Thomson J (delivering oral judgment):

This is a claim for specific performance, or alternatively for damages for breach, of a contract which it is said was entered into between the plaintiff and the defendant in August 1953, relating to Temporary Occupation Licence No. 43304 of which the defendant at all material times was and still is the holder, and a house built upon the piece of land in respect of which that licence was issued.

In my opinion the plaintiff's claim must fail.

In the first place, I am satisfied that on a true construction of the Plaint and on the view I take of the evidence as to what was, if the plaintiff's story be true, the intent of the parties, the alleged contract was in truth and in fact an attempt to sell and to purchase the defendant's rights under the Temporary Occupation Licence. As such, it was in my opinion, unlawful by reason of s. 24 of the Contracts Ordinance as being of such a nature that if permitted it would defeat the provisions of any law and that it is therefore by reason of that Section void.

The land in question is State land. Dealings in State land, other than mining land and land in Malay Reservation, are subject to the provisions of the Land Code and any subsidiary legislation enacted under it. The licence with which I am here concerned was issued under reg. 40 of the Land Rules 1930 and by r. 41 of these Rules it is stated in terms "No licence for the temporary occupation of State land shall be transferable". That is the provision of the law which would be defeated if effect were given to a contract of this nature.

In that connection I quote the following passage from Pollock and Mulla's book on the Indian Contract Act, 7 Edn., p. 145:

Where a specific kind of land or specific rights in land have been declared by the Legislature to be not transferable, a transfer of such land or rights in land is void, as to permit it would be to defeat the provisions of the law within the meaning of the section." 'The Section', of course being s. 23 of the Indian Contract Act.

I am not overlooking the point that this question of the contract being unlawful has not been specifically pleaded. There are obvious reasons why it was not pleaded. The defendant has subsequently entered into a similar sort of transaction and no doubt it did not lie in his mouth to plead its illegality. Nevertheless, to my mind, it is well settled law that when a question of this sort arises clearly on the evidence "it is the duty of the Court when asked to give a judgment which is contrary to a statute to take the point although the litigants may not take it." (See Phillips v. Copping [1935] 1 KB 15, 21).

I am aware that it may be an inconvenient point to take. I have been told from the Bar, and I fully accept it, that transactions of this sort have been going on for very many years. That, however, does not affect the point. It is equally true that betting transactions have been going on for many years, yet the Courts are not asked to take cognizance of them. And again, if such transactions have been going on for many many years and a body of supposed rights and interests have been thereby created it is for the State to remedy any injustice that may have arisen by way of legislation and not for the Courts to attempt to do so by flying in the face of the law.

Such is my opinion as to the question of law that arises in the case. I may be right and I may be wrong. As the matter is of some importance, I can only express a hope that it may be taken further.

Unfortunately, however, I have come to certain very definite conclusions regarding the facts of the case and I feel it to be my duty to state them now for if I do not state them it might be said that I had allowed the unsuccessful plaintiff to come to the Court of Appeal in ignorance that I had come to conclusions of fact.

Putting aside the question of illegality, the whole case turns on what took place at an interview which admittedly took place between t