1958 Supreme(Cal) 140

HIGH COURT OF CALCUTTA
P. B. Mukharji, R. S. Bachawat
PRANBALLAV SAHA - Appellant
Versus
TULSIBALA DASSI - Respondent
A. F. O. D.  96  Of  1955
Decided On : MAY 16, 1958

Headnote:

The Court held that the lease was void and not voidable, the plaintiffs may ignore the lease and sue for possession and are entitled to relief as a matter of right. The case of (1874) 16 Eq 275 (A) has no application to a case where the transfer for illegal purposes is void. In any event the plea of particeps criminis is not material because public interest requires that relief should be given to the plaintiff. The plaintiffs are not particeps criminis though they claim title through Ranubala.

Fact of the Case:

The plaintiffs are the executors and trustees of the Will dated 22-6-1946 of one Ranu Bala 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 Ranu Bala 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 plaintiffs 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.

Finding of the Court:

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, 40 Cal WN 402: (AIR 1935 Cal 748) (C) and Scott v. Brown, (1892) 2 QB 724 (D ).

Issues: Whether the plaintiffs are entitled to recover possession of the suit premises from the defendant?

Ratio Decidendi: 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." 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 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. " 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.

Final Decision: The appeal is allowed and the plaintiffs' suit for possession is decreed.