupported by consideration and passed no title.
104. The High Court in second appeal held that the appellants and respondent No. 2 were estopped from pleading fraud in the suit and decreed the same. The question was whether the view taken by the High Court was correct and the ostensible owner was entitled to a decree, it was held by the Supreme Court that there could be no question of estoppel in a case where both the parties were guilty of fraud.
105. Gajendragadkar J. speaking for the Court observed at p. 748 (of Bom LR): (at p. 375 of AIR):
"Reported decisions bearing on this question show that consideration of this problem often gives rise to what may be described as a battle of legal maxims. The appellants emphasised that the doctrine which is pre-eminently applicable to the present case is ex dolo malo non oritur actio or ex turpi causa non oritur actio. In other words, they contended that the right of action cannot arise out of fraud or out of transgression of law; and according to them it is necessary in such a case that possession should rest where it lies in pari delicto potior est conditio possidentis; where each party is equally in fraud the law favours him who is actually in possession or where both parties are equally guilty the estate will lie where it falls. On the other hand, respondent 1 argues that the proper maxim to apply is nemo allegans suam turpitudinem audiendus est, whoever has first to plead turpitudinem should fail; that party fails who first has to allege fraud in which he participated. In other words, the principles invoked by respondent 1 is that a man cannot plead his own fraud. In deciding the question as to which maxim should govern the present case it is necessary to recall what Lord Wright. M. R. observed about these maxims in Berg v. Sadier and Moore. (1937) 2 KB 158, 162, Referring to the maxim ex turpi causa non oritur actio Lord Wright observed that "this maxim, though veiled in the dignity of learned language, is a statement of a principle of great importance but like most maxims it is much too vague and much too general to admit of application without a careful consideration of the circumstances and of the various definite rules which have been laid down by the authorities". Therefore, in deciding the question raised in the present appeal, "it would be necessary for us to consider carefully the true scope and effect of the maxims pressed into service by the rival parties and to enquire which of the maxims would be relevant and applicable in the circumstances of the case. It is common-ground that the approach of the Court in determining the present dispute must be conditioned solely by considerations of public policy. Which principle would be more conducive to, and more consistent with, public interest, that is the crux of the matter. To put it differently having regard to the fact that both the parties before the Court are confederates in the fraud, which approach would be less injurious to public interest Whichever approach is adopted one party would succeed and the other would fail, and so it is necessary to enquire as to which party's success would be less injurious to public interest."
The Court then considered the facts end circumstances of the case in the context of the provisions of Section 84 of the Indian Trusts Act and set aside the decision of (he High Court on the ground that the High Court was in error in not giving effect to the finding recorded by the trial Court that the fraud mutually agreed upon and contemplated by responds 1 and 2 had been effectively carried out; and that in the carrying out of the fraud both the parties were equally guilty.
106. The position in law is discussed in Dwarampudi Nagaratnamba v. Kunuku Ramayya, . In that case by two registered
sale-deeds, Venkatacharyulu who was the Karta of his joint family consisting of himself and his four sons, transferred some family property under two purported sale-deeds dated April 15, 1946 to his permanent concubine Dwarampudi Nagaratnamba. In 1947, there was a disruption of the joint family and a severance of the joint status between Venkatacharyulu and his eons. In 1954, his widow and sons instituted a suit against the appellant Dwarampudi Nagaratnamba for recovery of possession of the properties alleging that the documents dated April 15, 1946, were executed without consideration or for immoral purposes, and were void. The appellant also filed a suit for damages and mesne profits for wrongful trespass on the properties.
107. The matter went to the High Court of Andhra Pradesh. The High Court found that the transfer under Ex. A-l and Ex. A-2 were not supported by any consideration by way of cash or delivery of jewels, though they were described as sale-deed. The High Court further held that the transfers were made by Venkatacharyulu in favour of the appellant in view of past illicit cohabitation with her, such past cohabitation was the motive and not the consideration for the transfers and the two deeds though ostensibly sale-deeds, were in reality gift-deeds. It held that Venkatacharyulu had no power to make a gift of the joint family properties, the two deeds were invalid and the subsequent severance of joint status in 1947 could not validate them.
108. Before the Supreme Court if was common case that future illicit cohabitation was not the object or the consideration for the transfer under Ex. A-1 and Ex. A-2. The appellant Dwarampudi contended that Venkatacharyulu agreed to make the transfer in consideration of past cohabitation having regard to Section 2(d) of the Indian Contract Act, 1872 her past service was a valuable consideration and Venkatacharyulu was competent to alienate for value his undivided interest in the coparcenary properties. On behalf of the respondent if was contended that the transfers were by way of gifts and not in consideration of the past cohabitation and Venkatacharyulu was not competent to make a gift of the coparcenary properties. In the alternative, they contended that assuming that the transfers were made in consideration of past cohabitation, they were hit by Section 6(h) of the Transfer of Property Act, 1882.
109. The Supreme Court held that the transfers were without consideration and were by way of gifts. The gifts were not hit by Section 6(h) 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,
110. Bachawat J. speaking for the Court observed (at p. 254):--
"In Balo v. Parbati, ILR (1940)' All 371: (AIR 1940 All 385) the Court held that the assignment of mortgagee's rights to a woman in consideration of past cohabitation was not hit by Section 6(h) of the Transfer of Property Act and was valid, Properly speaking, the past cohabitation was the motive and not the consideration for the assignment. The assignment was without consideration by way of gift and as such was not hit by Section 6(h). In Istak Kamu v. Ranchhod Zipru, ILR (1947) Bom 206 at p. 217: (AIR 1947 Bom 198 at p. 202) the Court rightly held that past cohabitation was the motive for the gift under Exhibit 186, and the gift was valid but in holding that the promises to make the gifts under other exhibits were made in consideration of past illicit cohabitation and consequently those gifts were invalid, the Court seems to have too readily assumed that past cohabitation was the consideration for the subsequent promises."
"Venkatacharyulu was free to make a gift of his own property to his concubine. The gifts under Exs. A-1 and A-2 were not hit by Section 6(h) of the Transfer of Property Act. But the properties gifted under Exs. A-1 and A-2 were coparcenary properties. Under the Madras School of Mitakshara law by which Venkatacharyulu was governed, he had no power to make a gift of even his undivided interest in the coparcenary properties to his concubine. The gifts were therefore, invalid."
111. The Supreme Court, therefore, refused to interfere with the decision of the High Court in the circumstances of the case, though it pointed out that past illicit cohabitation could be a motive for gift-deed which was called to be a sale-deed.
112. Mr. Kanade, the learned counsel for the plaintiff contended that the said decision of the Supreme Court supports his argument that where the sale-deed is invalid, the property sold is liable to be restored. However, the facts of that case are distinguishable, firstly, because the suit there was by the widow and sons and not by the transferor himself, and secondly, the property which was gifted was the coparcenary property, and that is not the case here. The case only illustrates how the doctrine in pari delicto though not specifically referred to in the judgment guides the Court when a transfer is tainted with immorality.
113. In view of these principles we have no hesitation in setting aside the decree passed by the lower Court as the plaintiff was as much responsible for the immorality which tainted the suit sale-deed as the defendant. As already stated his case of undue influence having been given up in the lower Court at the hearing, was not and could not be pressed before us. In paragraph 8 of the plaint, it is alleged that the sale-deed was executed for unlawful and illegal object for future cohabitation, and as such it was against public policy and unsustainable in law, the consideration being immoral. There is nothing on the record except the interested and unreliable testimony of the plaintiff to show that the object of/or consideration for the agreement was future cohabitation. The case of the plaintiff himself in the witness-box was that he was having sexual relations with the defendant from 1959, i.e. for above five years prior to the agreement and the sale-deed.
114. It is his case that seen after the sale-deed, quarrels started between them though he had romantic interludes during which he posed with her before the camera like a couple in different costumes and at different places, including Jinna cap and Arab dress for the plaintiff. That by itself is not enough to show that the agreement and the sale-deed were executed for future cohabitation or that the object and consideration for the agreement and the sale-deed were future cohabitation.
115. It may be that future cohabitation was incidental and consequential to the intimate relations which were established between the plaintiff and the defendants which may be described as past love and affection on account of the memories of pleasures which they must have had between them since 1959 as stated by the plaintiff. On his own story, therefore, it is difficult to hold that the agreement and the sale-deed have as their object or consideration future cohabitation. Even assuming that what he says is true and they were executed for future cohabitation, he was as much a party to the immoral considerations and object as the defendant.
116. The Court will not promote immorality by enforcing or nullifying such immoral agreements, except under special circumstances where it would be unconscionable to refuse the relief for instance where inexperienced and sexually infatuated Romeos and Juliets in teenage or weak minds are involved. The Court is bound to hold the transfer for Immoral purposes void, where the object or consideration is void on account of immorality. This Court will not, however, assist a person responsible for the immorality to get back what he or she has done in practising and enjoying that immorality. If the Court acts otherwise, it will be heaping inequity on the immoralities indulged in by the parties for their pleasures and profits.
117. If a mature 40 year old, worldly wise, experienced married man with children, a Municipal Councillor and a local rich politician, like the plaintiff hires a woman whom he claimed to have treated as his mistress (whom he now calls a prostitute) by transferring his property as in the present case, enjoys her company for some years, as can be seen from his aforesaid admissions, the romantic letters, which the plaintiff himself has produced, as having been written to him, and the photographs produced by him; and thereafter quarrels with her and asks the Court for the recovery of the property, the only just and fair thing for the Court to tell him, ordinarily, would be. "Let the property lie where your sexual dalliance and immoral pleasures placed it. The Court will not assist you now to deprive further a fallen woman after you, perhaps with others like you, have robbed her of her youth, charms, all social virtues, her life, her light and her love. The Court will say: Let her enjoy in her old age darkness the fruits of her sins as you have enjoyed at least equally her sins."
118. This must be the practical result of the' application of the doctrine 'in pari delicto, potior est conditio defendentis' to the facts of the present case. We, therefore hold in the exercise of the discretion which is vested in the Court, in all the facts and circumstances of the case, that the plaintiff is not entitled to any assistance to recover the property which he had conveyed to the defendants and hence the suit is liable to be dismissed.
119. However, having regard to the previous intimate relations which appeared to have existed between the parties for some years, before the suit and all other facts and circumstances of the case, the proper order regarding costs of this case will be to order both parties to bear their own costs throughout.
120. In the result, the appeal is allowed. The judgment and decree passed by the learned Civil Judge (Senior Division) Aurangabad, on April 24, 1968, are set aside; and the plaintiff's suit is dismissed.
121. Parties to bear their own costs throughout.
122. Appeal allowed.