Judgment 1. This appeal is presented under the Letters Patent on behalf of the plaintiff Syed Shah Nasihuddin Ahmad against the judgment of Mr. Justice B.N. Rai dated 12th May, 1253, in Second Appeal No. 1889 of 1950. 2. The plaintiff brought the suit alleging that he was entitled to a sum of Rs. 2,400.00 from the defendant Syed Shah Salihuddin Ahmad on the basis of an agreement dated 15th April, 1946. It appears that the plaintiff was a candidate for the post of Sajjadanashin of Khankah Kabiria of Sasaram. The defendant was also a candidate for the same office. But the plaintiii withdrew his candidature at the request of the defendant. It is alleged that the defendant agreed in lieu of the withdrawal of the plaintiff to give him Rs. 75/- per month out of his own allowance as a Motawalli over and above Rs. 100.00 per month which was already being paid to the plaintiff as an allowance out of the funds of the Khankah. The defendant executed a deed of agreement, which is Exbt. 2, promising therein to pay to the plaintiff Rs. 75/- per month in lieu of the withdrawal of the plaintiff from the candidature for the post of Sajjadanashin. After the plaintiff withdrew from contest the defendant was the only candidate left and he was duly appointed as Sajjadanashin and Motawaili. The defendant however did not keep his promise and in spite of repeated demands he failed to pay to the plaintiff the stipulated sum of Rs. 75/- per month. The plaintiff, therefore, brought the present suit for realising RS. 2400.00 which represented the additional allowance at the rate of Rs. 75/- per month for thirty two months, that is, from the 16th of April, 1946 to the 16th December, 1948. The suit was contested by the defendant, firstly, on the ground that the deed of agreement was not genuine, and secondly, on the ground that even if the document was genuine it was an illegal contract and could not be enforced in a Court of law. The trial Court dismissed the suit on the ground that the document dated the 15th of April 1946, was illegal and not enforceable in a Court of law. The trial Court accordingly dismissed the suit. The trial Court dismissed the suit on the ground that the document dated the 15th of April 1946, was illegal and not enforceable in a Court of law. The trial Court accordingly dismissed the suit. The decision of the trial court has been affirmed by the Subordinate Judge of Sasaram and also by the learned Single Judge of this Court in second appeal. 3. On behelf of the appellant Mr. Varma put forward the argument that the agreement dated 15th of April, 1946 was not against public policy and Mr. Justice B.N. Rai was not correct in holding that there was an illegal contract. It was contended that the defendant executed the agreement in favour of the plaintiff for paying an additional sum of Rs. 75/- per month not because the plaintiff withdrew his candidature for the office of Sajjadanashin and Motawalli but because there was love and affection between the parties. I do not think that the contention of the appellant is right in the matter of construction of the agreement, Ex. 2. It is true that at one place in the document the defendant states as follows: Isliye ham ba khosh raza wa bagbat apne ekrar hain wa likh dete hain ke hamara Chacha buzuragawa mosuf ko kabul se moblig Rs. 100/-mahana khankha Kabiria se milta ata hai usko bahal wa barkarar rakhate hue ba taur khidmat buzurgana manmokir apnhaq tauliyat se moblig Rs. 75/- mahana Syed Shah Nasihuddin Ahmad Saheb mosuf ko bela uzur kudami mah ba mah adai wa bebak kia karenge." But in another part of the document the defendant states that the plaintiff had withdrawn hia candidature at the defendants request and, therefore, an agreement for an additional sum of Rs. 75/- per month was being entered into. The relevant portion of Ex. 2 is in the following terms: "Chun beradram Syed Shah Najubuddin Ahmad Sajjadanashin Khankah Kabiria Sasaram ne mowarkha 14 April, 1946, ko bakazae elahi eafat kea aur unke jagahpar ba wohda Sajada-nashin manokir motabik kadim rewaj khandani ke wa Chancha hakiki Maulvi Syed Shah Nasibiddin Ahmad umidear wa bhahishmand hue ke aur hamne nijd Chacha hakiki 1st doa apsikia ke ap hamko is wohea per mamur wa kamyab apne khulus wamchabbat wa hamdardi se mokrrar kar den, Ke Chacha hakiki no Bamari istdoa ko kabul wo manzoor kia aur ba bokabla hamare apna dar-khast ko utha lia". On reading the document as a whole we feel no doubt that the parties intended that a sum of Rs. 75/- should be paid to the plaintiff per month in lieu of the fact that the plaintiff withdrew his candidature for the office of Sajjadanashin and Motawalli of the Khankah. If that is the right interpretation to be placed on the document, it follows as a matter of law that the contract was an Illegal contract within the meaning of Sec.23 of the Indian Contract Act, and the plaintiff cannot be permitted to get a decree on the basis of this illegal contract. The principle is embodied in Sec.23 of the Indian Contract Act and has been applied in a number of authorities. For example it was held in Saminatha Aiyar v Muthusami Pillai, ILR 30 Mad 530 (A), that an undertaking to pay money to a public servant to induce him to retire and thus make way for the appointment of the promisor was tantamount to a trafficking with reference to an office and, therefore, was void under Sec.23 of the Indian Contract Act. That is the judgment of Mr. Justice Subrahmania Ayyar and the principle on which the decision is based is that a bargain relating to public office should not be upheld as public interest would suffer. The effect of such a bargain would be to prevent public office being filled by the best available persons. In the language of English law an agreement of this kind is an office brocage agreement and therefore invalid and illegal as opposed to public policy. It was observed by Mr Justice Subrahmania Ayyar in ILR 30 Mad 530 (A), that there was no difference in principle between a contract to pay money as consideration for the retirement of a public servant and a contract for sale of public office. The learned Judge quoted the case of Parsons V/s. Thompson. (1790) 1 H Bl 322: 2 RR 773 (B), in support of his view. In the English case "Lord Longhborough C. J., observed in the course of his judgment as follows: "But this rasp rests on a private unauthenticated agreement between the officers themselves which cannot admit of any consideration sufficient to maintain an action. (1790) 1 H Bl 322: 2 RR 773 (B), in support of his view. In the English case "Lord Longhborough C. J., observed in the course of his judgment as follows: "But this rasp rests on a private unauthenticated agreement between the officers themselves which cannot admit of any consideration sufficient to maintain an action. If it could be proved that It was to be measured by money so as to form a valuable consideration it must be in respect to the time when it was made, when the plaintiff was prevailed upon to retire in favour of the defendant. In this view it certainly would approach very near to brocage. It would differ very little in effect from selling the interest itself though there would be a difference, in the conduct of the party who in the one case would be passive, in the other active. But his passive merit, if I may use the expression, would not avail him where his active exertion would be a demerit." A similar view has been taken by the Madras High Court in Karrupiah Pillai V/s. Ponnuchami Pillai, AIR 1933 Mad 768 (C), and by the Allahabad High Court in Puttu Lal V/s. Raj Narain, AIR 1931 All 428 (D). Counsel for the appellant relied upon the decision of Mr. Justice Sankaran Nair in Nizam Mohaddin V/s. Mahammad Vaffa, 8 Ind Cas 745 (Mad) (E). The ground of the decision is not apparent in the judgment as it is extremely short one. Perhaps the judgment proceeded upon the ground that there was no sale or trafficking of public office and, therefore, the agreement was not against public policy. But we do not think that the decision of Mr. Justice Sankaran Nair in 8 Ind Cas 745 (Mad) (E), is an authority in favour of the appellant. The reason is that Mr. Justice Sankaran Nair has expressly approved the decision in ILR 30 Mad 530 (A), for he was one of the learned Judges who dismissed the Letters Patent Appeal preferred against that judgment. (See the note in the report ILR 30 Mad 530 at p. 533 (A) . Counsel for the appellant also relied upon Girijanund Datta Jha v Sailajanund Datta Jha, ILR 23 Cal 645 (F), but that decision is clearly to be distinguished. (See the note in the report ILR 30 Mad 530 at p. 533 (A) . Counsel for the appellant also relied upon Girijanund Datta Jha v Sailajanund Datta Jha, ILR 23 Cal 645 (F), but that decision is clearly to be distinguished. It is important to notice that the learned Judges (Banerjee and Gordon JJ.) accepted the principle that a bargain relating to a public office should not be upheld if the interest of the public suffers and the best available persons do not fill up the office; nevertheless, on the special facts of that case it was held by the learned Judges that the compromise in question did not interfere with public interest and, therefore, should be upheld as a valid contract and as not being against public policy. It is also observed in that case that the qualifications of rival claimants were evenly balanced and the compromise should be supported also because there was waste of public fund in litigation concerning succession to a public office. We, therefore, think that the decision in ILR 23 Cal 645 (F), is a decision on special facts and the principle cannot be extended to the present case, where the facts are materially different. Learned Counsel for the appellant also raised the point that the office of the Motawalli or Sajjadanashin of Khankah Kabiria was not in the nature of a public office and so the principle laid down in ILR 30 Mad 530 (A), cannot apply. We do not accept this argument. There is no difference so far as the application of the principle is concerned between a public office and the office of the trustee or Motawalli of a public charitable endowment like Khankah Kabiria of Sasaram. In our opinion there is no substance in the argument of the learned Counsel for the appellant on this point. 4. For the reasons we have given we hold that the agreement between the parties dated 15th April, 1946, for the payment of an additional sum of Rs. 75/- per month is an illegal contract and is hit by the doctrine of public policy. We, there fore, hold that the decision of Mr. Justice B.N. Rai is right and this appeal under the Letters Patent must be dismissed with costs.