Allahabad High Court
Daya Ram vs Thakuri on 31 March, 1924
Equivalent citations: 83IND. CAS.21
JUDGMENT Daniels, J.
1. This is an application for revision of a Small Cause Court decree. The facts are that the plaintiff is the sufructuary mortgagee of an occupancy-holding under a mortgage executed in the year 1919. His case is that he has been dispossessed by a third party and, therefore; under a covenant contained in the mortgage-deed he claims to recover the mortgage money from the mortgagor. It has been repeatedly held that a mortgage of an occupancy holding under the present Tenancy Act is illegal. The Court below refers to two such rulings, the latest being that in Har Prasad Tewari v. Sheo Gobind Tiwari 67 Ind. Cas. 793 : 44 A. 486 : 20 A.L.J. 318 : (1922) A.I.R. (A.) 134. That ruling entirely covers the present case. The Court refused to recognise the transaction in any way, even by allowing a suit for the mortgage-money on the basis of a personal covenant contained in the mortgage. The same principle has been laid down with reference to another class of suits in Vilagat Husain v. Musammat Misran 72 Ind. Cas. 92 : 21 A.L.J. 303 : 45 A. 396 : (1923) A.I.R. (A.) 504: "Once it is established that the parties are in pari delicto the Courts will not assist an illegal transaction in any respect, that is, the person who asks the Court to do something will fail."
2. The applicant relies on the case of Jarbandan v. Badri 83 Ind. Cas. 19 : 45 A. 621 : (1924) A.I.R. (A) 80 : 21 A.L.J. 480 but that case proceeds on special facts and is clearly distinguishable.
3. The application for revision fails and is accordingly dismissed with costs.