Past cohabitation as consideration for a promissory note is immoral and unenforceable under Section 23 of the Contract Act.

Sundaram Chetty, J.

1. This second appeal arises out of a suit, brought by the plaintiff (respondent) for the recovery of a sum of money alleged to be due to him from the defendant under the pro-note Ex. A. The case set up in the plaint was, that this pro-note was executed in consideration of a sum of Rs. 400 paid to the defendant in cash. That case he failed to make out, and it is clear from the judgment of both the lower Courts that they disbelieved the plaint version as to the form of the consideration, and they have held that the suit pro-note was given in consideration of past cohabitation which the defendant had with a dancing girl named Chinnathayi. In the view that such a consideration for the pro-note is not illegal, a decree has been given in favour of the plaintiff.

2. It is now argued for the appellant, that once the Court below found that the plaintiff failed to prove that the pro-note was supported by consideration as alleged in the plaint, the suit should have been dismissed, without going into the question whether the consideration alleged by the defendant for the execution of the suit pro-note is true and valid. If a strict view of the pleadings is taken, any variance between the pleading and the proof would be a good ground for rejecting the case. However, this case may be decided even upon the finding of the Courts below that the real consideration for the suit pro-note was not a cash loan, but, on the other hand, it was executed in consideration of the defendants past cohabitation with a dancing girl. The question now to be decided in view of this finding, is, whether the consideration for the suit pronote is immoral within the meaning of Section 23, Contract Act, and if so, whether it is enforceable against the defendant.

3. Section 23 declares that the consideration or object of an agreement is lawful unless the Court regards it as immoral or opposed to public policy. Section 2, Clause (d) of the Act states that if at the desire of the promisor, a promisee has done or promised to do something, such act or promise is consideration for the agreement. According to this definition, the services rendered by the dancing girl to the defendant which would come under past cohabitation would be as much a consideration for the pro-note as a promise on her part to have future cohabitation with him. There is no doubt that, where the object of an agreement is future cohabitation, it is tainted with immorality. The question is, whether the consideration would not also be immoral within the meaning of the section, if it should be past cohabitation. In the treatise on the Indian Contract Act by Pollock and Mulla, 5th Edn., the learned authors observe in connexion with Section 23 at p. 162, that a consideration which is immoral at the time, and therefore, would not support an immediate promise to pay for it, does not become innocent by being past. It seems to me that the test to be applied for deciding, whether a particular thing is immoral or not, is not whether it is a past action or one in future contemplation. It would not be quite logical to draw a distinction between the two, for the taint of immorality exists in either case. The decisions of the Bombay High Court reported in Hussainali v. Dinbai A.I.R. 1924 Bom. 135, and Kisendas v. Dhondu [1920] 44 Bom. 542, clearly lay down that even if the consideration be past cohabitation, it would not be valid under Section 23, Contract Act, and therefore the contract would be unenforceable. Reference was made to these rulings in the judgment of the lower appellate Court, but it tried to distinguish them on the ground that the connexion was found to be adulterous in those cases. In my opinion, the fact that it was an adulterous connexion would make it illegal besides being immoral. In the present case, there is no doubt that the connexion was immoral, though it would not come within the purview of any section in the criminal law. If the Court regard this as immoral, then