Aikman, J.:— This appeal arises out of a suit brought by the appellant, Alice Mary Hill, a married woman living separate from her husband, to recover from the defendant-respondent, William Clarke, a married man separated from his wife, the sum of Rs. 550, arrears of a monthly allowance of Rs. 50, alleged to be due to the plaintiff under an agreement purporting to have been executed by the defendant on the 20th November, 1899. The material part of the agreement is as follows:—
“Whereas the latter (i.e, the plaintiff) has devoted the best “part of her youth (for over the last fifteen years) in my service in “looking after my house at Agra, and in always keeping it clean, “neat and tidy, and my servants in order, and always giving me “my meals in time to my satisfaction, so that I have never missed “my train (the defendant was an engine driver) and has always “attended to me in sickness, out of gratitude to her, and with the “view that she may continue in my service, I bind myself, in case “I may dispense with her services……to pay to her so long as I “may be alive, Rs. 50 per mensem.”
2. In addition to this monthly allowance, there was a further provision for a payment to the plaintiff of Rs. 5,000 in case of defendant's death. The defence raised various pleas. Amongst them there was a plea that the document sued on had never been executed by the defendant. The defendant stated on oath that the signature on the agreement was not his. The learned Munsif found that the signature on the agreement was Clarke's. When the case was taken in appeal by the defendant to the learned District Judge, no attempt was made in the argument to impugn the Munsif's finding as to execution.
3. The agreement on the face of it is a perfectly good agreement. Notwithstanding this, it would have been open to the defendant to seek to invalidate it by showing that the consideration or part of the consideration was in reality an illegal consideration, vide proviso (1), section 92, of Evidence Act. No such plea was taken in the written statement, and in the issues as framed at first upon the pleadings no such question was raised.
4. It was left to the plaintiffs pleader to spoil his client's case by putting to the defendant, when examined as a witness for the plaintiff, the following question, which having regard to the pleadings and the issues which had been framed, were absolutely irrelevant:—
“How have you been addressing the plaintiff?”
“Were you not living with Mrs. Hill as husband and wife?”
5. Objection was taken to these questions on the part of the defendant, who further claimed privilege on the ground that answers would incriminate him. But being compelled by the Court to reply, he said he had always been addressing the plaintiff as “Mrs. Clarke,” and that they had been living as husband and wife from about 1891 to 1901.
6. Thereupon the following issues were added to those already framed:—
“Can the plaintiff, being a married woman, sue for maintenance based on past co-habitation?
“Can the plaintiff change her case as disclosed in the plaint?
“Has she really done so?”
7. The learned Munsif found that past co-habitation was part of the consideration, and relying on the decision in Man Kuar v. Jasodha Kuar(1) and Dhiraj Kuar v. Bikramjit Singh(2), he held that the agreement was not thereby invalidated, even though future co-habitation was in the contemplation of the parties. Here I think the learned Munsif was in error. The co-habitation in the cases relied on by him is not shown to have been adulterous. In England a covenant founded on past co-habitation, even though adulterous, is valid in law. But in England, adultery is not an offence under the criminal law, whereas in India it is. If then adultery, past or future, is the consideration or an indivisible part of the consideration for an agreement entered into in India, this would, I hold, make it not merely an immoral but an illegal agreement and the contract would be void.
8. In the result, the Munsif gave the plaintiff a decree for Rs. 150.
9. The defendant took the case in appeal to the learned District Judge who allowed the appeal, and dismissed the plaintiff's suit. The learned Judge held that co-habitation was at least part of the consideration for the agreement, that the words in the agreement “with a view that she may continue in my service” show that future co-habitation was a part of the consideration and that as this involved the commission of an offence, to wit adultery, this part of the consideration was not merely immoral but unlawful and that under section 24 of the Contract Act this, rendered the agreement void.
10. The plaintiff comes here in second appeal.
11. I have taken time to consider my judgment as it appeared to me doubtful whether, having regard to the pleadings, which raise no question of immoral or illegal consideration, and to the fact that on the face of it the agreement is a good one it was open to the Court below to hold that the agreement was void as having been made for a consideration which was in part unlawful.
12. That the relations between the defendant and the plaintiff were not merely those of a master and his house-keeper, is proved by the evidence of the defendant, and by the language of the letters from the defendant to the plaintiff which have been put in by her. There can, I think, be no doubt that the defendant and plaintiff co-habited as husband and wife.
13. The Court below have found that this co-habitation was in the minds of the parties as forming part of the consideration for the agreement, and sitting as a Court of second appeal, I cannot say that it was not open to the Courts to come to this conclusion on the materials before them.
14. As to the question whether the Courts could come to such a finding although the agreement was on the face of it a perfectly legal agreement, and notwithstanding the fact that no plea was raised by the defendant as to the illegality of the consideration, the authority of English cases is clearly against the pleas urged on behalf of the appellant.
15. Leake in his well-known work on Contracts, 4th Edn., p. 551, says, “Though the contract is apparently valid in form or matter, extrinsic evidence is always admissible in variance of or in addition to the contract to show that the transaction is illegal and therefore void even in the case of a covenant or contract under seal.” (This is also the law in India; section 92, prov., I Evidence Act), He goes on to say, “The facts showing illegality either by statute or common law must be pleaded, but when the illegality appears from the plaintiffs own evidence, it is the duty of the Court to take judicial notice of the fact and to give judgment for the defendant, although the illegality is not raised by the pleadings.”
16. In support of the last proposition the following authorities may be cited:—
In Holm v. Johnson, MANSFIELD, L.J, said, “If from the, plaintiff's own statement or otherwise the cause of action appears to arise exturpi causa or the transgression of a positive law, then the Court says, ‘he has no right to be assisted’.”
17. In the case, Scott v. Brown, Lindley, L.J, says, “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.”
18. Again in the case Gedde v. Royal Exchange Assurance Corporation(3) it was held that when on the trial of an action, the plaintiffs case discloses that the action which is the basis of his claim is illegal, he Court cannot properly ignore the illegality or give effect to the claim even if the illegality be not pleaded or relied on by the defendant. It is not, as was observed by Lord MANSFIELD in the Case of Holman v. Johnson, “for the sake of the defendant” that in such cases the Court declines to enforce the contract. “It is on the ground of public policy, namely, that those who violate the law must not look to the law for protection.” Truro, L.C in Benyon v. Nettefold(4).
19. The Court below having found that part of the consideration for the agreement, the basis of the plaintiff's suit, is unlawful, I am constrained although I have no sympathy with the defendant to hold for the reasons and on the authorities set forth above that the appeal fails, and I dismiss it. I make no order as to costs.
Appeal dismissed.