Undisputedly, both, the predecessorintitle
of the
defendant(s) as well as the plaintiff, are confederates in this
illegality. Both, the plaintiff and the predecessorintitle
of the
defendant(s) can be said to be equally responsible for violation
of law.
25. However, the ticklish question that arises in such a
situation is: “the decision of this Court would weigh in side of
which party”? As held by Hidayatullah, J. in Kedar Nath Motani
(supra), the question that would arise for consideration is as to
whether the plaintiff can rest his claim without relying upon the
illegal transaction or as to whether the plaintiff can rest his
claim on something else without relying on the illegal
transaction. Undisputedly, in the present case, the claim of the
plaintiff is entirely based upon the agreement to sell dated
15.05.1990, which is clearly hit by Section 61 of the Reforms
Act. There is no other foundation for the claim of the plaintiff
except the one based on the agreement to sell, which is hit by
Section 61 of the Act. In such a case, as observed by Taylor, in
his “Law of Evidence” which has been approved by
Gajendragadkar, J. in Immani Appa Rao (supra), although
illegality is not pleaded by the defendant nor sought to be relied
upon him by way of defence, yet the Court itself, upon the
illegality appearing upon the evidence, will take notice of it, and
will dismiss the action ex turpi causa non oritur actio i.e. No
polluted hand shall touch the pure fountain of justice. Equally,
as observed in Story’s Equity Jurisprudence, which again is
approved in Immani Appa Rao (supra), where the parties are
concerned with illegal agreements or other transactions, courts
of equity following the rule of law as to participators in a
common crime will not interpose to grant any relief, acting upon
the maxim in pari delicto potior est conditio defendentis et
possidentis.
26. It could thus be seen that, the trial Judge upon finding
that the agreement of sale was hit by Section 61 of the Reforms
Act, had rightly dismissed the suit of the plaintiff.
27. Now, let us apply the another test laid down in the
case of Immani Appa Rao (supra). At the cost of repetition, both
the parties are common participator in the illegality. In such a
situation, the balance of justice would tilt in whose favour is the
question. As held in Immani Appa Rao (supra), if the decree is
granted in favour of the plaintiff on the basis of an illegal
agreement which is hit by a statute, it will be rendering an
active assistance of the court in enforcing an agreement which
is contrary to law. As against this, if the balance is tilted
towards the defendants, no doubt that they would stand
benefited even in spite of their predecessorintitle
committing
an illegality. However, what the court would be doing is only
rendering an assistance which is purely of a passive character.
As held by Gajendragadkar, J. in Immani Appa Rao (supra), the
first course would be clearly and patently inconsistent with the
public interest whereas, the latter course is lesser injurious to
public interest than the former.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 76307631
OF 2019
SMT. NARAYANAMMA Vs SRI GOVINDAPPA
B.R. GAVAI, J.
Dated:SEPTEMBER 26, 2019.
