Das, J.:— This is an appeal under the Letters Patent by the plaintiff from a decision of Shearer, J. reversing the decision of the Courts below in a suit for recovery of money which the appellant had paid to respondents 1 and 2 in the following circumstances. The appellant had entered into an agreement with respondents nos. 1 and 2 by which the latter, had agreed that the former's daughter, who was then a minor, would be married to respondent no. 3, who was then the minor son of respondent no. 1. Respondent no. 2 was the adult son of respondent no. 1 and brother of respondent no. 3. The agreement was that the appellant would pay a sum of Rs. 1,001 and would also give silver and brass utensils to the value of Rs. 152. The tilak ceremony was performed at Aurangabad, where the respondents resided, and the money was paid partly before and partly at that time. Soon after the performance of the ceremony respondent no. 3 had some sort of a fit, which led the appellant to make an enquiry with the result that it was found that the bridegroom was an epileptic subject. The appellant then broke off the marriage and demanded back the sum of Rs. 1,152 which he had paid to respondents 1 and 2. The Courts below held that the appellant was entitled to a decree for a sum of Rs. 909-6-9 pies, excluding the amount which had been spent on the tilak ceremony. The final Court of fact modified the decree of the learned Munsif by directing that the decree would be against respondents 1 and 2 alone and not against respondent no. 3. Respondents 1 and 2 appealed to this Court, and Shearer, J. allowed the appeal, holding that the agreement between the appellant and the major respondents was an agreement only, a mere nudum pactum, and not a contract, and, further, holding that if the tilak was a conditional gift, then the appellant was not entitled to recovery of the money inasmuch as the marriage did not take place on account of his own default.
The questions which have been urged before us were considered by a Bench of this Court in a very recent decision—Lala Dharnidhar v. Kanjhi Sahay. In my opinion, that decision covers the present case and relieves us of the duty of a fresh examination of the case-law on the subject. Two questions arose for decision in that case: firstly, whether an agreement to make a payment to a father in consideration of the marriage of his son or daughter is illegal and against public policy, and, therefore, hit by section 23 of the Contract Act, and secondly, whether the money paid under such an agreement can be recovered after the contract had been resiled from by the plaintiff himself. Manohar Lall, J. referred to the decisions in Bakshi Das v. Nadu Das, Kalavagunta Venkate Kristnayya v. Kalavagunte Lakshmi Narayana and Ramsumaran Prasad v. Gobind Das(3), and a large number of other decisions on the subject, and held that in the case before him it had not been proved that the contract was immoral or illegal. Ramaswami, J., the other member of the Bench, was inclined to hold that the contract was opposed to public policy, and, therefore, void. Both the Judges, however, answered the second question in the affirmative. Manohar Lall, J. expresed himself as follows:
“Let me assume, however, that the contract was illegal per se and, therefore ab initio void. Even on this supposition the defendant cannot retain the amount which he has received from the plaintiff because the plaintiff in suing to recover possession of his Rs. 2,250 is not carrying out the illegal transaction but is seeking to put himself and the defendant as far as possible in the same position as they were before that transaction was determined upon, and it is the defendant who is relying upon the illegal contract and is seeking to make title to the money through and by means of it.”
Reference was made to the decision in T.P Petherpermal Chetty v. R. Muniandiservai(4) and other decisions. It was further observed that although a Court may not enforce an agreement to pay money to the parents or guardian of an intended bride or bridegroom on the ground that the agreement is opposed to public policy, yet a suit is maintainable for the recovery of the sum actually paid, pursuant to the agreement, if the contract is broken, and the marriage does not take place. It was observed that the Court would read an implied condition in the contract that the money would be returned if the marriage does not take place. Ramaswami, J. also considered the question and stated that when the marriage is not performed there is ample authority in support of the view that the money should be refunded. Learned Counsel for the respondents, had contended before us that the agreement was ab initio void, as it was immoral and against public policy. It is, I think, unnecessary in this appeal to decide the question whether a contract or agreement for payment of money to a father in consideration of the marriage of his son or daughter is immoral or against public policy, and, therefore, hit by section 23 of the Contract Act. Assuming that the agreement or contract was invalid, the question still remains whether the appellant is entitled to get back the money when the marriage has not been performed. That question has been authoritatively answered by a Bench of this Court and it is not necessary to examine in detail the cases which have already been examined and referred to in that decision. Learned. Counsel for the respondents has sought to distinguish that decision on the ground that the money in that case was paid for purchasing ornaments for the bride, and, therefore, the claim of the plaintiff in that case could be treated as a suit for recovery of money had and received. It appears, however, from that decision that what was found was that the plaintiff, the father of the girl had paid Rs. 2,250 to the defendant in order that the latter might consent to the marriage of his son with the plaintiff's daughter. The decision was, therefore, based on an agreement to make a payment to the father of the bridegroom, so that he might consent to the marriage of his son with the plaintiff's daughter. On that basis it was decided that even if the contract was illegal per se, and therefore, ab initio void, the plaintiff was still entitled to get back the money when the marriage was not performed. I think the same principle would apply in the present case. The payment was made by the appellant to the two major respondents in consideration of their consenting to the marriage of respondent no. 3 with the appellant's daughter. The Courts below have concurrently found that the appellant was justified in breaking off the marriage on the ground that respondent no. 3 was subject to epileptic fits. The present case is even stronger than the case in Lala Dharnidhar. In that case the plaintiff had disclosed no grounds why the marriage was broken off. In the case before us it has been found by the Courts below that the appellant was justified in breaking off the marriage. That being the position the appellant is clearly entitled to the money which had been paid to the two major respondents.
Learned Counsel for the respondents has also contended before us that there has been a part performance of the contract, and in view of such part performance the money cannot be returned. He has relied on Kearley v. Thomson. I am unable to appreciate this argument. The money was paid for the marriage and no marriage has been performed. It is beyond any dispute that the performance of the tilak ceremony is no part of the performance of a marriage. The claim of the appellant cannot, in my opinion, be resisted on the principle of part performance.
For these reasons I would allow this appeal, set aside the order of the learned Judge of this Court and restore that of the learned Additional Subordinate Judge. The appellant will get a decree against respondents 1 and 2 for the amount found by the learned Additional Subordinate Judge. The appellant will be entitled to his costs from respondents 1 and 2. There was no decree against respondent no. 3, and the appellant must pay the costs of respondent no. 3 in this Court.
Agarwala, C.J:— I agree.
K.D
Appeal allowed.