Rao Bahadur K. S. Venkatarama v. Janab V. Hamid Sultan Maracayar
1922-12-05
SPENCER
body1922
DigiLaw.ai
JUDGMENT Spencer, J. 1. This Civil Revision Petition is connected with an order made by the Subordinate Judge at Negapatam in reference to an election to the Taluk Board of Negapatam under the powers possessed by him as an enquiring authority under the rules in Appendix D to the Madras Local Boards Act. 2. An objection has been taken that we have no power to revise the order of the Subordinate Judge, which by Rule 12, Clause 3, of the rules for the conduct of inquiries and the decision of disputes relating to elections is declared to be final, after he has decided whether an election is void for non-compliance with the provisions of the Act or the rules made thereunder. This question has been fully considered by a Bench of this Court, on which my learned brother was one of the Judges, when it was decided that the High Court could revise an Order of a Subordinate Judge on an election petition, if he had acted with material irregularity or illegality see Ramaswami Goundan v. Muthu Velappa Goundan (1922) 44 M.L.J. 1. I agree with that decision in preference to of things in order to do so to set up his own wrong doing, he will not be allowed to do so. In this matter the respondent, who merely takes from the late wrong-doer, Kumaraswamy Mudaly, can be in no better position than Kumaraswamy Mudaly himself; and applying that principle, it is quite impossible for him to set up that the consent that his adoptive father gave was obtained from him by a promise of corrupt payment. In the view I take of this part of the case, it is unnecessary for me to consider the question whether the subsequent release given by Kumaraswami of any rights he might have possessed was a valid release or not. 3. Appeal No. 120 of 1921 must be allowed and the suit dismissed with costs throughout. Appeals Nos. 118 and 119 will be allowed with costs here and below. Coutts Trotter, J. 4. I am of the same opinion and only add a few words because we are differing from the learned trial Judge among other things on a question of fact.
Appeals Nos. 118 and 119 will be allowed with costs here and below. Coutts Trotter, J. 4. I am of the same opinion and only add a few words because we are differing from the learned trial Judge among other things on a question of fact. That question is whether there was evidence before the learned Judge on which he ought to have come to the conclusion that the reasonable inference from the facts was that Kumaraswami was influenced by corrupt motives to give his consent as a Sapinda to the adoption. Looking at the facts as found it appears to me that they cannot reasonably give rise to more than at best a suspicion, and having regard to the dates, namely, that the consent was in July 1909 and the alleged promise of payment was in the following October, it seems quite consistent with the facts to hold that Kumaraswarny, having given his consent from perfectly proper motives, afterwards thought that he could-make something out of it. Therefore I agree with my Lord that, on the facts as we know them the question of corruption in the exercise of the choice and discretion by Kumaraswarny as to giving his consent as a Sapinda does not arise. 5. There were certain points of great interest argued in this case, but I do not think that they are necessary for our decision and I do not propose to discuss them. I respectfully agree with the decision of my Lord and my brother Wallace J. to which reference has been made. 6. The only other thing about which I wish to say a few words is with regard to the question of estoppel. I do not think that the learned trial Judge had a fair opportunity of dealing with that question, because he says in his judgment at page 24, "The question of estoppel raised by the 1st defendant which is the subject-matter of issue 3 had not been pressed, and the issue must be found for the plaintiff." I take that to mean not that the learned Judge decided that question but that his attention was not fairly drawn to it so as to enable him to deal with it. That I take to be the doctrine of estoppel proper with which my Lord has dealt.
That I take to be the doctrine of estoppel proper with which my Lord has dealt. But I do not see that there was even a mention made to the learned Judge of another ground of defence, which is perhaps the strongest that we have to deal with, namely, that based on the maxim Nemo allegans turpitudinem snam est audiendus. That maxim belongs to Civil Law and is taken from the Institutes; it reappears in the Common Law in England for example in the two cases to which my Lord referred Doe dem. Roberts. v. Roberts (1819) 2 B. & Ald. 367 and Prole v. Wiggins (1836) 3 Bing. 230. The question is whether in this Court that salutary principle of law is to be applied. There is authority both in this Court in the case to which my Lord has referred and in Bombay in I.L.R. 31 Bom. 405, for applying such a maxim, and I am entirely in concurrence with the view that we should refuse to allow the respondent in this case, who can only claim through Kumaraswamy, to set up the case that the person through whom he claims had his judgment vitiated by the acceptance of a corrupt consideration. 7. I agree that these appeals must be allowed with costs.