P.B. Mukharji, J.
1. This is an appeal from the judgment and decree dismissing the plaintiffs' suit for possession with costs. The point in the appeal raises the incidents and consequence of letting for immoral purpose. The moral and social perplexities of prostitution are not the concern of this court. Its legal perplexities demand this court's careful and anxious consideration.
2. The plaintiffs are the executors and trustees of the Will dated 22-6-1946 of one Ranubala Dassi who died on 23-6-1946 leaving the premises in suit No. 9/2 Sonagachi Lane, Calcutta as part of her assets. The plaintiffs executors obtained probate of the Will from this Court on 15-8-1946. The plaint alleges that the premises were let out by Ranubala Dassi to the defendant for running a brothel, and that the defendant is a woman of the town who has been using the said premises as a brothel and for carrying on prostitution along with other inmates of the said house. A case of disorderliness, annoyance and nuisance is also made in the plaint. Within a month of the grant of the probate the plaintiffs served a notice on the defendant to vacate the premises on the ground that she was a prostitute and carrying on the business of prostitution. The notice called for delivery of possession forthwith. The case of the plantiff executors and trustees in evidence is that they want the said premises to administer the trust imposed by the Will of setting up there a charitable dispensary under the Will. They are faced with the proverbial defence that a property let for immoral purpose is irrecoverable in a court of law.
3. The defendant filed a written statement denying the charge of prostitution and of running a brothel and pleading that she resides with her family and children. The defendant's further case is that after Ranubala's death the plaintiffs accepted the defendant as their tenant on the ground that two notices were served on her informing her about the grant of probate and that she had been depositing rent with the Rent Controller since July 1946.
4. Neither the defendant nor any of her alleged family or children nor indeed any witness On her behalf appeared to give any evidence at the trial. On this disputed question of fact the defendant took the dangerous course of allowing the entire evidence against her to go unchallenged and uncontradicted and was content merely to rely oh the alleged weakness of the evidence of the plaintiffs' witnesses to say that the plaintiffs' case had not been proved.
5. On plaintiffs' behalf (1) the plaintiff Saha, an executor and trustee under the Will, (2) one Khudiram, a tenant shop-keeper on a part of the very same premises, (3) one Amiya Nath Banerjee, an employee of the Eastern Railway and a resident of the locality ever since his boyhood and an independent witness and (4) lastly, testatrix Ranubala's daughter Ratan Bala Dassi gave evidence.
6. The learned trial Judge found that the plaintiffs' case for letting for immoral purpose was not proved and secondly, that even if the immoral letting was taken as proved, the plaintiff's could not recover possession in the action following mainly the well-known decisions in Ayerst v. Jenkins, (1874) 16 Eq 275 (A) and Deivanayaga Padayachi v. Muthu Reddi, ILR 44 Mad 329: (AIR 1921 Mad 326 (2) (B): Kali Kumari v. Mono Mohini : AIR1935Cal748 and Scott v. Brown, (1892) 2 QB 724 (D).
7. The learned trial Judge extended the doctrine of those cases not only to the original parties guilty of immorality but also to the present trustees and executors under the Will on the strength of two English decisions one in re Mapleback; Ex parte Caldecott, (1876) 4 Ch D 150 (E), and the other in Farmers' Mart Ltd. v. Milne, 1915 AC 106 (F), even though the learned trial Judge found against the defendant by rightly holding that the plaintiffs did not accept her as a tenant on the basis of the solitary instance of a dishonoured cheque.
8. The Appellants challenge the finding of fact of the learned trial Judge that letting for immoral purpose has not been proved. They contend that the evidence is overwhelming and in fact all one way showing conclusively that the premises were let for the immoral purpose of carrying on prostitution and running a brothel. The trial Judge in dealing with the evidence on this point disregarded the most compelling facts and the context of surrounding circumstances. He failed to give proper weight to such outstanding considerations as (1) that Ranubala herself was a woman of the town, (2) that the defendant was also a woman of the town and a prostitute (3) the general reputation of the particular house as one of illfame and a brothel and finally (4) that Sonagachi where the premises are situate is the notorious quarters of the City where it is said in evidence that all the houses in the street are brothels. They are all in my opinion relevant and compelling facts and cogent circumstances leading to the only possible conclu- sion that the letting was for immoral purposes of prostitution and for keeping a brothel.
9. Apart from the disregard of such weighty considerations which vitiates the learned trial Judge's finding of fact on the point, his reasons for rejecting evidence of material witnesses do not also commend themselves to us. It was an error for the learned trial Judge to say: 'The evidence of Pranballav Saha on this point really does not touch the point at all.' Now Pranballav Saha is a medical practitioner and was Ranubala's family physician. The evidence of a family physician on a point such as this which turns on the reputation of the locality and of the persons concerned is of great weight and cannot be lightly dismissed. No doubt it is true that he visited this house after he became a trustee in August 1946 and therefore he was not a witness proving that the letting in 1942 was for immoral purpose. But the learned trial Judge failed to see the importance of his evidence is in proving (1) the reputation of the locality (2) Ranubala to be a woman of the town (3) Defendant Tulsibala to be a woman of the town (4) the present user for immoral purpose and (5) trustees' reluctance to permit such user of a part of the trust estate which this court has asked them to administer. His evidence therefore cannot be brushed aside as 'not touching the point at all.'
10. The evidence of Khudiram and Amiya Nath Banerjee is described by the learned trial Judge as 'anything but satisfactory'. Here again the learned Judge's rejection of their evidence is in our judgment wholly unjustified.
11. Khudiram is the tenant of a shop room in the very same premises 9/2 Sonagachi Lane and has been in occupation there for about 20 or 25 years which period takes it beyond even the time when Ranubala let out the premises to the defendant on 28-5-1942. He distinctly states that the house is a brothel and a 'Beshyalaya', and that the defendant runs a brothel and that he has seen many women of the town living there (q. 13). Knowing the inmates of a brothel by name is not necessarily the only qualification to speak on the fact whether a particular house is a brothel or not. The evidence of reputation of a house by a person who resides in a part of the very same house as a shop keeper saying what type of people visits such house is in my opinion not only admissible but cogent and relevant. His incapacity to name the prostitutes or their paramours does not discredit the testimony of such a witness. The evidence of reputation is enough in a case such as this. It is not necessary in my view that this shop-keeper had to be inside the brothel himself in order to say that it was a brothel. Evidence should be assessed fairly and as a whole and it is always risky to tear a particular question out of its context and to appraise the whole evidence by such solitary and singular tests.
12. No reason whatever is given by the learned trial Judge why he considered the evidence of Amiya Nath Banerjee unsatisfactory and in what way. He was an independent witness, unconnected with the parties or with the premises in question. He lived in the vicinity of 9/2 Sonagachi Lane which was about 5 to 7 minutes walk from his house and he had grown up in that vicinity ever since his boyhood. He was a responsible person in the employment of the Government under the Eastern Railway. A person such as this is entitled to speak of the reputation of the premises 9/2, Sonagachi Lane and that it is reputed in the locality as quarters for prostitution and brothel keeping. The importance of the evidence of an impartial and non-partisan witness like Amiya Nath Banerjee was missed in the judgment by apparently treating it as evidence only on the point of one single visit when he actually went inside the house. The importance of this evidence lies in the fact that it was the evidence of reputation under Section 32(4) of the Evidence Act coming from a man of the locality and its vicinity who spoke of this house and locality covering a time which went back to the period not only when it was let but even prior thereto.
13. Lastly, Ratanbala, the daughter of Ranubala gave evidence on the point. Her evidence is that the letting took place in her presence and the defendant told her mother that she was taking the house for the purpose of running a brothel. The learned Judge has not accepted her evidence. She being an interested witness I shall assume that the learned Judge's rejection of her testimony was right, although it seems to be based only on the discrepancy on her evidence to reconcile the sum of Rs. 65/- as the settled rent at the time of letting with a rent receipt of Rs. 50/- which was paid to her mother as an advance rent for one month But even rejecting completely Ratanbala's whole evidence and quite apart from and independently of it, the other evidence of other witnesses is overwhelmingly in favour of holding that the letting was for immoral purpose.
14. Before leaving this question of fact it is necessary to emphasize the defendant's absence from the witness-box and the effect of such absence on the issue of fact. In fact not only the defendant but no witness on her behalf gave any evidence at the trial. The learned trial Judge says on this point:
'The counsel for the plaintiff made strong comment on the absence of the defendant from the witness-box and contended that because of such absence I ought to presume that she kept herself away from the witness box in order to prevent the truth coming out of her own lips. Before the court can be called upon to make any presumption of the kind it is for the plaintiffs to satisfy the court prima facie that they have made out a Case.'
The question then is what is a prima facie case. All the evidence of reputation from family physician, executors, trustees, local residents is there. It is surely prima facie evidence. The distinct charge in the evidence from the witness box is (1) that the defendant is a prostitute and carries on prostitution and (2) that she took the house on rent to run a brothel there. That is the prima facie case. She does not come herself nor calls any witness to deny these serious allegations of fact. Whether the Judge should believe one witness or another or one case or another in such a context of facts is not then a question of prima facie case. It is then a question of the weight of evidence and its credibility. Prima facie case is not the conclusive case and the learned Judge mistook the one for the other in his judgment. The very fact that the defendant neither came to the box herself nor called any witness to contradict evidence given on oath against her shows that these facts cannot be denied. What was prima facie against her became conclusive proof by her failure to deny.
15. For these reasons, on the evidence as a whole and on the evidence of individual witnesses, I set aside the learned Judge's finding of fact on the issue whether the premises was let out to the defendant for the purpose of running a brothel as alleged in paragraph 6 of the plaint. I hold that the premises in suit were let out to defendant for the purpose of running a brothel as alleged in paragraph 6 of the plaint and I answer the issue in the affirmative.
16. The question then is one of law. In order to understand the implications of the question of law it is necessary to state clearly the question itself in the facts of this case. The question is whether this court should grant the relief sought by the plaintiff executors and trustees of the Will of the owner of the house who originally let out the property for the immoral purpose of running a brothel.
17. The danger to avoid in discussing and deciding this point of law canvassed in the appeal is the uncritical application of legal and equitable maxims without examining their rational or their roots. My study of ancient and modem decisions shows the strangle-hold of these maxims and ancient procedure disregarding the actual statutory provisions ruling and operating on this point in India. It will be evident when I come to discuss the different cases and authorities cited on this point. Before I do so I think it is better to state my decision in law as I understand it on this point.
18. The crucial point is that Section 6(h)(2) of the Transfer of Property Act lays down that--
'no transfer can be made for an unlawful object or consideration within the meaning of Section 23 of the Indian Contract Act.'
19. Reference to Section 23 of the Indian Contract Act shows that--
'the consideration or object of an agreement is lawful unless it is forbidden by law; or is of such a nature, that, if permitted, it would defeat the provisions of any 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.'
20. The reference in Section 6(h)(2) of the Transfer of Property Act to the Indian Contract Act has led to a most unfortunate confusion between property and contract. We have uncritically adopted in India decisions on contract and have applied them to property without marking the difference between the two in the respective Indian Statutes. The reference to the Contract Act in the Transfer of Property Act is for the purpose of determining the unlawful object or consideration. Whether the object or consideration is unlawful, the test is to be found in Section 23 of the Contract Act. The effect in the Contract Act by itself under Section 23 is that the agreement is void. In Section 6(h)(2) the interdict is 'no transfer can be made.' In other words, an apparent and attempted transfer for an object or consideration which is unlawful is no transfer in law. It does not succeed in transferring any property. Section 6 of the Transfer of Property Act deals with property which cannot be transferred.
21. The effect, therefore, of Section 6(h)(2) of the Transfer of Property Act is, when applied to the facts of this case relating to immorality, that no transfer of this property has taken place in law because the object or consideration is immoral. Therefore, it follows from the plain construction of the statute that a transfer of property for immoral consideration or purpose is no transfer in law and it does not succeed in transferring the property to such a transferee. No estate passes under such an attempt at transfer. The point then is that if a transferor transfers the property for the immoral object of prostitution the law regards it as no transfer. In other words, if a person lets out a house for the purpose of prostitution, the apparent lessee is not a lessee at all in law and the lessor has not parted with the leasehold interest in the estate. Where then does the property remain? It ought in plain commonsense and on obvious principles of conveyancing, to remain where it was namely with the owner. When the law says in Section 6(h)(2) of the Transfer of Property Act that no transfer can be made for an immoral object or immoral consideration, the owner cannot divest himself of ownership by disregarding the law.
22. The reason why ordinarily a person who has himself been a party to the immoral purpose or consideration is not allowed relief in Court is not because the transfer for immoral purpose is good, but because a person participating in immorality is not assisted by the court to take the help of law to enforce his rights. It is a bar on his right of recovery with the aid of court and not a legal sanction to transfer in breach of Statute. It has been put, explained, expounded and formulated in diverse ways. Behind the numerous justifications for this rule the one underlying recurring reason is not that what the law says to be void is not void, but that the court does not allow its own procedure to be used by one who has himself been a party to the immoral purpose of consideration.
23. An analysis of numerous cases on the point shows that the court has justified its attitude either (1) on the ground of public policy, or (2) that the courts do not aid a party to an illegal undertaking, or (3) 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 (4) where both parties are equally guilty law leaves the parties where it finds then and keeps itself comfortably aloof from the obligation to determine the rights as between the guilty parties, or (5) that a party who claims an equitable relief must come into court with clean hands, or (6) that the party could not be allowed to blow hot and cold or (7) to let the mischief lie where it exists.
All these justifications appear to be inspired by a variety of such miscellaneous maxims such as: (1) Ex. dolo malo non oritur actio (2) Ex. turpis causa potior est conditio detendantis (3) Nullus commo-dum capere potest de injuria sua propria and (4) Allegans contraria non est audiendus. Behind all these various justifications the courts appear to have conceived, discovered and followed a ground of public policy of their own. A not unreasonable judicial sanctimoniousness helped them to reach the conclusion that it is against public policy that a party to the immoral consideration or object should e aided by the court. But it is a one-eyed policy which does not see that this attitude can do more harm in perpetuating and conniving at illegality and its continuance than the doubtful good that the court thinks it does by withholding its assistance.
24. The dominating influence which produces this judicial attitude is of public policy by whatever name it is called. A public policy which defeats the statutory provision or does not correct the breach of a statutory mandate is always dangerous to use and apply. But if on the very same ground of public policy it is necessary to relieve a party, then the insistence on the procedural rule of denying a person in pari delicto or in particeps criminis the right of relief will be not furtherance of public policy, but its defeat. To deny a person, who in this case is not even a party to the immoral contract, the right of relief in the instant appeal, is to perpetuate for ever the prostitution and a brothel in the same premises. The court in such an event as this is faced with a choice of evils and should in my view be guided to choose the lesser evil. I shall assume that both are good grounds of public policy. I shall assume that ordinarily public policy demands that this court should not allow itself and its procedure to bo used to aid the grant of relief to a claimant whom it finds to be a person in pari delicto or in particeps criminis. I shall also assume within the meaning, of Section 23 of the Contract Act that every court of law in this country will regard prostitution and brothel keeping as immoral, and shall not wait to discuss whether prostitution or brothels can be justified by the new fangled ethics of the modern society or by any Shavian enthusiast for 'Mrs. Warren's Profession'. Having made these two assumptions the question is, which consideration should be allowed to prevail. To follow the former public policy ground is to perpetuate prostitution and brothel keeping. A decision to deny relief will be to hold that this property is for ever irrecoverable, and that the moral evil of prostitution or keeping a brothel is for ever irremediable. I consider it to be the duty of the court in case of conflict of different grounds of public policy such as this to choose the lesser evil and discourage the greater evil. The lesser evil is the disregard of the purely procedural convention which is not sanctioned by Statute or any substantive law that I know but is evolved by judicial conscience of not helping an impure party. The greater evil in this case will be perpetuation of the brothel and the prostitution. I shall therefore accord relief to the claimant in such a case and depart from the procedural convention of courts tragically misconceived very often as an inflexible rule of law and obey the still higher rule of public policy of not permitting not only a void and illegal act forbidden and prohibited by Statute but also an immoral act under Section 6(h)(2) of the Transfer of Property Act read with Section 23 of the Indian Contract Act. Consequently, the very dictates of public policy which led the courts to invent their self-imposed bar against an immoral party demand that the bar should be lifted so that greater interest of a larger public policy is served.
25. The doctrine that the court does not grant relief to a person who is in pari delicto or in particeps criminis has, in my view, been extended beyond its rational and legitimate limits. Delict or crime is ordinarily personal and not titular. But this procedural handicap which the courts have evolved has been applied indiscriminately to innocent persons-other than those in pari delicto or in particeps criminis. To extend that doctrine to such persons as innocent trustees and executors under a Will to whom this court has granted probate is in my view an unintelligible and unjustified extension of that principle whatever its merits may be as between actual guilty parties. The courts refused relieF originally as personal disqualification for the guilty claimant. I see no principle or reason which justifies the courts to visit this personal disqualification on an innocent party who did not participate in the immorality. Application of the doctrine of in pari delicto or in particeps criminis to the case of innocent executors and trustees under a Will of which this court has granted probate and whom the court by its solemn orders asked to administer the estate under the Will and to hold that they should not be permitted to bring to the notice of this very same court a transfer prohibited by the Statute of this country and that relating to a party of the estate which this court has made them responsible for administering according to law is wholly indefensible and unjust. I have no hesitation in holding that the plaintiff executors and trustees here are not in pari delicto or in particeps criminis, either literally or metaphorically or legally and they are not so either by any proprietary devolution because Section 6(h)(2) of the Transfer of Property Act says no-transfer of property at all can take place for immoral purpose. It has been found by the learned trial Judge that the plaintiffs did not accept the defendant as a tenant after the death of Ranubala which was the second issue before the trial court and on which issue, I uphold the learned Judge's finding of fact. In such a case therefore it is all the more impossible in fact or law to treat the trustees and executors as in pari delicto or in particeps criminis.
26. Having stated my view of the law on the point I shall now proceed to a discussion of the cases and authorities cited at the Bar.
27. Most of these decisions trace their descent from (1874) 16 Eq. 275 (A). Lord Selborne came to the conclusion in that case that a Court of Equity would not, at the instance of a settlor or his legal personal representative, adversely set aside a settlement by which the settlor conferred on a stranger the absolute beneficial interest in property legally vested in trustees, although such settlement might have been made for an illegal consideration not appearing on the face of the instrument. In that case the settlement was made in contemplation of a cohabitation under colour of a ceremony of marriage known to both parties to be invalid because the marriage between a widower and his de-erased wife's sister was prohibited by art Act of Parliament and was held to be contrary to public policv. It was held by Lord Selbome that the suit could not be maintained. Many points distinguish this case from the present case before us. First, there is no difference between the Court of Equity and a Court of Law in India, nor does the Indian law make anv difference between equitable interest and the legal interest; secondly, the suit in equity in Ayerst v. Jenkins (A), was brought at the desire of persons beneficially interested in an estate against the surviving trustees of the settlor, and was therefore a case of devolution of proprietary interests; thirdly, the relief in Ayerst v. Jenkins (A), was sought by the representative, not merely of a particeps criminis, but of a voluntary and sole donor, and also against a completed transfer of specific chattels, by which the legal estate in those chattels was absolutely vested in trustees; fourthly, in commenting on the case of Wootton v. Wootton dealing with mutual settlement made on the occasion of a fictitious marriage, from which both parties desired, or were at least willing to be relieved, and where it was said that the door of this court should not be closed against persons repenting of such an unlawful connection, on the ground that being desirous of extricating themselves from fetters which, if relief were refused, might practically bind them to it, Lord Selborne expressly observed that it was consistent with all sound principle, and with all authority, to recognise the importance of the distinction between a completed voluntary gift, valid and irrevocable in law, as was the case in Ayerst y. Jankins (A), of transfer of shares to the trustees and a bond or covenant for an illegal consideration, which had no effect whatever in law. This major distinction appears insufficiently emphasised and appreciated in many of the Indian decisions in the past. Lord Selborne in Ayerst v. Jenkins (A), mentions another distinction between executed and executory contracts, referring to the well-known decision of the Master of Rolls in Whalev v. Norton, 1687) 1 Vern 483 (G), which His Lordship quotes as an authority for the proposition that 'this court would extend relief as to things executory, which, if done, it may be, might stand.'
28. The mythology that was slowly and inperceptibly growing in Indian case-law as an unqualified charter for denying relief in a court to an immoral party was first exploded by Sir S. Subrahmania Ayyar, Acting Chief Justice and Benson, J. in Thasi Muthukannu v. Shunmugavalu Pillai, ILR 28 Mad 413 at p. 418 (H), where it was said that
'where the transaction, though completed, was intended to be for consideration, it can be impeached if the consideration is immoral, and it makes no difference whether the transaction is executed or executory.'
That great and erudite Judge, Sir Subrahmania Ayyar also drew a significant distinction for not applying the much misused doctrine of 'pari delicto' on the ground of the plaintiff's extreme youth and by holding that the youngman of 20 in that case was led into evil ways at the instance of those persons mentioned in the judgment. If that could exclude a man from the rigours of the doctrine of 'pari delicto' as in fact he was and he could be exonerated, how very much more it would be in the case which had nothing to do with the delict such as the present executors and trustees in this appeal. Sir Subrahmania Ayyar was very clear in indicating at page 418 of the report of his judgment :
'And Wootton v. Wootton referred to and distinguished by Lord Selborne in Ayerst v. Jenkin's (A) is a decisive instance against the Courts laying down broadly that relief will never he given to a plaintiff in pari delicto in cases of completed transactions having for their consideration future illicit cohabitation.'
29. On behalf of the respondents one of the main authorities relied upon is, ILR 44 Mad 329 : (AIR 1921 Mad 326 (21) (B) The head-note of the case begins by stating that the well established rule of equity is that a person who has transferred a property to another for an illegal or immoral purpose cannot get it annulled if the intended purpose has been carried out and then saying that Section 6 Clause (h) of the Transfer of Property Act has not the effect of modifying it. That case concerns a settlement made with the object and consideration of the donee to co-habit with the settlor. Sir Abdur Rahim, J. delivering the judgment in that case followed the decision of Ayerst v. Jenkins (A). In discussing the argument how far Section 6(h)(2) of the Amended Transfer of Property Act made a difference in the law in this country from the English law on the point, the learned Judge said at page 332 (of ILR Mad) : (at p 328 of AIR).
'That section says that 'no transfer can be made for an unlawful object or consideration within the meaning of Section 23 of the Indian Contract Act.' The argument based on this clause is that the transfer for such an object or consideration is ipso facto void and therefore the transferor can come to court and ask its assistance in getting back the property. I do not think that such a far-reaching effect as the annulling of an established rule of law as laid down in Ayerst v. Jenkins (A) and followed consistently in the Indian courts could have been intended by this clause. It may be pointed out here that so far as the amendment goes, that is, the changing of the words 'illegal purpose' into 'unlawful object', its sole object was to amend the law on a minor point with respect to an actionable claim. It would have been far from the object of the legislature to think of modifying the well-established rules of equity as propounded in Ayerst v. Jenkins (A), by an indirect amendment of this nature. However that may be, the words of this clause do not necessarily bear out the extreme contention of the apnellant. 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.'
With great humility and respect to the learned Judge I find it a little difficult to appreciate the process of reasoning leading to the conclusion arrived at in the judgment. I shall not pause here to discuss whether the procedural handicap for a person in particeps criminis barring relief in court is a rule of law or a rule of procedure. If the law says that a transfer cannot be made, then every court of law, I think, should give effect to it and not to do so would be to violate the Statute and its declared policy. If it is going to exclude persons on the ground of being particeps criminis or pari delicto then the delict or the crime indicating the nature of public policy in the particular facts of the case must be carefully investigated and borne in mind. For if a rule in equity of English courts which we are supposed to inherit here to to be applied, then in law equitable principles or the principles of 'equity and good conscience' also should be applied. If it is a rule of equity that an immoral person as a plaintiff cannot succeed in court, then it is equally a rule of equity and good conscience to see that all courts in denying relief do not encourage prostitution and brothel-keeping which would be more against public policy.
30. In fact discussing this aspect of the case under estoppel Taylor on Evidence, 12th Edition, Vol. I, Article 93 at page 89 says :
'Indeed, the better opinion seems to be, that where both parties to an indenture either know, or have the means of knowing, that it was executed for an immoral purpose, or in contravention of a statute, or of public policy, neither of them will be estopped from proving those facts which render the instrument void ab initio, for although a party will thus, in certain cases, be enabled to take advantage of his own wrong, yet this evil is of a trifling nature in comparison with the flagrant evasion of the law that would result from the adoption of an opposite rule.'
This is supported by the decision in Benyon v. Nettlefold, (1850) 20 LJ Ch 186 at p. 187 (I). I find that Taylor's passage occurs unacknowledged in the decision of Sir Ashutosh Mukherjee J. in Raghupati Chatterjee v. Nrishingha Hori Das, AIR 1923 Cal 90 at p. 94 (J), a decision which has also been relied on by the respondents.
31. Then again, I find it difficult to follow the reasoning in Muthu Reddi's case (B), where it. is said that the object of changing the words 'illegal purpose' into 'unlawful object' was to amend the law only on a minor point with respect to an actionable claim. Looking at the amendment in the statute I do not find any foundation for the saying that the law was amended only with respect to an actionable claim. Therefore, it seems to me that it is dearly wrong to say that the legislature could not modify the well established rule of equity in Ayerst v. Jenkins (A), by any indirect amendment. I am unable to accept either the conclusion or the reasons in the Muthu Reddi's case (B), because first, we have no rules of equity as such, and secondly, the amendment was not an indirect one as wrongly said in that case, and thirdly, because it is a greater rule of law for this court to obey the clear statutory mandate. Having wrongly thought the amendment was only indirect in respect of an actionable claim the reason that it could not provide a valid reason why Section 6(h)(2) of the Transfer of Property Act could not be said to make a difference cannot be sustained. It appears to be plain also from the judgment of Abdur Rahim, J. that the learned Judge found that 'the language is certainly not very happy'. To my mind the language is plain and simple that no transfer can be made. When the mandate of the Statute is clear and unambiguous it is the duty of this court to give effect to it.
32. The Full Bench decision of the Bombay High Court in Guddappa Chikkappa v. Balaji Ramj'i, AIR 1941 Bom 274(K), overrules the decision of Sir Lawrence Jenkins in Sidlingappa v. Hirasa, ILR 31 Bom 405 (L). Sir Lawrence Jenkins observed that the defendant could not be allowed to defeat the plaintiff's case by alleging his own fraud. It was there pointed out that the deed on which the plaintiff sued was ostensibly a valid conveyance, and it was held that the defendant could not be allowed to show that it was not what it purported to be, a conveyance or sale, by setting up his own fraud'. The Bombay Full Bench in AIR 1941 Bom 274(K), says at page 275:
'The principles which must govern cases of this sort are in my opinion clear. No court will allow itself to be used as an instrument of fraud, and no court, by the application of rules of evidence or procedure, can allow its eyes to be closed to the fact that it is being used as an instrument of fraud. The legal maxim is ex turpi causa non oritur actio. Once the court finds that the plaintiff is seeking its assistance to enable him to get the benefit of what is a fraud, the court refuses to assist him. If, as a result of such refusal, the defendant is left in possession of some advantage derived from his own fraud, that is not due to any action on the part of the court. It is a fraud for a plaintiff to claim beneficial title under a deed in respect of which he was a mere benamidar, and the court cannot refuse to allow the defendant to prove the benami nature of the transaction, ever though in doing so the defendant may have to rely on his own wrongdoing.'
The actual case before the Bombay Full Bench was the case of a sale deed where as a fact it was found that there was no consideration for the sale deed and that it was a part of a fraudulent attempt on the part of the defendants to defeat their creditors and that the deed on which the plaintiff stood was in respect of a benami transaction. The questions of benami transaction, the questions of presence or absence of consideration are not questions which arise strictly within the interpretation of Section 6(h)(2) of the Transfer of Property Act read with Section 23 of the Indian Contract Act. The case therefore is distinguishable on the basic fact and the law concerning the Bombay decision. I have no quarrel with the doctrine that the court should not be used as an instrument of fraud and gladly accept it as a wholesome principle. But my only regret is that I find it is frequently invoked as a false siren and to send out false alarms. Is it a fraud to defeat the Statute? To my mind it is. When the court finds that it has happened, it is bare duty of the court to correct it. In doing so it is not used as an instrument of fraud but as an instrument of justice to correct fraud, specially when it is brought to the notice of the court not by the fraudulent party but a victim of the fraud of which the defendant wants to take the full benefit. Here in the facts of this case the plaintiffs cannot by any stretch of fact or notion be said to be using the court as an instrument of any fraud whatever. In this case the question of public policy demonstrates that the court will be used as an instrument of fraud rather by denying the plaintiffs the right to relief than by permitting them such right.
33. On behalf of the respondents the decision of the Lahore Full Bench in Qadir Bakhsh v. Hakam, ILR 13 Lah. 713: (AIR 1932 Lah 503) (M), has been cited. That again is a case of benami mortgage and is not concerned with Section 6(h)(2) of the Transfer of Property Act at all. The decision in T. P. Petherpermal Chetty v. R. Muniandi, 35 Ind App 98 (PC) (N) is also cited on behalf of the respondent. That again is a fraudulent conveyance turning on the question of benami transaction and did not relate to the effect' of void transfer under Section 6(h)(2) of the Transfer of Property Act read with Section 23 of the Indian Contract Act. Mr. Ghose on behalf of the respondents also cited the case of Bigos v. Bousted, 1951-1 All ER 92 (O). This was a case of an agreement in contravention of the Exchange Control Act, 1947 of England whereby the plaintiff agreed to make available 150 worth of Italian money for the wife and daughter in Italy within a week and the defendant promised to repay her with English money in England, This case is also distinguishable on the same grounds which I have mentioned above. It does not deal with effect of void and voidable transactions; secondly, there the parties were admittedly primarily in pari delicto and no question of trustees or executors arose in that case, thirdly, this was a case again of contract and not of transfer of immovable property such as is prohibited under Section 6(h)(2) of the Transfer of Property Act.
34. The only Calcutta case which the learned trial Judge mentions in his judgment is the decision of a single Judge R. C. Mitter, J. in : AIR1935Cal748 . There the actual case arose out of a promissory note whose origin was tainted with immorality. That again is a case of contract and was a case where persons originally in pari delicto were parties to the suit. No question of transfer of property under Section 6(h) of the Transfer of Property Act arose in that case. On the same ground the case of (1892) 2 QBD 724 (D), can be distinguished which was also a case of a contract for rigging the market by purchase of shares in a company.
35. The case of Upfill v. Wright, (1911) 1 KB 506 (P), is a decision of Darling ]. On the point, that the plaintiff was not entitled to recover rent because the flat for which rent was sought, was let for an immoral purpose. The learned Judge there expressly says that it is unnecessary for him to go through the authorities because he took the law as well settled by Pollock C, B. in Pearce v. Brooks, (1866) I Ex. 213 at page 217, 218 (Q), which proceeded on the maxim I have elsewhere already quoted, viz., Ex Turpi Causa non oritur actio. The English law on which that case was decided was different from the law in our country. There the case is not a case of void transaction by statute but a voidable one under the common law. Two significant and outstanding differences have been ignored in our desire to follow the English precedents, one is the uncritical application of the equitable doctrine or equitable rules of procedure where the statute is clear and the other is the difference between void and voidable transactions. The result has been a confusion and a disregard of the statute in this country on this point. Finally the decision of the English Court of Appeal in Bow-makers Ltd. v. Barnet Instruments Ltd., (1945) 1 KB 65 (R), has been cited at the Bar on behalf of the respondents. That case decides that no claim founded on an illegal contract will be enforced by the Court but as a general rule a man's right to possession of his own chattels would be enforced against one who without any claim of right is detaining them or has converted them to his own use even though it might appear 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 between himself and the plaintiff, provided that the plaintiff does not either seek to enforce or found his claim on the illegal contract, or to plead his illegality in order to support his claim. An exception to this general rule arises in cases in which the goods claimed are of such a kind that it is unlawful to deal in them at all.' This case is more important for what it does not say than for what it does say. It is plain from this decision that the rule laid down in Lord Selborne's judgment in Ayerst v. Jenkins (A), is not an inflexible rule at all and the court has always tried to make such inroads upon the rule whenever and wherever proper considerations demand that course.
36. Apart from the judgment of Sir Subramania Ayyar already quoted by me, support of the view that we are taking is to be found in the case of Istak Kamu v. Ranchod Zipru, AIR 1947 Bom 198 (S). There it was a case of a transfer in consideration of future illicit co-habitation. It was held to be an immoral consideration and therefore void. A gift does not require consideration and past cohabitation may be its motive but it was pointed out there that it would not be its object and consideration. It was held, therefore, that a gift made out of gratitude for, or with the idea of compensating past cohabitation is not per se void under Section 6(h)(2) of the Transfer of Property Act read with Section 23 of the Indian Contract Act. But the more important consideration discussed in that judgment by Lokur, J. is where His Lordship lays down at page 203 that the equitable doctrine in (1874) 16 Eq. 275 (A), does not apply to transactions which are forbidden by law and are void. Thus, the doctrine according to the learned Judge could not be extended to transfer for an unlawful object or consideration. Lokur, J. says at page 203 of the Report :
'But in India a transfer for an unlawful object or consideration within the meaning of Section 23, Contract Act, is expressly prohibited by Section 6(h), T. P. Act. If the doctrine is extended to such transfers, the prohibition would be meaningless. This distinction has been emphasized by Lord Selborne on page 284 where he says :'......... I think it consistent with all sound principle, and with all authority, to recognise the importance of the distinction between a completed voluntary gift, valid and irrevocable in law (as I hold the transfer of these shares to the defendant's trustees to be), and a bond or covenant for an illegal consideration, which has no effect whatever in law.'
37. In extending the doctrine of 'pari delicto' or 'particeps criminis' to the trustees, the respondents relied on the case of (1876) 4 Ch D 150 (E). The point there arose in connection with payment for a forged bill of exchange. The arrangement was that if the payee paid the forged bill then the forger would later on repay the amount of the bill. The payee agreed with the forger to that course and allowed the bank to discount the forged bill. The agreement between the forger and the payee was that the forger should execute a bill of sale of all his properties to secure the amount of the forged bill. After the execution of the bill of sale the forger was adjudicated a bankrupt. The trustee in bankruptcy made an application to the County Court for an order to avoid the bill of sale and for an order declaring that its execution was an act of bankruptcy and also pleading that the payee in accepting it compounded felony with the bankrupt. The case went through a chequered history and finally in the court of' appeal it was held that the bankrupt could not recover back the proceeds of the sale and therefore his trustee could not have been in a better position than the banker. It is important, however, to notice that the Court of Appeal expressly stated that if there was any offence against the bankruptcy law or against some law in favour of the creditors, then in that case the trustee was not merely the legal representative of the debtor but a little more. But in other respects he had no greater right than what the bankrupt had. Now that is the position in this case. The position in this case is that the plaintiffs are trustees and executors under the Will of Ranubala. This Court had granted probate of the Will of Ranubala knowing that she was a woman of the town leaving such an estate. The executor and trustee Pranballav Shah's evidence is that one of the reasons why this property is required is for the purpose of administration and for establishing a charitable dispensary in the said premises. The setting up of a charitable dispensary is a part of the obligation under the trust under the Will. This court having granted the executors and trustees a probate and ordered them to administer the estate, we are now being told that that even the status in rem with which this court has invested the executors and trustees should not permit them to administer the estate and recover the property but should permit the continuance of the immorality and the illegality. A trustee in bankruptcy in respect of the forged bill out of which Mapleback's case (E), arose was dealing with the question of voidable transaction and not a void transaction prohibited by statute such as under Section 6(h)(2) of the Transfer of Property Act. A trustee in bankruptcy stands also fundamentally in a very different position so far as he represents the estate of the bankrupt which is taken charge of for the benefit of his creditor. A bankrupt's creditor can only get hold of such of the monies which the bankrupt had or could have and no more except of course that which the statute avoids. In that case if the bankrupt could not recover, a trustee in bankruptcy could not either. A trustee in bankruptcy is in many ways very different from an ordinary trustee or executor under a Will with many more independent rights discretion and obligation than a trustee in bankruptcy.
38. These are some of the cases cited at the Bar. It will be unnecessary to refer to other cases. The cases cited and the other decisions on this point are all distinguishable from the point under decision in this appeal either on the ground of (1) the difference between void and voidable transaction (2) statutory prohibition of transfer under Section 6(h)(2) of the Transfer of Property Act, (3) reasons of public policy which impose a ban on the plaintiff are themselves the grounds in this case to remove the ban because the court should choose the lesser evil, and (4) that the executors and trustees to whom this court has granted the probate and directed them to administer the estate cannot be told that they cannot recover the properties for the purpose of administration. It has not been suggested before us that a prostitute leaving a Will cannot seek aid of the court to have the Will probated through her executors and trustees. If it were a universal rule of law and not a mere matter of expediency, procedure and public policy, then all aid should nave been refused by the Court to a prostitute on the ground of immorality. I do not read the case law on the point to think that a prostitute is quite so untouchable in law and procedure even in a puritan court of law.
39. It appears to me that Chitty's treatise on Law of Contracts 20th Edition edited by Dr. Harold notices this distinction between void and voidable transaction and special transactions prohibited or made illegal by a statute or their differences with those under the common law. At page 469 Chitty puts this principle on the following grounds:
'As the benefit of the public, and not the advantage of the defendant, is the principle upon which a contract may be impeached on account of illegality, this objection may be taken by either of the parties to such contract.'
If the benefit of the public is the principle, then I have no hesitation left in my mind to hold that more advantage to the public will arise by giving relief to the plaintiffs in this case overriding the general rule of disqualification than by denying them. To deny them will be not to benefit the public, but will definitely hurt the public by the continuance of this degradation of a brothel and prostitution.
40. The legislative and judicial attitudes towards prostitution and brothels have been very ambivalent throughout the course of legal history. The only legislative enactments that our statute book can produce are the Bengal Suppression of Immoral Traffic Act. 1933 (Bengal Act VI of 1933) and the recent Parliamentary Act of 1956. They appear to me to be at best mere police Acts with little or no effective provision for suppression of immoral traffic which their preambles and titles proclaim.
41. The Bengal Suppression of Immoral Traffic Act, 1933 even with the amendment of the expression 'Brothels' which came in 1945 provides for termination of a tenancy of the premises of this nature only after a conviction under the Act. The prosecution under the Act cannot be initiated by any party to the tenancy in agreement and not even by the State. A complaint can only be made either by (1) the Corporation of Calcutta, (2) Chairman of the Municipality, District Board or Local Board, (3) Three or more persons occupying separate rooms or holdings and resident in the vicinity of the premises, and (4) a representative of any society recognised by the Local Government in this behalf who has been authorised by the society to institute prosecutions under this section. Under Section 4(1)(c) of the Bengal Suppression of Immoral Traffic Act, 1933 any person who being the lessor or landlord of any premises or the agent of such lessor or landlord, lets the same, or any part thereof, with the knowledge that the same, or any part thereof, is intended to be used as a brothel, shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or with both and under Section 4 (1) (b) of the same Act any person who being the tenant, lessee, occupier, or person in charge of any premises, knowingly permits such premises or any part thereof to be used as a brothel, shall be punished in the same way. By following what is called an equitable rule by denying the plaintiffs relief in this case I would be forcing both the plaintiffs and the defendants to commit an offence punishable with imprisonment. I am satisfied that no court by its act should do that. This is yet another compelling reason why this court should allow relief to the plaintiff in this case. I construe the words 'lets the same' in Section 4 (1) (c) of the Bengal Suppression of Immoral Traffic Act for this purpose to mean not only originally let, but continues to let. After all this is a monthly tenancy. This is a tenancy from month to month. Although that means that it has no definite period of time and that it does not come to an end by efflux of time, yet it gives option to terminate by 15 days' notice in Calcutta and that being so, every time that option is not exercised I would say that the landlords or the trustees or the executors in this case being in charge of the administration of these premises within the meaning of Section 4 (1) fc) of the Act are assenting to letting the same within the meaning of the Bengal Suppression of Immoral Traffic Act and thus making themselves liable to punishment thereunder.
42. Section 6 of the Act speaks of the Commissioner of Police and the Superintendent of Police upon a certain information to order discontinuance of a house, room or place as a brothel or for the purpose of carrying on prostitution. In this case a notice was issued under Section 6 (1) (a), (b), (c) and (d) of the Bengal Suppression of Immoral Traffic Act 1933 asking the defendant to show cause why on the grounds stated on those sub-sections she should not be directed to discontinue the use of that house as a brothel, or a disorderly home. Those were the exact words of the notice to show cause. It appears that on 11-2-1946 the Deputy Commissioner of Police although describing the said premises as a brothel issued an order saying 'she is informed that so long as she does not disobey she may continue to stay where she is, provided the owner of the house allows it.' I do not claim to know enough of the mysteries of the Bengal Suppression of Immoral Traffic Act, but I do not think that if a brothel is a brothel, then it can be allowed to continue under the orders of the Deputy Commissioner of Police. At least I do not find any provision to that effect in the statute. It so happens however that the brothels are permitted to continue under the orders of (1) the Commissioner of Police and (2) with the permission of the owner of the house. If the owner does not permit, then it should not remain as a brothel. This is a strange commentary on the administration of even an otherwise wholly inadequate Statute.
43. We have proclaimed in Article 23 of our Constitution 'Traffic in human beings ............. are prohibited and any contravention of these provisions shall be an offence punishable in accordance with law.' The neglected constitutional provision is of significant import. It straightway prohibits traffic in human beings. No further law is necessary to prohibit. Law is only necessary under Article 35 of the Constitution for the purpose of punishing the contravention of the prohibition as an offence. Therefore to deny relief to the plaintiffs after the Constitution is to permit what the Constitution expressly prohibits. This again is yet one more powerful reason why plaintiffs must be allowed to succeed. I shall not permit any fancied equity or conventional procedure to override the express prohibition of the Constitution. But all that we have produced so far under Article 35 of the Constitution is a new Parliamentary Act of .1956 which is only at best 3 badly revised edition of the Bengal Suppression of Immoral Traffic Act of 1933. If abolition is the avowed object and if traffic in human beings is prohibited by the Constitution, then it is difficult to explain why at least no legislative attempt has not so far been made on the lines of the law of prohibition dealing with another great social evil of drink. After the Constitution time has certainly come to remove the ancient accusation that the statutes in this country have winked at brothels and prostitution.
44. My conclusions therefore are (1) that (1874) 16 Eq 275 (A), has been misapplied and misunderstood in many cases in India, (2) that the principle in that case should not be understood as laying down an invariable and inflexible rule of disqualification for a plaintiff seeking the aid of Court, (3) that the principle of that case should be understood with the limitations referred to by Lord Selborne himself in that judgment, (4) that the true boundaries of Ayerst v. Jenkins (A), when applied in India were rightly indicated by Sir Subramanian Ayyar in ILR 28 Mad 413 (H) and Lokur J., in : AIR1947Bom198 , (5) that refusal by the courts to grant relief on the basis of such maxims as ex turpi causa non oritur actio or pari delicto or particeps criminis is based on grounds of public policy and therefore if the same or higher public policy demands in a particular context that relief should be given then such maxims should not be used any more as a bar and the courts should not deny relief, (6) that the rule in Ayertft v. Jenkins (A), should never be used to (a) defeat statutes like Section 6(h)(2), of the Transfer of Property Act, (b) make the plaintiff liable to prosecution, conviction and punishment under such statute as the Bengal Suppression of Immoral Traffic Act and (c) violate the express prohibition of the Indian Constitution such as the Article 23 saying that traffic in human being is prohibited, and (7) that this rule in Ayerst v. Jenkins (A), in any event should not be extended to the class of innocent trustees and executors who are administering the estates under orders of Court,
45. For these reasons, I allow the appeal and decree the plaintiffs' suit for possession. I hold that the defendant's possession is wrongful and the defendant is a trespasser. Damages for ordinary trespass will therefore have to be nominal and are assessed at 50 N. P. (Nave Paise) per diem from 1-10-1946 being a reasonable time after the notice of 10-9-1946, until delivery of vacant possession.
46. The appeal is allowed with costs to the appellants. The trustee plaintiffs will be entitled to retain their costs as between attorney and client out of the estate in their hands.
47. Each party will pay and bear its own costs in the trial court below.
48. Certified for two Counsel.
R.S. Bachawat, J.
49. This appeal arises out of a suit for ejectment. One Ranu Bala was the owner of premises No. 9/2, Sonagachi Lane, Calcutta. She was a woman of the town. In 1942 she let the defendant Sm. Tulsibala Dasi, another woman of the town, into possession of the premises as a monthly tenant. The premises are situated in a locality where there are numerous other brothels. Since the inception of the tenancy the premises have always been used as a brothel. More than one woman carry on prostitution there. Even before the defendant became a tenant she was a woman of the town and carried on prostitution.
50. The plaintiff alleges that the premises were let to the defendant by Ranu Bala for the purpose of running a brothel. This is denied by the defendant. The learned trial Judge has found that the plaintiffs have not proved their case on this point. We are constrained to differ from this finding of the learned Judge. The surrounding circumstances, the occupation of the defendant, the locality in which the premises were situated and the subsequent continuous user of the premises as a brothel, all unmistakably point to the conclusion that the premises were let to the defendant for the purposes of running a brothel.
51. We can draw this inference as a matter of fact even without taking into account the evidence of Ratanbala. I am satisfied that the evidence of Ratanbala on this point also ought to be accepted. She has sworn that the premises were let for the purpose of running a brothel. She is no doubt an unreliable witness. She has demonstr-ably told several untruths. That means that the court should approach her evidence warily and should not accept her evidence unless it is corroborated by other unimpeachable evidence. The surrounding circumstances corroborate her evidence. The defendant Tulsibala has not stepped into the witness box to deny the testimony given by Ratanbala and the other witnesses. The absence of the defendant from the witness box is strong corroboration of the plaintiffs case.
52. I am satisfied that the premises were let for the purpose of running a brothel. Both Ranubala and the defendant were women of the town and they clearly knew of the immorality of the purpose for which the premises were let.
53. Ranubala has since died. Two of the plaintiffs are executors to the Will of Ranubala. All the three plaintiffs are trustees of the trust created by her Will. In agreement with the learned trial Judge I find that the plaintiffs did not accept the defendant as a tenant after the death of Ranubala.
54. The plaintiffs did not serve upon the defendant a notice to quit of the premises as required by Section 116 of the Transfer of Property Act. They made upon the defendant a demand for giving up possession. Possession not being given they have brought this suit. The plaintiffs plead and prove that they are the owners of the premises. They boldly plead and prove that the lease was for the purposes of running a brothel. They have to disclose the illegality of the lease as a necessary part of their case. If the lease is lawful and valid, the plaintiffs cannot succeed for the requisite notice to quit has not been given.
55. It is proved that the object of the lease is immoral and unlawful within the meaning of Section 23 of the Indian Contract Act. The lease is therefore in contravention of Section 6(h) Clause 2 of the Transfer of Property Act. The defendant resists the claim for ejectment. Her counsel contends that (a) the plaintiffs are privies to Ranubala who was a particeps criminis in an immoral and illegal transaction, (b) the court will not lend its aid to a particeps criminis and her privy who cannot succeed without showing the illegality of the transaction in which she participated, (c) the lease is voidable and not void and (d) relief should be refused following the principles of (1874) 16 Eq 275 (A). Learned counsel for the plaintiffs contend that (a) the lease is void and not voidable, (b) the plaintiffs may ignore the lease and sue for possession and are entitled to relief as a matter of right, (c) The Case of (1874) 16 Eq 275 (A), has no application to a case where the transfer for illegal purposes is void. (d) In any event the plea of particeps criminis is not material because public interest requires that relief should be, given to the plaintiff. (e) The plaintiffs are not particeps criminis though they claim title through Ranubala.
56. To appreciate the respective contentions of the parties it is necessary to discuss the precise scope of the rule of public policy which denies relief to particeps criminis and to understand how in practice the rule is applied to transfers and contracts made for some unlawful (including immoral) object or consideration. The rule originated in England. It is necessary and desirable to state the English law before I discuss the Indian law.
57. I believe that the English law on the point is as follows :
58. The rule which denies relief to particeps criminis is grounded upon public policy. The rule itself and the reasons upon which the rule is founded are stated thus by Mansfield in his classical judgment in Holman v. Johnson, (1775) 1 Cowp. 341 at p. 343 (T):
'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, there the court says he has no right to be assisted. It is upon that ground the court goes, not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So, i the plaintiff and defendant were to change sides, and the defendant were to bring his action against the plaintiff, the latter would then have the advantage of it, for where both are equally in fault, potior est conditio defen-dentis'.
59. In the earlier case of Montefiori v. Montefiori, (1762) 1 Wm BI. 363 (U), Mansfield C. J. rules that 'no man shall set up his own iniquity as a defence any more than as a cause of action'. The ruling was approved in Doe v. Roberts, (1819) 2 B and Ald. 367 (V). The strictness of that ruling is much relaxed by the rule in (1775) 1 Cowp 341 (T). The defendant is allowed to plead his own iniquity as a defence where his iniquity is also the iniquity of the plaintiff. Where both parties to an illegal transaction knew or had the means of knowing that the transaction is illegal, neither of the particeps criminis is debarred from pleading and showing the illegality. The particeps criminis who conies to court as plaintiff with turpi causa cannot maintain his action not because he is estopped from alleging his own iniquity but because no court will lend its aid to such a plaintiff.
60. Now observe how in practice the rule in Holman v. Johnson (T) is applied to contracts and rights of property.
61. In general courts refuse to give relief to a party to an illegal contract who either founds his cause of action upon it or who has necessarily to disclose or plead its illegality to sustain his cause of action.
62. An illegal contract cannot be enforced either at law or in equity by a particeps criminis.
63. In general courts will not allow a particeps criminis to recover moneys paid on an illegal contract. Collins v. Blantern, (1767), 2 Wils 341 at p. 350 (W). The courts do not enforce the contract directly nor in general allow an action for moneys had and received to be maintained for its recovery.
64. There is a distinction between enforcing an illegal contract and enforcing rights of property acquired under it or under some transaction tainted with illegality. Rights of property so acquired are protected and enforced.
65. Right of general property as owner, (1945) 1 KB 65 at p 70 (R) and of special property as pledgee, Taylor v. Chester, (1869) 4 QB 309 at pp. 311, 315 (X) and a right of lien, Scarfe v. Morgan (1838) 4 M and W 270, at pp. 274, 281 (Y), pass though such rights are acquired under an illegal contract. 'If an illegal contract is executed and a property either special or general has passed thereby the property must remain' per Parke B. (1838) 4 M and W 270, 281 (Y).
66. Ownership of money is acquired though it is earned in an illegal business. Gordon v. Chief Commissioner of Metropolitan Police, (1910) 2 KB 1080 (Z).
67. A lease of real property is valid though the purpose of the lessor Feret v. Hill (1854) 15 CB 207 (Z-1); or of the lessee Alexander v. Rayson, (1936) 1 KB 169, at pp. 184-7 (Z-2) -- in obtaining or granting the lease is illegal,
68. A fortiori a completed gift of shares passes the legal title though the donor may have made the gift for some illegal purpose of his own (1874) 16 Eq 275 at pp. 283, 284 (A).
69. The title general or special passes at law and the transferee may defend his possession of the property on the strength of such title. (1869) 4 QB 309 (X); (1936) 1 KB 169, at p. 186 (Z-2).
70. The transferee may even as plaintiff by action recover possession of the property to which he is entitled from a third party. (1910) 2 KB 1080 (Z), and from the transferor. (1854) 15 CB 207 at pp. 219, 223, 225, 227 (Z-l). In such a suit the plaintiff seeks to enforce not the illegal contract but a right of property acquired under it and in general the courts will not refuse their aid to such a plaintiff.
71. If the transfer is of a right of special property only, the right of general property retained by the transferor will be recognised and enforced and the transferor may by action recover the property on the strength of his own title when the transferee's right of special property is extinguished. (1945) 1 KB 65 (R). In such a suit the plaintiff need not found his cause of action upon the illegal contract nor plead its illegality in support of his claim.
72. In the transfer itself is prohibited by statute the transfer is void and title to the property does not pass.
73. In Lapierre v. M'Intosh, (1839) 9 Ad. and El. 857 (Z-3), the defendant owner unlawfully agreed to grant a lease of a property for 21 years to the plaintiff who took possession of it with a view to carry out the agreement. The plaintiff was a stranger artificier and handicraftsman and a lease to such a stranger was void by statute - Henry 8 C 16 Section 13. The defendant subsequently entered and took possession of the property, the door being open and no person being therein of whom possession could be demanded The plaintiff sued for trespass and for breaking aad entering the property and expelling him. The court held that he could not maintain the action. The agreement was illegal whether it amounted to a lease or was an agreement for one. The plaintiff had no interest which the law could recognise. It was competent for the defendant to enter and expel the plaintiff.
74. The case is instructive as showing that no title passes if the transfer itself is illegal. Could not the owner in that case sue for possession ignoring the void lease instead of entering and taking possession himself? The owner is entitled to his own property and is not necessarily debarred from recovering it by action, because it has come to be in possession of the defendant in consequence of some unlawful transaction to which the owner was a party and by which the defendant has not acquired any title or interest in the property.
75. In general courts of equity do not interpose to grant relief in respect of an illegal transaction to a plaintiff implicated in the illegality following the rule of law as to particeps criminis, and acting upon the maxim, that in pari delicto potior est conditio defendentis, (1874) 16 Eq 275 at p 283 (A). But this is not universally true. The recrimination of particeps criminis is not material where the agreement or transaction is against public policy for then relief is given to the public through the plaintiff. Story on Equity Jurisprudence. Third English Edition by A. E. Rendall article 298, Lord St. John v. Lady St. John, (1805) 11 Ves 526 at p. 536 (Z-4).
76. The bar to relief in equity is sometimes described as an estoppel. There is no estoppel against public policy. In (1874) 16 Eq 275 at p. 283 (A), Lord Selborne observed
'when the immediate and direct effect of an estoppel in equity against relief to a particular plaintiff might be to effectuate an unlawful object or to defeat a legal prohibition or to protect a fraud, such an estoppel may well be regarded as against public policy.'
77. Unless some special ground of equitable interference is made out a court of Equity will not aid the plaintiff to recover property which he has allowed to be legally vested in the defendant for some unlawful purpose. The court will 'let the estate lie where it falls.'
78. Thus ordinarily the court will not aid the settlor seeking to recover property which he has allowed to be vested in the defendant for an illegal purpose. Muckilston v. Brown (1801) 6 Ves 52 at p. 67 (Z-5), explaining Cottington v. Fletcher, (1741) 2 Atk 155 (Z-6). Gascoigne v. Gascoigne, (1918) 1 KB 223 (Z-7).
79. And in general the court will not at the instance of particeps criminis set aside a transfer valid at law and made for an unlawful purpose. See (1874) 16 Eq 275 (A).
80. In (1874) 16 Eq 275 (A), the court refused to set aside a transfer of shares legally vested in trustees at the suit of the legal representative of the settlor, one William Hardinge. The shares were transferred by the settlor to trustees upon trusts for the benefit of his deceased wife's sister one Isabella Buckton declared by a contemporaneous deed to which the settlor, the lady and the trustees were parties. The deed on the face of it was voluntary. It was executed some time after the lady and the settlor had agreed to cohabit under colour of a fictitious marriage. Two days after the deed the settlor and the lady went through a form of marriage though marriage with a deceased wife's sister was prohibited by an Act of Parliament. The two lived together till the death of the settlor which happened four months afterwards. More than eight years afterwards, the lady remarried without a settlement relying on the provision made for her by the impugned deceased. The lady enjoyed the full benefits given to her by the deceased. The bill was filed by the legal representative of the settlor ten years after the death of the deceased seeking a declaration that the deed was void on the ground that it was made in consideration of the then intended unlawful co-habitations of the settlor and the lady. The lady swore that there was no bargain or contract for any settlement, that she regarded the deed as a free and voluntary gift and that it was not offered by him nor accepted or understood by her as binding her to the fulfilment of the promise of cohabitation previously made. There was no evidence of the facts beyond her statement. A memorandum of instructions given by the settlor to his solicitor was put in evidence. It described the lady as 'Isabella Buckton commonly called Mrs. Hardinge'. These instructions had not been acted upon. The settlement was valid at law and the justice of the case did not require interference by a court of Equity. The result of granting the relief would have been to commit a crude injustice to the lady. In these circumstances relief was refused because it was sought (1) by the representative of not merely a particeps criminis but of a voluntary and sole donor on the naked ground of the illegality of his own intention and purpose, (2) after the illegal purpose had been accomplished and (3) after long delay, (4) against a completed transfer of chattels legally vested in trustees and irrevocable in law and (5) the balance of equitable consideration was in favour of the defendant. While dismissing the bill, Lord Selborne observed at page 285 or the Law Report
'There is no legal ground on which the efficacy of the transfer of the shares in question can be disputed: and so far as equitable consideration enter into the case they appear to me to be in favour of the defendant.'
81. This case did not lay down a rigid rule that a court of Equity will never set aside a transfer tainted with illegality and valid at law. The case of Wooton v. Wooton noticed and distinguished in (1874) 16 Eq 275 at pp. 276, 283-4 (A), shows that the court may set aside a mutual settlement made on the occasion of a fictitious marriage so as to prevent continuance of the illicit connection.
82. In W. V. B., (1863) 32 Bev 574 (Z-8), B and his five children viz., his daughter C and four others bv an indenture covenanted to surrender a copyhold estate by way of mortgage, to W for securing a sum of money lent by him to B. Part of the consideration was the permission of B to allow W to continue his visits to G whom he was seducing, or had seduced. Sir John Romilly M. R. dismissed a bill by W to enforce the deed and to foreclose the mortgage and decreed a cross bill by B and his two daughters to cancel the deed on the ground inter alia that 'others besides the parties to the corrupt bargain are affected by this deed.'
83. Where the instrument is void at law on account of illegality not appearing on the face of it and the transaction is such that on grounds of public policy it cannot stand a Court of Equity will decree its cancellation on equitable terms and the plaintiff will not be debarred from relief on the ground that he is particeps criminis : Halsbury second Edition Vol. 14 Article 973 page 513. If the illegality appears on the face of the instrument the court does not interpose for then there is no danger of loss of available evidence by lapse of time and relief in equity is unnecessary. Illegal covenants and bonds are void at law and their cancellation may thus be decreed on equitable terms.
84. In (1805) 11 Ves. 526 at pp. 535-6 (Z-4), Erskins L. C. dealing with a bill for cancellation of articles between husband and wife for future separation said to be void at law ruled that where the instrument was void upon grounds of policy, the court would order it to be delivered up, that the conduct of the party applying was out of consideration of the court and that where the transaction was against policy it was no objection that the plaintiff himself was a party to the transaction which is illegal,
85. The Courts give relief liberally to a particeps criminis and even decree refund of money paid and cancellation of bills given in respect of marriage brocage contracts: Shirley v. Ferrers, (1730) 3 P Wms 77 (Z-9), cited in (1805) 11 Ves 526 at p. 536 (Z-4), and in respect of sales of public offices: Morris v. McCulloch, (1763) 2 Eden 190, at pp. 192, 193 (Z-10), Whittingham v. Burgoyne, (1797) 3 Anst. 900 at pp. 903-4 (Z-11). Public interest requires that relief be given to the public through the party and the recrimination of particeps criminis is not material. In the case last cited McDonald C. B. observed that public policy requires interference by the court to check vicious practices,
86. In general the courts also give relief to a particeps criminis suing to recover money paid or property parted with under an illegal transaction (a) where the plaintiff is not in pari delicto and also (b) where the illegal purpose has not been carried into execution: Taylor v. Bowers (1876) 1 QBD 291 at p. 296 (Z-12); Symes v. Hughes, (1870) 9 Eq 475 (Z-13).
87. Indeed the modern doctrine in England appears to be that the maxim in pari delicto potior est conditio defendentis is no guide in determining in what cases relief ought to be given to or withheld from the plaintiff. That question must be determined independently before the maxim is applied. In (1945) 1 KB 65 at p. 72 (R), Du Parcq, L. J. referring to that maxim observed
'Its true meaning is that, where the circumstances are such that the court will refuse to assist either party, the consequence must, in fact, follow that the party in possession will not be disturbed.'
88. In general tbe courts decline to grant relief to a plaintiff who claims title through a particeps criminis if his case is such that relief would have been denied to the pnrticeps criminis has he come to the court as plaintiff with the same case. Thus relief was denied to the legal representative of the settlor seeking to set aside a settlement on the ground of the illegal purpose of the settlor, (1874) 16 Eq. 275 (A), and to the trustee in bankruptcy seeking to recover moneys paid by the bankrupt under an illegal arrangement, (1876) 4 Ch. D. 150 (E), but not to the trustee in bankruptcy seeking to recover such money if at the date of the payment it was vested in him by relation back of his title: Ex parte, Wolverhampton Banking Co; In Re Campbell, (1884) 14 QBD 32 (Z-14). In (1801) 6 Ves 52 at pp. 59, 67-8 (Z-5), heirs at law were allowed to maintain against the residuary devisees, legatees and executors a bill claiming discovery accounts and a declaration that the plaintiffs were entitled to the residue of the testator's real estates on the ground that the testator had made a secret trust for charitable purposes, that the trusts were not legally declared and even if so declared were illegal and void being forbidden by the Mortmain Act and that there was a resulting trust in favour of the plaintiffs. The heirs at law there came to be relieved against an act of the ancestor which defeated the whole policy of the law and which was really a fraud upon the heirs and their right to take the estate in the absence of a legal disposition. In such exceptional circumstances the delictum of the ancestor could not be imputed to the heirs-at-Law and relief could not be denied to them on the ground that the ancestor would have been denied relief.
89. Let us now turn to the Indian Law. The sources of our law with regard to the effect of illegality on contract and rights of property and a claim for relief by particeps criminis are three-fold viz: (1) our statute law particularly The Indian Contract Act, The Transfer of Property Act and the Specific Relief Act, (2) Rules of English Jaw, (3) our judicial decisions.
90. Our statutory law is paramount. All rules of English Common Law and Equity must yield wherever they differ from the positive law of the statutes.
91.. The rule in (1775) 1 Cowp 341 (T), is now firmly entrenched in our system of law and forms an integral part of it.
92. The rule must be applied with due regard to our statutes. In applying the rule we have sometimes omitted to notice our statutes and the differences between our law and the English law particularly with regard to the effect of illegality on transfers of property.
93. I will clear one point at the outset. I think that in general a privy to particeps criminis stands in the same position as the particeps criminis and our law is on a par with English law on the point. In general a plaintiff claiming title through a particeps criminis as his heir will be denied relief if on the same case the particeps criminis would not have got relief.
94. In ILR 31 Bom 405 at p. 412 (L), Ten-kins, C. J. expressed a doubt if the son and heir of a particeps criminis could be said to be in pari delicto and that doubt was shared by Patkar, J. in Sabava v. Yamanappa, AIR 1933 Bom 209 at p. 214 (Z-15). Still I think that in general the heir is in pari delicto if the ancestor was because the delictum of the ancestor is imputed to the heir claiming through him. Jenkins, C. J. relied upon Mathew v. Hanbury, (1690) 2 Vern 188 (Z-16), a case which had been expressly overruled by (1874) 16 Eq 275 at p. 281 (A). He also relied upon (1801) 6 Ves 52 at pp. 67-8 (Z-5), an exceptional case where heirs at law were relieved against an illegal act of the ancestor which was really a fraud upon them. Long ago Kalinauth Kur v. Doyal Kricto Deb, 13 Suth WR 87(Z-17), decided clearly that the plaintiff could not be permitted to plead the fraud of his own father through whom he derived his title. In this connection it is however necessary to remember that 36 CLJ 491: (AIR 1923 Cal 90) (J), dissented from both ILR 31 Bom 405 (L), and 13 Suth WR 87 (Z-17), in so far as they acted upon (1819) 2 B and Ald. 367 (V), and decided that a particeps criminis could not plead his own fraud and illegality.
95. An agreement the object or consideration of which is unlawful within the meaning of Section 23 of the Indian Contract Act is by that section made unlawful and void.
96. Paragraph 2 of Section 56 of the Indian Contract Act allows relief to the promisee who did not know the promise to be unlawful against the promisor who knew or with reasonable diligence might have known it to be unlawful.
97. In general a particeps criminis cannot obtain restoration of any advantage received by the other party under an illegal agreement by recourse to Section 65 of the Indian Contract Act. The courts have ruled that where both parties are aware of the illegality it cannot be said that the agreement is discovered to be void within the meaning of that section: Nathu Khan y. Sewak Koeri, 15 Cal WN 408 (Z-18), and Amjadennessa Bibee v. Rahim Baksh, 19 Cal WN 383 : (AIR 1916 Cal 74) (Z-19).
98. Section 65 of the Indian Contract Act being out of the way in general a party to an illegal contract cannot obtain refund of money paid under it (See Ledu Coachman v. Hiralal, ILR 43 Cal 115: 19-Cal WN 919: (AIR 1916 Cal 266) (Z-20).
99. A transfer for an unlawful object or consideration within the meaning of the Indian Contract Act is prohibited by Section 6(h) Clause 2 of the Transfer of Property Act. Such a transfer does not pass any title. It is void and need not be set aside. Ghumna v. Ramchandra Rao : AIR1925All437 , and : AIR1947Bom198 , are clear rulings on this point. Even a third party has been allowed to snow that the transfer is void and inoperative. In Saleh Abraham v. Manekji Cowasji : AIR1924Cal57 , the defendant in possession of the property was allowed to defeat a suit for his ejectment brought by a person claiming to be the lessee of the property by showing that the object of the lease was of such a nature that if permitted it would defeat the provision of the Calcutta Rent Act and as such was unlawful within the meaning of Section 23 of the Indian Contract Act and that consequently the lease was void and conferred no title on the plaintiff.
100. Section 6(h) Clause 2 of the Transfer of Property Act has no counterpart in English law. Under that law a transfer pursuant to an illegal agreement or for an illegal purpose is valid at law. (1874) 16 Eq. 275 (A), lays down the principles upon which a Court of Equity may or may not set aside a transfer so valid at law and made by a transferor for an illegal purpose of his own. In our system of law a transfer for an unlawful object or purpose in contravention of Section 6(h) CL 2 of the Transfer of Property Act is a nullity and need not be set aside. The case of (1874) 16 Eq. 275 (A), has no application to a case where the transfer is void and a suit for recovery of possession of the property is brought either by the transferor on the strength of his original title or by the transferee claiming title on the basis of the transfer. The assumptions and rulings to the contrary in ILR 44 Mad 329 : (AIR 1921 Mad 326 (2) ) (B), and AIR 1933 Bom 209 (Z-15), are erroneous and those rulings ought not to be followed on this point.
101. The transferee does not acquire any title under a transfer in contravention of Section 6(h) Clause 2 of the Transfer of Property Act and cannot recover possession of the property on the strength of such transfer.
102. What if the transferor sues the transferee for recovery of possession of the identical property transferred on the strength of his original title and: claiming the transfer to be void?
103. It is argued that denial of relief to the plaintiff transferor and the consequent retention of the property by the transferee defeat the mandatory provision of Section 6(h) Clause 2 of the Transfer of Property Act and that public policy is advanced more by granting relief than by refusing it. This argument raises a very broad question to which a decisive answer need not be given in this case.
104. Without deciding that broad question it is clear that in spite ot the recrimination of particeps criminis the plaintiff transferor may recover possession of the property transferred at least in the following cases.
105. Section 84 of the Indian Trusts Act recognises three exceptions to the rule denying relief to a particeps criminis. Where the owner of property transfers it to another for an illegal purpose . the transferee must hold the property for the benefit of the transferor if (a) the illegal purpose is not carried into execution or (b) the transferor is not as guilty as the transferee or (c) the effect of permitting the transferee to retain the property might be to defeat the provisions, of any law. The transferor is prima facie entitled to recover the property from the transferee if his case falls within one of these three exceptions.
106. Section 84 of the Indian Trusts Act is, not exhaustive of the cases where relief may be given to the transferor making the illegal transfer. Relief may be given to the transferor suing to recover possession of the property from the transferee where (e) public interest or the interest of third parties require that the relief should be given or (b) where denial of the relief may defeat a legal prohibition (c) where the transfer ought not to be allowed to stand on grounds of policy. Reasons of public policy allow the defendant to take the plea of particeps criminis. In the circumstances mentioned greater reasons of public policy allow the plaintiff to repel the plea.
107. It is not necessary to decide in this case if the transferor should be allowed to recover possession of the property from the transferee under other circumstances also.
108. In : AIR1925All437 , an heir of the transferor was allowed to plead that the transfer being in consideration of future illicit connection was void and to recover the property from the transferee. But the plea of particeps criminis was not raised and was not considered by the court.
109. In : AIR1947Bom198 , transfers in consideration of past illicit cohabitation were held to be void and the transferee not having allowed cohabitation lay reason of the transfers the heirs of the transferor were permitted to recover possession of the properties from the transferee.
110. The transferor need not sue for cancellation of the void instrument of transfer but if he does so the court has discretionary power to grant him relief under Ss. 39 to 41 of the Specific Relief Act. In ILR 28 Mad 413 (H), the court at the suit of the transferor set aside a deed of assignment made in consideration of future illicit cohabitation distinguishing (1874) 16 Eq. 275 (A). The judgment does not refer to either Section 6(h) Clause 2 of the Transfer of Property Act or Section 39 of the Specific Relief Act.
111. The power of the court to decree cancellation and rescission of an unlawful contract in writing is regulated by Sections 35(b), 38, 39 to 41 of the Specific Relief Act.
112. I will now briefly notice several of the cases dealing with benami transfers made with a view to shield the property from the creditors of the transferor. Where the fraudulent purpose has been achieved the courts have refused to give relief to the real owner who sued the banamdar for setting aside the documents of transfer and for confirmation of title and possession. Banka Behary v. Raj Kumar, ILR 27 Cal 231 (Z-23), as also to the benamdar who sued the real owner for recovery of possession on establishment of title, 36 Cal LJ 491: (AIR 1923 Cal 90) (J). But where the fraudulent purpose has not been carried into execution the courts have given relief to the real owner who sued the benamdar for recovery of possession and for cancellation of documents, 35 Ind App 98 (PC) (N), and to the real owner who sued for declaration of title and for recovery of possession from the defendant in whose favour he had executed a deed of relinquishment, Jadunath v. Ruplal, ILR 33 Cal 967 (Z-24). In this special class of cases we have encouraged scrambles for possession and manoeuvres for the position of being a defendant and the law of the jungle prevails. Though in ILR 27 Cal 231 (Z-23), a benami conveyance was said to give a good legal title to the benamdar, in 35 Ind App 98 (PC) (N), the Privy Council acted upon the view that a benami transfer was not intended to be an operative instrument and as such need not be set aside and did not bar a suit for recovery of possession by the real owner and that as soon as the benami was made out the benamdar disappeared from the title. The benami is a mask but the courts will not allow the mask to be torn off when the illegal purpose is accomplished. The mask then becomes a reality. In this view of the matter a benami transfer is not a real transfer and is hot a transfer in contravention of Section 6(h) Clause 2 of the Transfer of Property Act. In fact the cases cited do not even refer to that provision of law. These cases do not decide when the court should grant or withhold its aid to the parties to a transfer made in contravention of Section 6(h) Clause 2 of the Transfer of Property Act nor do they decide that relief should be denied to the transferor in all cases where the illegal purpose has been carried into execution.
113. I will also notice some cases of invalid registration of documents due to fraud upon the Registration Laws by inclusion of properties either fictitious or not intended to be transferred. Clearly the defendant can raise the plea of invalid registration though he is the transferor and a party to the fraud. Ramnandan Prasad v. Chandradip Narain, AIR 1940 Pat 504 : 19 Pat 578 (Z-25). But in Venkataswami v. Venkatasubbaya, ILR 55 Mad 507: AIR 1932 Mad 311 (Z-26), it was held that the court will not aid the transferor particeps criminis who comes as plaintiff who seeks to recover the property on the plea that the registration is invalid and consequently title to the property has not passed. Reilly, J. cited (1918) 1 KB 223 (Z-7), and the older cases where the courts did not allow the settlor to recover property legally vested in trustees on finding that the trust is for an unlawful purpose. Anantakrishan Aiyar, J. notices some cases on benami transfers and cases on recovery of moneys paid under illegal contracts. They do not seem to consider how far and within what limits the rule as to particeps criminis is applied in English law to transactions void at law on account of illegality. If the registration is invalid the legal title does not pass. There is no estoppel against statute. The decision in ILR 55 Mad 507 : (AIR 1932 Mad 311) (Z-26). may be supported on the ground stated by Reilly, J. that the transferee in possession of the property is entitled to remain in possession by using the unregistered document as a shield under Section 53-A or the Transfer of Property Act. In Venkata Rama Rao v. Sobhanadri Appa Rao , the plaintiff was allowed to take the plea of invalidity of registration and to show the fraud of his father who as guardian of the plaintiff had sold the property. The exact point decided by ILR 55 Mad 507 : (AIR 1932 Mad 311) (Z-26), does not arise here and it is not necessary to consider that case in greater detail.
114. I will summarise by conclusion as follows :--
(1) The rule in (1775) 3. Cowp 341 at p. 3431 (T), forms an integral part of our law.
(2) In general courts refuse to give relief to a party to an illegal contract who either founds his cause of action upon it or who has necessarily to disclose or plead its illegality to sustain his cause of action.
(3) An agreement the object or consideration of which is unlawful as defined by Section 23 of the Indian Contract Act is unlawful and void.
(4) In general a particeps criminis cannot obtain refund of money paid under an unlawful agreement.
(5) In English law (a) a completed transfer of property made under an unlawful agreement or for an unlawful purpose is valid at law. (b) The tide so acquired is protected and enforced and may be used by the transferee both as a shield and as a weapon of offence. (c) In the absence of some special ground of interference a Court of Equity will not on the ground of illegality set aside a transfer valid at law and will let the estate lie where it falls, (d) (1874) 16 Eq. 275 (A), lays down the principles upon which a Court of Equity may or may not set aside such a transfer.
(6) The case of (1874) 16 Eq. 275 (A), has no application where the transfer is void.
(7) In Indian law a transfer for an unlawful object or consideration within the meaning of Section 23 of the Indian Contract Act is prohibited by Section 6(h) Clause 2 of the Transfer of Property Act. Such a transfer is void and need not be set aside.
(8) In Indian law the transferee cannot recover I the property on the strength of such a transfer.
(9) In Indian law the transferor claiming that the transfer is void may sue to recover the property on the strength of his original title and in general he may be given relief though he is particeps criminis in the following cases :
(a) Where his case falls within one of the three exceptions recognised by Section 84 of the Indian Trusts Act or
(b) (i) Where public interest or the interest of third parties require that the relief should be given or (ii) where denial of the relief may defeat a legal prohibition, or (iii) where the transaction is such that it ought to be allowed to stand on grounds of public policy.
Relief may be given upon such terms as the' justice of the case may require.
It is an open question whether the transferor & should be given relief under other circumstances also.
(10) When an instrument is void on account of illegality not appearing on the face of it and the transaction is such that it cannot stand on grounds of public policy, the Court will decree its cancellation at the suit of the particeps criminis on equitable terms, The power of the Court to decree cancellation of void instruments of transfer must be exercised in accordance with Ss. 39 to 41 of the Specific Relief Act. The power of the Court to decree cancellation and rescission of unlawful con tracts in writing is regulated by Sections 35(b), 38 and 39 to 41 of the Specific Relief Act.
(11) Reasons of public policy allow the defendant to take the plea of particeps criminis. Greater reasons of public policy may allow the plaintiff to repel the plea.
(12) 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.
115. On the authorities I do not consider that we are free to hold that transfers in contravention of Section 6(h) Clause 2 of the Transfer of Property Act are valid until they are set aside. That point may be open to examination by a larger Bench or a higher court. The principles of (1874) 16 Eq. 275 (A), may be applied only if it can be held that such transfers are voidable only and not void.
116. A monthly tenancy is a lease and a transfer of property within the meaning of Section 6(h) Clause 2 of the Transfer of Property Act. In the instant case the monthly tenancy being in contravention of Section 6(h) Clause 2 of the Transfer of Property Act is void. There is no lawful tenancy and no lawful lease and the defendant has not acquired any interest in the property. The plaintiff is not bound to give any notice to quit as contemplated by Section 106 of the Transfer of Property Act. The giving of such a notice would be a farce considering -that the lease is void. Sufficient demand for possession has been made and the defendant is bound to vacate the property. The plaintiffs claim title to the property through the particeps criminis who is now dead. The plaintiffs are the owners of the property and are entitled to immediate possession thereof. The plaintiffs bona fide intend to use the premises for lawful purposes. The defendant has used and still uses the premises as a brothel.
117. We consider that no rule of law or equity or public policy preclude the plaintiffs from obtaining relief. Public interest and public welfare demand discontinuance of the brothel and of the user of the premises as a place of promiscuous sexual intercourse. Public interest is not served by the continuance of brothels which breed disease, sap the manhood and vitality of the State and degenerate posterity. The lease for immoral purposes ought not to be allowed to stand for reasons of public policy. Relief will be given to the public through the plaintiff if the suit is decreed and the vicious practices are checked. Regard for public welfare is the supreme law. (Salus populi est sunrema lex). To this maxim all other maxims of public policy must yield, for the object of all law is to promote the general well being of society. In my judgment plaintiffs are entitled to a decree for ejectment.
118. The so-called rent was fixed and promised on the expectation of the inflated earnings of prostitution. We do not consider such rent to be the true measure of the profits which the defendant could have lawfully earned from the premises. We have made a rough and ready assessment of the mesne profits having regard to all the circumstances. I agree to the order proposed.