1872 JOSEPH v. SOLANO. The case of the plaintiff as to the note for Rs. 744 was that, in the account delivered on the 15th of January, he had by mistake given the defendant credit for Rs. 744 more than he had received. It was in the item of "cash received from the Secretary of the Calcutta Races, balance of racing account." It was not illegal for the plaintiff to receive this money, or to give the defendant credit for it, and there is no illegality in the defendant giving a note for what he has been credited with by mistake. It is true that, if the mistake had not been made, the balance for which the note for Rs. 7,000 was given would have been greater. The sum against which this was credited would have been included in the note, and, as due upon it, could not have been recovered, because of the illegal part of the consideration; but this sum was not an illegal claim, and the defendant would be liable to pay it, although the note could not be sued upon. The learned Judge seems to have treated the two notes as jointly forming a security for the whole balance after correcting the mistake, and to have considered he was bound to hold that both were tainted with illegality. I do not think we are bound to do this. The illegal part of the consideration was in the first note, and need not be held to extend to the second. Justice certainly does not require this, if the transaction admits of a different meaning. With regard to this note I think the plaintiff is entitled to recover in the suit as now framed. Upon the whole case I am of opinion that the decree dismissing the suit should be reversed; that the plaint should be amended by adding a claim for the consideration for the Rs. 7,000 note; and the case should be referred to a Judge to take the account and determine what is due to the plaintiff in respect of it. The plaintiff has partially succeeded in the appeal; but seeing that it might have been unnecessary if he had asked to have the plaint amended, and sought to recover upon the consideration for the note, I think each party should pay his own costs of the appeal and of the hearing before Macpherson, J. MARKBY, J.-In this case I should be disposed to treat the three items in the account,-that relating to shares received, and those relating to tickets purchased in a lottery,-as standing upon the same footing. The allowance of each of these items in the account, I must say, seems to me to stand precisely in the same relation to the original illegal act. It is not, however, very easy to deduce any very clear general principle from the decided cases by which it can be determined whether, where there has been an illegal contract and an illegal act done, a subsequent promise following thereon can be enforced. The subsequent promise is sometimes held to be "tainted" with the illegality, and sometimes And the Judges appear to me to have determined in each. case according to their own judgment and discretion whether the illegal act is so far separable from the subsequent promise as that the latter may be enforced. In one set of cases, to use the words of Buller, J. (1), the action is considered to be founded, not on the illegal contract, but on a ground totally distinct from it; in the other set of cases, to use the words of Jervis, C.J., the new promise "springs from, and is the creature of, the illegal agreement." To which of these two classes does the present case belong? Did the promise contained in these promissory notes spring from, and was it the creature of, the original illegal agreements by the defendant to give the plaintiff a share in certain lotteries, and to pay for tickets in them, or was it a separate agreement? Was it made by the parties in the character of offenders against the Lottery Act, or was it made in a wholly different character? Expressed at length, the agreement contained in the first promissory note may be stated thus:-" Whereas you have trained, kept, and expended money upon certain horses belonging to me at my request; and whereas you have paid certain moneys to the Secretary of the Calcutta Races at my request; and whereas you have paid for certain tickets in a lottery at my request; and whereas I have received certain sums of money for bets and lotteries on your account, for all which debts I mortgaged to you my horses, which horses you were about to sell; and whereas at my request you withdrew the advertisement for the sale,-I promise to pay you Rs. 7,000." The original illegal agreement to give the plaintiff a share in the lotteries, and to pay for the tickets, is so far imported into these notes that, had that agreement not 1872 JOSEPH v. SOLANO. (1) In Harman v, Russell, 1 B. & P., 299. 1872 JOSEPH v. SOLANO. been made, the defendant would probably not have allowed, nor would the plaintiff have claimed, the whole of the item of Rs. 1,149, or any part of the items of Rs. 64 and Rs. 16. But it does not seem to me that for this reason we are bound to say that the promissory notes spring from, and are the creature of, an illegal agreement. No doubt, the illegal promise which had been made was in some sort one of the matters upon which the defendant based his promise to pay, but so it was in many of the cases in which the promises have been upheld. As, therefore, I think the promissory notes are good and valid notes, it is not strictly necessary for me to say whether the plaintiff may now recover in this suit any portion of the claim in any other form. But as a matter of fact, I do fully concur with the Chief Justice in thinking that, in the view which he takes of the notes, we can and ought to allow the plaintiff so to recover. Decree reversed. Attorneys for the appellant: Messrs. Berners, Sanderson, and Upton. Attorney for the respondent: Mr. Watson. [PRIVY COUNCIL.] * P. C. 1871 July 17, 18. FAEZ BAX CHOWDHRY (DEFENDANT) v. FAKIRUD- ON APPEAL FROM THE HIGH COURT OF JUDICATURE AT Benami-Evidence-Suspicion. In determining the right to property seized in execution, the Court must not declare a person claiming as purchaser to be a benámidár for the debtor upon suspicion merely, but its decision must rest upon legal grounds established by legal testimony. * Present:-THE RIGHT HON'BLE SIR JAMES W. COLVILE, SIR ROBERt Phillimore, LORD JUSTICE JAMES, LORD JUSTICE MELLISH, AND SIR LAWRENCE PEEL. 1871 THIS was an appeal from a decision of the High Court (Bayley and Pundit, JJ.) dated 15th January 1866 (1), reversing FAEZ BAX a decision of the Principal Sudder Ameen of Furreedpore. CHOWDHRY v. FAKIRUDDIN AHASAN The property in dispute belonged to Karim Bax, the appel- MAHOMED lant's father, who mortgaged it, for Rs. 30,000, to Khaja Abdul CHOWDHRY. Ganni, who, in 1853, absolutely foreclosed and got possession. Karim Bax was in great difficulties, and, amongst others, the respondent held a decree against him for Rs. 3,000 odd. Khaja Abdul Ganni, being a friend of the appellant's family and anxious to assist them, agreed with the appellant to sell the property to him for Rs. 32,000; and the appellant, having obtained an advance of money from one Ganganarayan, agreed to give the latter a patni of the property and a bond for Rs. 4,000. Khaja Abdul Ganni then completed the sale, receiving from the appellant Rs. 25,000 and a bond for the residue; and the appellant gave the patni to Ganganarayan. The documents were duly registered, and possession taken under them in January 1857. In 1860, the respondent seized the property as belonging to the appellant's father, Karim; but, on a claim by the appellant, the property was released. The respondent brought the present suit for a declaration that the property belonged to Karim, on the ground that the appellant was benámidár for his father. Khaja Abdul Ganni and Ganganarayan gave evidence, and the Principal Sudder Ameen decided that the transaction was bonâ fide on behalf of the son, and that he was the real owner. The High Court reversed that decision, and the son appealed to England. Sir R. Palmer, Q.C., and Mr. J. D. Bell for the appellant.The sole question in such cases is, whose money was used, and who is liable for the money borrowed. A benámidár is a person wholly without interest in the property-Nawab Umjad Ally Khan v. Mussamat Mohumdee Begum (2). Even in joint families if it be proved that the money came from separate funds of a (1) 5 W. R., 43. (2) 11 Moo. I. A., 517; see p. 546. 1871 FAEZ BAX CHOWDHRY v. FAKIRUDDIN single member, the property belongs to him separately—Dhurm Das Pandey v. Mussamat Shama Soondri Dibiah (1). Here the money was clearly the son's, and he was liable upon, and could MAHOMED be imprisoned for non-payment of, the bond. The High Court CHOWDHRY. decided the case on suspicion as opposed to evidence, contrary to the principle laid down in Sreemanchunder Dey v. Gopaulchunder Chuckerbutty (2). At this point the appellant's Counsel were stopped by the Court. AHASAN Mr. Cotton, Q.C., and Mr. Doyne for the respondent.—This being a purchase of what had been the father's property in the son's name, there is a strong primâ facie case of benami. The test is, for whose benefit was the purchase. The sole object of Abdul Ganni was to benefit the father and his family, not the son; and as there were decrees against the father, the son's name, as a matter of course, was used, and the finding of the High Court is not founded on suspicion, but on the natural conclusion to which Indian Judges of experience would come in weighing with the direct evidence the surrounding circumstances. Their LORDSHIPS delivered the following judgment:In the judgment delivered in the case to which their Lordships have been referred, viz., Sreemanchunder Dey v. Gopaulchunder Chuckerbutty (2), there is this passage:-" Undoubtedly there are in the evidence circumstances which may create suspicion, and doubt may be entertained with regard to the truth of the case made by the appellant; but, in matters of this description, it is essential to take care that the decision of the Court rests not upon suspicion, but upon legal grounds established by legal testimony." That principle is sufficient to dispose of this case which differs from the case referred to in this respect that, in the case now to be decided, there is not, in their Lordships' opinion, any legal evidence to create suspicion, or any doubt to be entertained with regard to the substantial honesty of the transaction. It appears quite clear that the father, whose judgmentcreditor obtained this property, was in insolvent circumstances; that he had not a farthing of money with which to purchase the (2) 11 Moo. I. A., 28. (1) 3 Moo. I. A., 229; see p. 240. |