VAIDYA J·-[His Lordship, after stating the facts of the case proceeded.] The important question to be decided in this appeal is whether the plaintiff could take an advantage of the immoral relations which he claimed to have established between himself and defendant No. 1, even according to his own story. Mr. Karmali, the learned counsel for the appellants, submitted that the learned Civil Judge has not applied his mind to the three decisions which are referred to by him or to the law regarding the effect of immorality vitiating the agreements and transactions under section 23 of the Indian Contract Act, read with section 6, clause (h) of the Transfer of Property Act.

2. He argued that, instead of supporting the conclusions of the learned Judge, the decision of the Division Bench of this Court in Sabava v. Yomanappa1, lays down that a suit for the recovery of possession of property transferred under a safe-deed, the consideration or object of which was immoral, i. e. past or future cohabitation, though void under section 23 of the Indian Contract Act, and section 6 (h) of the Transfer of Property Act, the principle of equity \Contained in the maxium ‘in pari delicto potior est conditio possidentis’ i. e. where each party is in fault law favours him who is actually in possession must apply.

3. Mr. Karmali submitted that in that case it was laid down categorically relying on the decision in Ayerst v. Jenkins2 that the Court in a such a case was prevented from aiding a person who was guilty of immoral conduct, to recover property on the ground of public policy. In other words, Mr. Karmali submitted that as the plaintiff in this case sought to Succeed only on the basis of the proof of the immoral relations between the plaintiff and defendant No.1 prior to and subsequent to the sale-deed, his suit should be dismissed applying the said maxium of 'in pari delicto potior est conditio possidentis.’

4. Mr. Kanade, the learned counsel appearing for the plaintiff, tried to repel these arguments relying on the decision of another Division Bench of this Court in : Istak Kamu v. Ranchhod Zipru3 where it was laid down that where, a transaction though completed is intended to be for consideration, it can be impeached if the consideration is immoral; and it makes no difference whether the transaction is executory or executed.

5. He relied upon the decision of the Calcutta High Court in: Pranballav v. Tulsibala Dassi4, where a distinction was made between the English and the Indian taw which made an agreement or transfer whose consideration or object was unlawful, void; and it was held that in a suit where the owner or a house lets out the property to the defendant for the immoral purpose of running a brothel the executors and trustees of the will of the owner, who were not in pari delicto or in particeps criminis can sue to eject the defendant on the basis that the transfer is void and the Court will accord relief to the Claimants .

6. Mr. Kanade also referred to the decision of the Supreme Court in: Firm Sriniwas Ram v. MahabirPrasad5 and submitted that although the plaintiff had originally pleaded that the sale-deed was liable to be set aside on account of undue influence practised by the defendant No. 1, it was open to the plaintiff to rely upon the finding of the lower Court that the object of the agreement of sale or of the sale-deed was future immoral cohabitation between the plaintiff and defendant No.1.

7. He also relied on the decision in D. Nagaratnamba v. Kunuku Ramayya6 and contended that only in certain cases where past consideration was the motive and not the consideration for the transfer, transfers were held to be by way of gift which were valid, and where, as in the present case, the object or consideration was for future cohabitation, original title of transferor remained unaffected by a sale deed tainted with such immorality.

8. A discussion of these rival contentions must begin with the leading English case on the po