Ramratna Singh, J.:— The only question to be decided in this second appeal is whether the plaintiffs-respondents are entitled to recover any sum of money from the defendants-appellants out of the amount that they paid as dowry in consideration of a contract for marriage.

2. The marriage of a daughter of one of the plaintiffs-respondents was settled with defendant No. 3, son of defendant No. 2. According to the contract, sagun phaldan took place on the 5th day of Chait 1360 Fasli and tilak ceremony was performed on the 15th day of Jeth 1360 Fasli when cash and utensils worth Rs. 251 had been delivered by the plaintiffs to the defendants as tilak. The marriage was to take place on the 1st day of Asarh 1360 Fasli, but the bridegroom's party did not go to the house of the plaintiffs for performing the marriage. Thereafter, the plaintiffs-respondents filed a case under Sec. 420 of the Indian Penal Code on the allegation that the other party had cheated them of Rs. 251 which they had paid as tilak and Rs. 2000 which they had paid as value of the ornaments for the bride which the bridegroom's party was to bring. This case ended in an acquittal and then the plaintiffs instituted a suit out of which this appeal arises.

3. The defendants stated that the sum of Rs. 251 as tilak was really paid, but the payment of Rs. 2000 on account of ornaments was denied. It was also alleged by the defendants that no marriage party was taken to the house of the plaintiffs because a day before the day fixed for the marriage, the plaintiffs informed the defendants that the girl would not be married on account of the fact that the bridegroom was suffering from epilepsy. The defendants made a counter claim of Rs. 531/8/- on the ground that they had incurred expenditure to that extent on account of preparations made for taking the barat party for the marriage. The last plea taken by the defendants was that the plaintiffs were not entitled to get any decree, because it was on account of their laches that the marriage had not taken place.

4. The trial court as well as the first appellate Court found that a sum of Rs. 2,251 was paid by the plaintiffs as tilak to the defendants. The courts below considered the relevant provisions of the Bihar Dowry Restraint Act, 1950, and found that the contract for the tilak was illegal. But, in as much as the marriage had not been per-formed, a decree in favour of the plaintiffs was passed for Rs. 2251 minus Rs. 180/8/- on account of the expenditure incurred by the defendants. This decree was confirmed by the first appellate court. Hence, this second appeal.

5. Mr. P.R Das, counsel for the appellants, relied on Secs. 2, 3 and 4 of the said Act and contended that, inasmuch as the contract for tilak was prohibited by law, the plaintiffs-respondents could not recover any sum on the strength of this illegal contract. According to the definition in section 2

“‘dowry’ means anything paid or delivered as consideration of a contract of any betrothal or marriage and includes

(i) tilak including chhenka where the amount paid in cash or kind or both exceeds two hundred and fifty-one rupees; or

(ii) dahez including dwarpuja, milan or zadrah where the amount paid in cash or kind or both exceeds two hundred and fifty-one rupees; butt does not conclude (sic).

(a) Kanyanirakshan or mathjhaks.

(b) Strikhan or any other religious obligations enjoined by the Hindu law or personal law applicable to the parties; or

(c) voluntary marriage gifts, such as ornaments to a bride and dresses to a bridegroom made at any time after the solemnisation of marriage.”

6. Sections 3 and 4 of the Act read thus:

“3. Any person who takes dowry shall, on conviction, he punishable with simple imprisonment which may extend to six months or with fine which may extend to the amount or value of the dowry taken or with both.

(4) Any person who gives dowry or abets the taking or giving of dowry shall, on conviction, be punishable with simple imprisonment which may extend to one month or with fine which may extend to one thousand rupees or with both.”

7. Thus, the contract under which the sum of Rs. 2251 was paid as tilak in the present case was in contravention of this law and the parties could be prosecuted under Secs. 3 and 4 for contravening the law. The contract was therefore, one which is prohibited by law.

8. The question, therefore, is whether the plaintiffs-respondents can recover any sum paid by them under this illegal contract. The principle applicable to such cases is summarised in Kedar Nath Motani v. Prahlad Rai, AIR 1960 SC 213 in these words:

“The correct position in law, in out opinion, is that what one has to see is whether the illegality goes so much to the root of the matter that the plaintiff cannot bring his action without relying upon the illegal transaction into which he had entered. If the illegality be trivial or venial, as stated by Williston and the plaintiff is not required to rest his case upon that illegality, then public policy demands, that the defendant should not be allowed to take advantage of the position. A strict view, of course, must be taken of the Plaintiff's conduct, and be should not be allowed to circumvent the illegality by resorting to some subterfuge or by misstating the facts. If, however, the matter is clear and the illegality is not required to be pleaded or proved as part of the cause of action and the plaintiff recanted before the illegal purpose was achieved, then, unless it be of such a gross nature as to outrage the conscience of the court, the plea of the defendant should not prevail.”

9. In laying down these principles their Lordships took into consideration the observation in some English decisions. Lord Mansfield, in Holman v. Johnson, (1775) 98 ER 1120, stated the law in the following words:

“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 if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it for where both are equally in fault, potior est conditio defendentis.”

10. Another observation referred to by their Lordships was that of Du Parcq, L.J in Bowmakers, Ltd. v. Barnet Instruments, Ltd., 1945-1 KB 65, which reads as follows:

“In our opinion, a man's right to possess his own chattels will, as a general rule, be enforced against one who, without any claim of right, is detaining them or has converted them to his own use even though it may appear either from the pleadings, or in the course of the trial, that the chattels in question came into the defendant's possession by reason of an illegal contract between himself and the plaintiff, provided that the plaintiff does not seek, and is not forced, either to found his claim on the illegal contract or plead its illegality in order to support his claim.”

11. Their Lordships also referred to three other decisions in which it was observed that a plaintiff could succeed only if he could sustain his claim otherwise than through the medium and by the aid of the illegal transaction to which he was himself a party. An observation of Lindley, L.J in Scott v. Brown, Doering, McNab and Co., (1892) 2 QB 724, which is also pertinent, is reproduced below:

“No Court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the Court, and if the person invoking the aid of the Court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality, the Court will not assist him.”

12. The view that the Court must not enforce any obligation arising out of a contract prohibited by law has been reiterated by Ramaswami, C.J, and Kanhaiya Singh, J., recently in Sewsagar Avasty v. Satyanarain Sah, AIR 1960 Pat 145. In that case, the plaintiff, who had a license under the Bihar Cotton Cloth and Yam Dealers (Licenseing and Control) Order, 1944, supplied standard cloth, as defined in Sec. 2(10) of the Order, to the defendant, who had no license, for being sold in his shop and it was held that the amount due as the price of standard cloth is not a lawful claim made by the plaintiff and, therefore, the appropriation of a portion of the payment made by the defendant towards the price of standard cloth is also not permissible in the eye of law.

13. The same principle was laid down by two earlier decisions of this Court. In Hadibandhu Behara v. Gopal Sahu, 210 Ind Cas 289 : (AIR 1943 Pat 374), the plaintiff, a liquor contractor entered into an agreement with the defendants, whereby the entire charge of the excise shop was given the defendants on the condition that they would pay certain amounts to the plaintiff. In spite of demands, the defendants did not pay these amounts; and the plaintiff in situted a suit for recovery of the same.

14. It was held that, inasmuch as the agreement was void, being contrary to Rule 143 framed Under Section 89 of the Bihar and Orissa Excise Act, 1915, and in as much as both the parties were in pari delicto in procuring this illegality, the plaintiff was not entitled to any decree. In Haghubar Das Mahant v. Natabar Singh 51 Ind Cas 280 : (AIR 1919 Pat 316), another Division Bench of this Court said that the Courts in India will not assist a party to recover back his money paid in respect of a contract which is tainted with criminality or immorality even though the contract has not been performed.

15. In the present case both the parties were in pari delicto or equally guilty in entering into an illegal contract for payment of tilak and the payment of the tilak money attracted the penal provisions contained in Section 3 of the Bihar Dowry Restraint Act, 1950; and the Court ought not to enforce any obligations arising out of the contract.

16. Reliance was, however placed by the learned advocate for the plaintiffs-respondents on two decisions of the Patna High Court in Dharnidhar v. Kanhji*, AIR 1949 Pat 250 and Gopi v. Janak*, AIR 1951 Pat 519. Both these decisions were in respect of claims for refund of tilak money which had been paid by the plaintiffs and the Court decreed the claim, as marriage had not been performed. But these decisions and some earlier decisions which were referred to therein were in respect of a contract for tilak before such a contract was prohibited by law. It is not necessary to discuss the case of Gopi Krishna Prasad, AIR 1951 Pat 519 in detail as it followed the previous decisions. But is necessary to refer to certain observations of Ramaswami, J. (as he then was), in the case in Dharnidhar, AIR 1949 Pat 250. His Lordship referred to the following observation of Mellish, L.J in Taylor v. Bowers, (1876) 1 QBD 291 in support of the view that the money could be recovered, in as much as the marriage had not been performed:

“If money is paid or goods delivered for an illegal purpose, the person who had so paid the money or delivered the goods may recover them back before the illegal purpose is carried out; but of he waits till the illegal purpose is carried out, or if he seeks to enforce the illegal transactions, in neither case can he maintain an action.”

17. But in that case, tilak had been paid in pursuance of a contract for marriage; and (in?) those days payment of tilak in pursuance of such a contract was not prohibited by law. Moreover, as explained in a subsequent English decision, Taylor's case, (1876) 1 QBD 291 was a case of locus paenitentiae, that is, a case in which the party had a right to withdraw from an incompleted transaction and the plaintiff had actually repented and withdrawn from the contract before it was executed.

18. The law on the Subject was reviewed by Pritchard, J. in Bigos v. Jousted, (1951) 1 All ER 92; wherein all the important English authorities are discussed. After quoting the observation of Lindley, L.J, the learned Judge has stated that in such a case the person resisting the claim possesses the advantage over the peron making it, the maxim being in pari delicto potior est conditio defendentis. He has then referred to the first exception to this rule, which applies to cases in which it can be said that the parties are not in pari delicto, that is, they are not equally guilty. This exception does not apply to the present case, because both the plaintiffs and the defendants were equally guilty, in as much as they made a contract regarding tilak in violation of the provisions of the Bibar Dowry Restraint Act, 1950.

19. Then, Pritchard, J., referred to another exception to the rule, viz., that, where the contract is still executory, a party is allowed what is called a locus paenitentiae. Reliance has been placed upon this exception in the present case also by the learned advocate for the plaintiffs-respondents. After discussing several decisions Pritchard, J., observed:

“I think that what is to be extracted from the authorities, may be stated as follows: I think that they show, first, that there is a distinction between what way, for convenience, be called the repentance cases, on the one hand, and the frustration cases, on the other hand. If a particular case may be held to fall within the category of repentance cases, I think the law is that the court will help a person who repents, provided his repentance comes before the illegal purpose has been substantially performed. If I were able, in the case, to take the view that the defendant bad brought himself within that sphere of the authorities, it might well be that I would have been able to help him by saying that his repentance had come before the illegal purpose had been substantially performed, but I do not take that view. I think, however, that this case falls within the category of cases which I call the frustration cases, and that it is proper to regard it as in the same category as Alexander v. Rayson, (1936) 1 KB 169 and Berg v. Sadler and Moore, (1937) 1 All ER 637 rather than as in the category of cases such as (1876) 11 QBD 291 and Kearler v. Thomson, (1890) 24 QBD 742 and to some extent, Hermann v. Charlesworth, (1905) 2 KB 123.”

20. One of the authorities discussed by Pritchard, J. was a decision of the court of appeal in (1905) 2 KB 123 in connection with an illegal marriage brokerage contract. In that case, the plaintiff had promised to pay a certain sum of money to the defendant if and when he introduced her to a gentleman who should marry her. She also paid to the defendant a certain sum which was called a client's fee. The defendant, thereupon, introduced her to several men, but no marriage took place and eventually the plaintiff brought an action to recover back the sum paid as client's fee. The contract was illegal and the parties were not in pari delicto as the defendant, who was out for money, was more blameworthy than the plaintiff, who was out for a husband. The court of appeal allowed the plaintiff's claim; and the reason for the decision was that, the object of the contract being to bring about a marriage, it could not be performed in part and, therefore, as nothing has been done in the performance of the contract, the plaintiff was entitled to recover back the money, although she had paid it Under an illegal contract. Pritchard, J., observed that the facts in that case were peculiar, but he thought that the reason for the decision seemed to support (1876) 1 QBD 291.

21. On the observation of Mellish, L.J, quoted in Dharnidhar's case, AIR 1949 Pat 250 by Ramaswami, J. the following comments were made by Fry, L.J, in (1890) 24 QBD 742:

“It is remarkable that this proposition is, as I believe, to be found in no earlier case than (1876) 1 QBD 291 and……I cannot help saying for myself that I think the extent of the application of that principle and even the principle itself, may, at some time thereafter, require consideration…….”

22. Pritchard, J., quoted Lord Wright, M.R, who said in (1937) 1 All ER 637:

“Fry, L.J, (in (1890) 24 QBD 742) goes on… to distinguish……(1876) 1 QBD 291 where recovery was allowed, as I understand the decision, on the ground that illegal purpose had been abandoned, and that the plaintiff had so repented that he was not debarred from recovering what he had paid…… but I should like to add to the observation of Fry, L.J, the observations which are contained in a judgment of this Court in (1936) 1 KB 169.”

23. Lord Wright, M.R, then cited the following passage from (1936) I KB 169:

“Plaintiff's counsel further contended that Inasmuch as the plaintiff had failed in his attempted fraud, and could therefore no longer use the documents for an illegal purpose, he was now entitled to sue Upon them. The law, it was said, would allow to the plaintiff a locus; paeniteritiae. So, perhaps, it would have done, had the plaintiff repented before attempting to carry his fraud into (effect, see (1876) 1 QBD 291. But, as it is, the plaintiff's repentance qame too late, namely after he had been found out. Where the illegal purpose had been wholly or partially effected the law allows no locus paenitentiae; see Salmond and Winfield's Law of Contract, p. 152. It will not be any the readier to do so when the repentance, as in the present case, is merely due to the frustration by others of the plaintiff's fraudulent purpose.” In the case of (1937) 2 KB 158 Scott, L.J, quoted the following passage from the judgment of Macnaghten, J.,:

“If dishonest people pay money for a dishonest purpose and then by good fortune the offence which they designed to commit is not committed, are they entitled in this court to come and ask for recovery of the money? In my opinion, they are not it would be a bad example if this court were to entertain an action by a man for money dishonestly paid for the purpose of committing an offence against the criminal law, and he were allowed to claim from the court an order that the money should be repaid.”

24. After quoting this passage, Scott, L.J, continued:

“I entirely agree with that judgment, which I have adopted as my own. At the same time, I agree with what Lord Wright, M.R, has said that the facts of this case involved a slightly new application of the rule, but ubi eadem ratio ibi idemjus. The principle which, forbids the assistance of the court to a plaintiff who asks it in order to effect a dishonest purpose extends, in my opinion, to the case of a request for the courts assistance in order to extricate himself from a pecuniary difficulty in which he has placed himself by all incomplete performance of a dishonest course of action.”

25. From the foregoing observations, it will appear that the cases of (1876) 1 QBD 291 and (1936) 1 KB 169 were cases in which the plaintiff had repented.

26. In Dharnidhar's case AIR 1949 Pat 250, Ramaswami, J. (as he then was) also referred to certain Indian decisions. In Ram Chand Sen v. Andaito Sen, ILR 10 Cal 1054, a suit was brought to recover Rs. 100 which was alleged to have been paid by the plaintiff to defendant in consideration of the promise by the defendant to give his daughter in marriage to the plaintiff. Defendant had refused to give the daughter in marriage. The defendant resisted the claim on the plea that the agreement was illegal. But the plaintiff was granted a decree.

27. In Srinivasa v. Sesha, ILR 41 Mad 197 : (AIR 1918 Mad 444) the plaintiff had paid to the defendant Rs. 400 under an agreement for the marriage of his (defendant's) son with the plaintiff's sister. The marriage did not take place whence the plaintiff sued for recovery of the money. The defendant contended that the plaintiff had broken the agreement and the High Court held that the plaintiff was entitled to recover the amount.

28. In Gulabchand v. Fulbai, ILR 33 Bom 411, there was an agreement by which the plaintiff promised to pay Rs. 1800 to the defendant as consideration for the latter's promise to marry his niece to the plaintiff's son. But before the marriage could take place the plaintiff's son died of plague. Under the agreement the plaintiff had before her son's death paid to the defendant a sum of Rs. 750.

29. Subsequently, the plaintiff having Brought a suit to recover the sum from the defendant contended that the agreement was illegal and no sum paid under it could be recovered. It was held that the plaintiff was entitled to recover the sum from the defendant having regard to the character of the agreement. But in the Calcutta case, Beverley J., said that, inasmuch as payment of money for marriage was the recognised custom of the country and was not prohibited by law as in England, the marriage contract was not illegal. Garth, C.J said that

“because it is manifest justice that the defendants should not be allowed to retain the money, I agree with my learned brother that; the claim should be decreed.”

30. In the Madras case it was held that principles of English law were applicable in such cases and refund of the money was allowed on the authority of (1876) 1 QBD 291 which was unimpaired by the decision in (1890) 24 QBD 742. But at the fame time it was observed that different considerations might arise in the case of an agreement to commit an offence against the Crown.”

31. In, the Bombay case also reliance was placed on these English decisions. But as pointed out earlier, these cases were treated by Pritchard, J. as “repentance cases” in (1951) 1 All ER 92 Which has also been referred to by the Supreme Court in AIR 1960 SC 213.

32. From the foregoing discussions, it follows that none of these decisions would apply to the present case; firstly, because the English decisions on which they are based were explained in subsequent English decisions as cases of repentance; and, secondly, because there was no law, similar to the provisions of the Bihar Dowry Restraint Act, prohibiting acceptance or payment of dowry or tilak for marriage and making such acceptance or payment a criminal offence.

33. From a review of the authorities, the following legal position emerges:

(1) A person, who has entered into a contract forbidden by law and paid some money or delivered some goods to the other party in pursuance of the contract, cannot sue on the basis of the contract, to recover the money or the goods; and

(2) a person, who has entered into an executory contract and has paid some money or delivered some goods to the other party in pursuance of the contract, may recover the same by a suit before the performance of the contract, provided that he has repented for having entered into the contract by withdrawing from the same before its performance. But he is not entitled to recover the Same when the performance of the contract is frustrated by some unexpected event or by any act on the part of the other party or a third party.

34. Applying this principle to the present case, it is manifest that the plaintiffs-respondents are not entitled to recover any sum out of the tilak money from the appellants-defendants, because the contract for payment of any sum as tilak was void under the provisions of the Bihar Dowry Restraint Act. Such a contract is distinct from an executory contract for marriage or a marriage brokerage contract in which case a party to the contract may express his repentance by withdrawing from the same before performance of the marriage. The contention of the appellants must, therefore, succeed in the present case. In the result, the appeal is allowed and the suit is dismissed with costs of all the courts.

Kanhaiya Singh, J.:— I agree.

DF/R.G.D

35. Appeal allowed.