Atkinson, J.:— This case has been very ably argued on both sides and we have made up our minds and arrived at a very clear conclusion on the facts and the law.

The Plaintiff in this suit is Lekhraj, and he and his two sons are joint Plaintiffs with him, and Bindeshari Prasad is the Defendant in the action No. 547 of 1913, and this action is brought claiming the specific relief that the deed of the 7th January 1912 may be cancelled and declaimed null and void. The date of the institution of this suit is the 9th March 1912. I may here incidentally mention that after this suit was instituted, Bindeshaii Prasad instituted an action against Lekhraj entitled No. 438 of 1913 to have the award of the 29th December 1911 filed and judgment passed thereon. I do not think it is necessary to go into the details of the history of the family more than to say that Bindeshari Prasad and his family had a partition of their joint property; and their joint interests in the firms in which they carried on business at Calcutta and Ranigunj became severed. From the year 1901 up to 1906 when the partition took place, he and his father, his uncle and his two cousins owned and carried on a joint business at Ranigunj and Calcutta. Apart from the joint property Bindeshari Prasad also had an independent business of his own and the way in which he came in contact with the Plaintiff Lekhraj and his son Mahabir was that they both entered into the employment of the joint firms, in or about the year 1901 so far as Lekhraj was concerned, and in 1903 so far as Mahabir was concerned. Lekhraj was the agent and manager of the firm in Calcutta; and Mahabir was the agent and manager at Ranigunj. Things went on quietly until after the partition. After the partition in 1906 or January 1907, Lekhraj and his son remained in the employment of Bindeshari Prasad, one acting as foreman or manager at Calcutta and the other at Ranigunj. For a few years after 1906 the Plaintiff and his son seem to have got on amicably with their employer Bindeshari Prasad, and it was not until the year 1911 that any form of dispute, so far as we know, arose between them. The cause and origin of the dispute that did arise and develop in June 1911 appears to have arisen out of the acquisition of 6½ annas share in the village Tandwa. In or about November 1909 Bindeshari Prasad purchased a two annas interest in that village and on the same day Lekhraj purchased a three annas share; and subsequently in February 1910 Lekhraj purchased a further share of 1½ annas share or interest and in Deeember 1910 another two annas, making an entire acquisition of interest by Lekhraj in that village of 6½ annas which represented in capital money Rs. 12,000 in value. It is said, and great emphasis is laid upon this fact, that this property purchased by Lekhraj was for himself as the true and lawful owner thereof; but if he was merely a trustee for Bindeshari Prasad why should Bindeshari Prasad on the same day have purchased a two annas share and Lekhraj a three annas share. However, after the completion of this purchase, culminating in December 1910, friction arose, and undoubtedly the friction which arose is manifest from the Plaintiff's own plaint by reason of the claim which Bideshari Prasad was making to the 6½ annas interest in this village; and from that dispute has followed this subsequent litigation. Lekhraj contended that this 6½ annas share was his and formed part of his joint family property. Bindeshari was equally strenuous in contending that Lekhraj was but his agent or trustee. In June 1911 we have Lekhraj joining issue as to this dispute by serving notice on Bindeshari Prasad that he required a partition of this village. But whether immediately before or immediately after the service of that notice the relationship of master and servant, existing between Bindeshari and Lekhraj and Mahabir, was terminated, whether by dismissal or by escape, does not appear clear. Immediately following this rupture between the Plaintiff and the Defendant, Lekhraj instituted a suit for the partition of this village. I may mention that the son Mahabir acquired in the village an interest under a lease or ticca some three annas share, but this share is in no way concerned in the dispute in this case. Not content with the partition suit, Lekhraj then files or institutes two other actions against Bindeshari Prasad in July 1911, one for arrears of salary alleged to be due by Bindeshari Prasad to him; and another action by his son, claiming the same relief. Lekhraj's action came on for hearing and was dismissed on the 12th September 1911. The fate of Mahabir's action for wages due seems never to have been finally determined, and, in the same month, July 1911, Lekhraj institutes an action jointly with Mahabir and his other son (a blind boy who does not appear in this case otherwise than as a joint proprietor) against Bindeshari Prasad to recover money alleged to have been deposited with him. Bindeshari institutes by way of reply to these acts of hostility, and I suppose malice, proceedings against Lekhraj under secs. 408 and 477, Indian Penal Code in the month of September 1911; and about a couple of days later he institutes a further suit in the High Court of Calcutta claiming an account on the ground that Lekhraj and his son were defaulting agents and liable to account.

This was the condition of things in the month of October 1911 and it was quite certain then that there was a vista of litigation opening up between these persons, Lekhraj and his sons on the one hand, and Bindeshari Prasad on the other. The friends of both jointly met and endeavoured to induce the parties amicably to come to terms and settle their differences. This the Plaintiffs and Defendant agreed to do; and as a result of their agreement, a document, agreement or chitti as it is generally called, was drawn up bearing the date 18th October 1911. That document summarised shortly, is to this effect. In consideration of Bindeshari Prasad withdrawing the civil action for account in the High Court and the two criminal charges against Lekhraj, that he, Lekhraj, in return, would give up his 6½ annas interest in the village of Tandwa; he would also transfer to Bindeshari an orchard of some small extent, and a house which he owned in Calcutta, and that he would pay in money, the sum of Rs. 5,200 and would discontinue all actions and proceedings which he had instituted against Bindeshari. The consideration for this agreement is shown clearly, and the main consideration, as it appears from the document, was the abandonment of the proceedings under secs. 408 and 477, Indian Penal Code. The offences charged under these sections were the falsification of accounts and criminal breach of trust, neither of these offences being of a compoundable character as defined in the Indian Penal Code itself. Lekhraj, so far as I can trace from the document, never objected to any of the provisions contained in the agreement of the 18th October 1911. It does appear that in one action which he brought against Bindeshari, Bindeshari on the. 26th October 1911, relying upon this agreement or contract, applied to have the proceedings against him at the suit of Lekhraj stayed on the ground that the matter of the dispute between them was at an end, and that Lekhraj appeared and applied under r. 3, Or. XXIII to resist this application for the determination of that suit. This is the only act that has been suggested as a repudiation of the terms of the agreement of the 18th October 1911, by Lekhraj, and in my opinion no such act in itself involved any repudiation of that agreement. Matters remained at rest, the parties were at peace, practically no step was taken, nothing actively was done between the 18th October 1911 and December 1911, but undoubtedly during that period of time there was a discussion going on as to whether, if Lekhraj paid the money which he had agreed to pay to Bindeshari Prasad, that would exonerate him and his sons from all liability to the cousins of Bindeshari who Had an interest in being reimbursed in respect of their share of any money that had been taken during the joint ownership of the two businesses prior to the partition which would cover the period between 1901 and 1906. That claim had been recognised and it was in order to provide a remedy for Lekhraj that the matter was referred to arbitration. Each party selected his arbitrators, it was clear as to what they were to do and the award was clear as to what they did. They were asked to do no more than to ascertain what would be a fair share or proportion of the money paid to Bindeshari by Lekhraj under the agreement of the 18th October 1911, that he should pay to his cousins as representing the loss which he had sustained, while the joint business was being carried on. The arbitrators found that sum ought to be measured at Rs. 2,000, and they accordingly so awarded; and in the award of the 29th December 1911 they incorporated the antecedent agreement of the 18th October 1911 and they varied none of its terms otherwise than I have stated. Then in considering the award which was made between the parties one has to read the three documents together, viz., the document dated the 18th October 1911, the reference dated the 28th December 1911, and the final award of the 29th December 1911. Lekhraj acquiesced in that submission and award, he apparently having been advised throughout the negotiations leading thereto by his solicitors and by a pleader. Lekhraj took every benefit that was conferred upon him by the award. I can find no document throughout the case which would directly or indirectly suggest that he was induced to enter into that compromise by duress, undue influence or by fear. Finally on the 7th January 1912, in part performance of the compromise, he executes a conveyance to Bindeshari Prasad assigning to him eo-nominee three denominations of land which I have already mentioned, but the important one being the 6½ annas interest in the village of Tandwa. That document is a very full and elaborate one. It was drawn up by a pleader at the express invitation, as I gather, of Lekhraj himself, and it contains step by step each incident of the litigation culminating in the arbitration and the award of the 29th December 1911 and negatives by its terms the suggestion of undue influence or duress. By this conveyance of the 7th January 1912 Lekhraj fully and freely assigns possession of this property to Bindeshari and towards the end of the document a condition is inserted in the deed that the deed is not to come into force until all the proceedings have been withdrawn and that if the proceedings were not withdrawn the property was then to revert to him, Lekhraj, in as full a manner as he had prior enjoyment thereof; and that pending the withdrawal of all proceedings, civil and criminal, he was to retain possession of the title deeds, and he deposits the receipt of this indenture which was duly registered with his arbitrator Kokil and requests him not to deliver it to Bindeshari until all the conditions provided by the agreement had been satisfied. Kokil, to whom the deed of conveyance was given to be handed over to Bindeshari Prasad on the fulfilment of the two conditions necessary to be performed by him, is since dead, but he told the witness Lalji Earn that he had heard from Lekhraj that the High Court suit had been withdrawn and that the deed might therefore be handed over to Bindeshari Prasad. This was probably early in February. This evidence is not contradicted and thus it appears that Kokil, Lekhraj's arbitrator, handed over the deed of conveyance of the 7th January 1912 to Bindeshari Prasad at the request of Lekhraj and this is how the deed comes now to be in the possession of the. Defendant.

Now this action seeks to have that deed set aside and asks us, in the exercise of our equitable jurisdiction, to cancel it. The grounds put forward for asking us to exercise our jurisdiction are—

(1) that Lekhraj was induced by facts amounting to fraud, undue influence and duress, practised and exercised upon him by Bindeshari, to execute that conveyance;

(2) further inasmuch as the contract between the parties was for an illegal consideration it was not binding on him and that therefore to avoid any doubt being cast upon his title the deed of the 7th January 1912 should be cancelled and declared a nullity.

On the 30th January 1912, criminal proceedings were entirely discontinued (the record speaks for itself) and shows that the cases against Lekhraj were withdrawn and he was acquitted of the charge, and the order made by the Magistrate was made with the consent of the parties themselves who apparently were present. Steps were also taken to withdraw the High Court action for an account, the only remaining thing which Bindeshari had to do. Correspondence was entered into between the solicitors of both parties, four or five letters were written. On the 30th January 1912 and 2nd February 1912 the draft form of petition for withdrawal of the High Court proceedings were approved of by the solicitors on behalf of Lekhraj and Bindeshari and there was no earthly reason why that petition should not have been filed and the proceedings dismissed and that litigation terminated. But apparently nothing was done and suddenly the parties take into their head in the month of May to revive the question of this petition and then Lekhraj acting through his solicitors, writes on the 20th June 1912 that, having regard to the events that happened, he declined to give his consent to the withdrawal of the High Court action, the withdrawal of that action having been a condition named by him for the delivery of the deed and it being an essential term of the compromise arrived at between the parties. What happened in the meantime: On the 9th March 1912, Lekhraj embarks upon this action with his sons and I have indicated the relief he seeks. Bindeshari starts the alternative action for the enforcement of the award; but as Mr. Hassan Imam fairly admitted there was very little substance in that claim. The main issue in this case lies in the action instituted by Lekhraj against Bindeshari in Appeal No. 547 of 1913. Three issues appear to us to arise for determination.

(1) Was the purchase of this 6½ annas interest in this village by Lekhraj made by him as a benamidar of Bindeshari?

(2) Who provided the purchase money for the payment of Rs. 12000 as the purchase price of this interest, and

(3) The most important of all, are Lekhraj and his co-Plaintiffs now entitled to have this deed delivered up and under our order cancelled. In other words has he come into Court and shown us clearly that having secured the benefit provided for him under the illegal contract we ought to cancel this deed in his favour. We have considered very carefully the first two issues which arise for consideration, namely, as to who is the owner and purchaser of the 6½ annas interest and whose money paid for it? The facts as regards both these issues are very conflicting and give us;much cause for hesitation and doubt; but acting on the well-recognised principle that Judges on appeal, even though they may have control on questions of fact, should be slow to reverse the finding of a Judge of first instance who has seen and heard the witnesses examined before him and who, by reason of this fact, is probably better able to come to a right conclusion, therefore though we ourselves, had we been judges in the first instance as to the facts, might have come to a different conclusion, we do not feel justified in disturbing the finding of the learned Subordinate Judge on the first two issues I have mentioned.

Now as to the third issue in this case, we have no doubt what our decision should be. The three documents comprising the award in this case clearly show that the consideration on which the agreement was based was illegal, inasmuch as the consideration was that criminal offences, being of a non-compoundable character, should be compounded. The case of Mojibar Rahaman v. Muktashad Hussein, with which we entirely concur, establishes that any contract founded on such illegal consideration is wholly void. If any part of the consideration supporting a contract is void, it taints the whole contract with illegality; and even though a part of the consideration may be legal yet you cannot sever the legal from the illegal; the taint of illegality vitiates the entire contract. In our opinion the contract in this case was founded upon an illegal consideration being the withdrawal of criminal charges which could not be compounded; and we reject as untenable the argument of Mr. Hassan Imam founded on sec. 70 of the Code of Criminal Procedure for the purpose of showing that the consideration supporting this contract was legal and not illegal. We have been referred by Mr. Sahai to Shrirgachariar v. Ramasamiayyangar, resembling in many respects the facts of this case, but we do not think the principle, enunciated in that case, is sound, or that it should be followed. The rule of law with regard to illegal contracts is that a Court of law will not aid persons in enforcing the performance of an illegal contract or assist them to recover back property which they have given away under such an illegal contract, when the persons and parties to the contract are themselves pari delicto in procuring this illegality. The Courts of Equity in England have always refused to afford equitable relief in enforcing a contract void in law or restoring property which is based on an illegal contract where the illegality is apparent on the face of the document itself. Simpson v. Lord Howden(3), illustrates this principle. Mr. Sahai contends, however, that Lekhraj is really not in pari delicto with Bindeshari Prasad in procuring the contract in this case, because he says that Lekhraj was induced to enter into the contract with Bindeshari Prasad through duress and undue influence and fear. In answer to that argument we can only say that we cannot find a trace nor a scintilla of evidence to justify the assertion that, in doing what Lekhraj did, he acted under any undue influence, compulsion, duress or fear alleged to have been practised upon him by Bindeshari Prasad. To our mind undue influence is conspicuous by its absence. The onus is upon Lekhraj to establish undue influence as a fact and this he has not done. Therefore Lekhraj in our opinion was in pari delicto, with Bindeshari Prasad in procuring the illegal contract in this case. Mr. Sahai's second argument is, that if the contract out of which this deed springs be void, the deed itself is void, and therefore he invokes our aid to have it cancelled. We think that there can be no distinction in principle between granting relief by way of a declaration and that by which Courts of law and equity have refused to restore property given away under an illegal contract or to enforce the obligations created under an illegal agreement. Therefore if there were nothing further in the case we think that according to the principles of English equity the Court should refuse to grant the relief by way of declaration sought in this case; leaving it to both parties to suffer the outcome of their joint wrong, and that neither ought to be assisted against the other under the equitable jurisdiction of this Court. However it has been pointed out to us that under sec. 39 of the Specific Relief Act, according to Indian Law, relief can in a proper and fit case, be given effect to, even when a contract out of which the right springs is void. But that section leaves it entirely to the discretion of the Court to exercise the jurisdiction so conferred upon it. We see nothing in this case which should or ought to induce us to grant the relief claimed in this action under sec. 39. The case of Thasi Muthu Kannu v. Shummugavalu, has no application to the present case before us inasmuch as the basis of the decision in that case was the fact that undue influence had been practised upon the donor of the gift in that case, and that consequently he was not a free agent or in pari delicto with the other party to the gift. For these reasons we think that the judgment of the learned Subordinate Judge in this case must be reversed and that the decree in the action No. 437 of 1913 should be dismissed with costs in all Courts. And for like reasons we think that the claim made in the suit No. 438 of 1913 should likewise be dismissed with costs.

Chapman, J.—I agree that the suits should both be dismissed with costs. Where the illegal portion of an agreement has been carried into effect, the whole matter is outlawed and the Court will not aid either party to retrieve his position if he is not able to show that he has been less to blame than the other. “The Courts will not assist an illegal transaction” [Taylor v. Chester]. It is a scandal to assist a Plaintiff to recover upon the ground that he has joined in breaking the law, but this will not prevent the Court from intervening to frustrate the illegal purpose before it has been effected, or, in any event, from giving relief to the innocent. In particular, the Court will not in any case allow a Defendant to retain the proceeds of fraud or oppression: and the Court will not refuse protection to those classes of persons whom the law seeks to protect. But in a case in which no such considerations arise, if the illegal purpose has already been executed in whole or in material part, the law leaves both parties to their fate [Kearley v. Thomson].

In the present case the illegal portion of the agreement was the undertaking to withdraw from the prosecution of certain charges which the law says “shall not be compounded.” This illegal promise had been carried into effect beyond possibility of recall. One side now seeks relief from the act done in consideration for the illegal promise. All that they can say in excuse of their breach of the law is that they were persons accused in those criminal cases. But executio juris non hobet injuriam and in the absence of any evidence to suggest that the criminal proceedings were improper it cannot be held that there was any fraud or oppression or that the accused took a more innocent part in the illegal compromise than the complainant. The authorities make it clear, that a suit for the recovery of property transferred in consideration for such an illegal promise would not have lain. There is no direct authority that the principle would also defeat a suit which is not for the recovery of property, but merely for a declaration that a sale deed executed in consideration for the illegal promise is void, and in America it has apparently been held that a declaratory suit would not be defeated (Keener on Quasi Contracts p. 441). But if it is the scandal involved that defeats suits of this class, then the principle is clearly applicable to a suit for a declaratory decree. For so far as the scandal is concerned there is no difference between a suit for the recovery of property and a suit for a declaration.

It is contended that the refusal of a declaration that the deed was void will operate as a direct encouragement to the improper compounding of offence inasmuch as the complainant Defendant will be permitted to retain the proceeds of the illegal compromise. Some authority for the general application of this consideration can be found in the judgment of DeGrey, C.J in Jaques v. Golightly(7), a case of the 18th Century. But ever since then the counter consideration has prevailed except in certain classes of cases which I have endeavoured above to define.

A.K.R

Suits dismissed.