Full Judgment
Charles Sargent, C.J.
1. The District Judge found that the bonds sued on were void, on the ground that the loan 'was intended to further an immoral purpose and was known by both parties to be so intended.' In the bonds the money is said to have been borrowed for teaching Beram's daughters to sing and for defraying household expenses, and the District Judge has held that the object of teaching Beram's daughter to sing was to make them more attractive as prostitutes, and, therefore, to further an immoral purpose, which could not be separated from the legal part of the purpose for which the loan was contracted.
2. The cases of Cannan v. Bryce 3 B.& Ald. . 179 and M'Kinnell v. Robinson 3 M.& W. p. 434 are authorities for the legal proposition upon which the District Judge's conclusion is based, viz., that 'the repayment of money lent for the express purpose of accomplishing an illegal object cannot be enforced.' But the question yet remains, whether the fact of the immoral purpose and of the plaintiff's knowledge of it is established. In the Bombay Gazetteer, Volume XVI, page 84, it is said, in describing the community of kasbans or naikins in Nasik, 'singing and dancing or prostitution, or the three together, form the occupation of the greater number.' It would seem, therefore, that singing is not necessarily acquired by these women with the view to practising prostitution. It is a distinct mode of obtaining a livelihood which is not necessarily connected with prostitution, although it may be true, as a fact, that most of these who sing lead a loose life. We think, therefore, that the District Judge went too far in concluding that the singing was necessarily intended, to the knowledge of the plaintiff to increase the attractiveness of Berlin's daughter's as prostitutes, and was, therefore, wrong in holding that the bonds were void. However, the District Judge has also found that Beram, who mortgaged the house to the plaintiff, had no title to it on the ground that there was no evidence to show how the house had devolved on his mother Latiba, and in any case that Beram could not acquire any part of it by inheritance froju: his mother, whether by the custom of kalwantins or ordinary Mahomedan law. All the defendants claim through the son and daughter of Latiba, and it does not seem to have been disputed by the appellants in the Subordinate Judge's Court that she had become the owner of it, their allegation being that it was their ancestral property, - inheritance being in their caste confined to females. The District Judge ought, therefore, we think, to have started with the assumption that the house had devolved on Latiba. If that were so, Beram and Mushaf, although illegitimate, would, in the absence of usage, have inherited from their mother in the proportion of two shares to one, the presumption being that they are sunis, and no evidence having been given to the contrary: see Baillie's Digest of Mahomedan Law, 411, and Maonaghten's Principles of Inheritance, p. 91, In that case Beram would have been entitled to mortgage the house to the extent of his two-thirds share. As, however, the District Judge has not recorded a finding on the third issue, we must send the case back for a finding, to be transmitted to this Court within three months.