Dharnidhar v. Kanhji

Manohar Lall, J.:— The material facts found are that the plaintiff appellant concluded negotiations for the marriage of his daughter with the son of the respondent on the promise that the plaintiff would send Rs. 2,449 to the defendant apparently for the purchase of ornaments for the bride, that the sagun and tilak would be performed on the 4th of May, 1942 and the marriage would be solemnised on the 10th of May and the plaintiff would also pay a sum of Rs. 250 for purchasing some articles, for the bridegroom. In accordance with this agreement, the plaintiff sent Rs. 2,250 to the defendant by a cheque on the Imperial Bank, Gaya, and it was duly cashed by the defendant. Two days later, however, on the 24th of April, the plaintiff sent a wire to the defendant cancelling the arrangements and intimating that the marriage will not take place now. The plaintiff requested the defendant to refund, but the defendant refused to pay back the money received by him. The plaintiff instituted the suit giving rise to this appeal on the 19th of December, 1944, asking for a refund of the amount which he had sent to the defendant. The defendant resisted the claim on the ground that the plaintiff was not justified in cancelling the contract and that the defendant himself was always willing to perform his part of the promise. It was also asserted that the plaintiff had caused disgrace, social opprobrium and mental worry to the defendant and his family and, therefore was not entitled to recover the amount. It was further pleaded that in accordance with the request of the plaintiff the defendant had already made over Rs. 250 to his son, the bridegroom. The defendant also pleaded that he had utilised the balance of the amount received to meet the expenses in connection with the intended marriage, but the findings of fact of both the courts are against this plea. It must, therefore, be taken that the facts amount to this that the plaintiff, the father of the girl, paid Rs. 2,250 to the defendant in order that he may consent to the marriage of his son with the plaintiff's daughter. It should also be stated that the plaintiff gave no reasons whatsoever either in the plaint or in his evidence as to why he had cancelled the contemplated marriage of his daughter with the defendant's son beyond stating that he does not feel disposed to disclose the reasons for the cancellation.

The courts below have dismissed the suit upon the ground that the plaintiff should not have resiled from the contract. Hence the appeal to this Court.

Two questions emerge for decision: firstly whether the agreement was illegal and against public policy and therefore hit by section 23 of the Contract Act, and secondly whether the money paid under this agreement can be recovered after the contract had been resiled from by the plaintiff himself.

A large number of cases have clustered round this difficult and interesting question which will be found reviewed in Bakshi Das(1) by Mukherjee, J. in the year 1905 and by the Madras High Court in the, Full Bench case of Kalavagunta Venkata Kristnayya(2) and in two later cases of the Madras High Court in Srinivasa Ayyar(3) and Salliyal Kotakkat Mannakhal Narayanan Namburdiri(4). Many of these cases were also considered in this Court in Ram Sumran Prasad(5) and in two later decisions of this Court in Mt. Sonphula Kuer(6) and Janak Prasad(7). The question has also been considered by the Bombay High Court and also by the Lahore High. Court, Allahabad High Court and Nagpur High Court.

In my opinion the plaintiff is entitled to succeed whether we apply the principles culled by Mukherjee, J. in Bakshi Das's case or whether we apply the rule enunciated by the Full Bench of the Madras High Court in Kalavagunta Venkata Kristanayya. Both these decisions seem to have been approved by a Division Bench of this Court in Ram Sumran Prasad although the question which arises for decision in the present case was not the question which arose for decision in the Division Bench case.

The following propositions of Mukherjee. J. are relevant to the present enquiry. The second proposition is: “An agreement to pay money to the parents or guardian of a bride or bridegroom, in consideration of their consenting to the betrothal, is not necessarily immoral or opposed to public policy. Where the parents of the bride are not seeking her welfare, but give her to a husband otherwise ineligible, in consider action of a benefit secured to themselves the agreement by which such benefit is secured is opposed to public policy, and ought not to be enforced.”

The third proposition is: “Where an agreement to pay money to the parents or guardian of a bride or bridegroom, in consideration of their consenting to the betrothal, is under the circumstances of the case neither immoral nor opposed to public policy, it will be enforced, and damages also will be awarded for breach of it.”

The fourth proposition is: “A suit will be to recover the value of ornaments or presents given to an intended bride or bridegroom in the event of the marriage contract being broken.”

The fifth proposition is: “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 any sum actually paid, pursuant to the agreement, if the contract is broken and the marriage does not take place.”

The sixth proposition is: “If one of the contracting parties alleges that the agreement is opposed to public policy, it is for him to set out and prove those special circumstances which will invalidate the contract.”

How do the facts stand in the present case? The onus was on the defendant to allege and prove any special circumstance which will invalidate the contract. He has not proved any special circumstance beyond stating that he does not know why the contract has been broken by the plaintiff. The courts below have come to the conclusion that the plaintiff was at fault in breaking the contract because he has not given any reason why he was not agreeable to perform the contract of betrothal and marriage. The whole basis of this finding is the reluctance or unwillingness of the plaintiff to disclose the reason which led him to break the contract. In the absence of any circumstance, the Court is entitled to assume that the father of the bride must have special good reasons which forced him to break the contract. I cannot draw a contrary inference from the mere fact that the plaintiff for reasons of delicacy does not like to disclose why he was unwilling that this betrothal should take place. But as there is a finding of fact I am prepared to accept it as binding on this Court in second appeal.

The courts below appear to hold that the contract in the present case was immoral and opposed to public policy. But no facts have been found that justify this conclusion. The defendant does not say the contract is illegal, the plaintiff does not assert, it is illegal or immoral. There is a complete absence of any evidence on this point. I must hold as a matter of law that the contract in the present case is not proved to be immoral or illegal.

The question which arises then is whether the plaintiff, who has himself broken the contract, should be given a decree for recovery of the sum actually paid by him. I do not see any reason why the fifth proposition of Mukherjee, J. should not come to the help of the plaintiff. Further, I would support that conclusion by holding that there was an implied condition at the time of making over the money to the defendant that he would return the money if the marriage does not take place.

In an old English case [Oldenburgh's case] it was held that where a person courted a lady and presented her with a jewel and the marriage not taking place the plaintiff was held entitled to recover the gift from the lady because the property had not changed by the gift which was of a specifical intent namely cause matrimonii praelocuti. In that case the contract was broken by the man. A number of old and recent English cases bearing upon the question, will be found reviewed by McCardie, J. in Cohen v. Sellar. The learned Judge towards the end of his judgment has pointed out the circumstances in which he would imply a condition attached to the gift by the gentleman to the lady.

Applying these principles to the fact of the present case, I am of opinion that it should be held that the payment of the money by the plaintiff to the defendant was not an absolute and free gift but it was a gift subject to the overriding condition that should the marriage not take place whether through the refusal of the plaintiff or not, the gift is to be returned. It was open to the defendant to allege and prove that there was no such express or implied condition. The defendant could also claim damages for any loss or injury suffered by the resiling of the plaintiff, but no evidence was led before the Court.

It is interesting to refer to Mitakshara, Chapter II, section 11, verses 27, 28 and 29 which are as follows:—

“27. One, who has verbally given a damsel (in marriage) but retracts the gift, must be fined by the King, in proportion to the amount of) the property or (the magnitude of) the offence; and according to (the rank of the parties) their qualities and other circumstances. This is applicable, if there be no sufficient motive for retracting the engagement. But if there be good cause, he shall not be fined, since retractation is authorised in such a case. The damsel, though betrothed, may be withheld, if a preferable suitor present himself.

28. Whatever has been expended, on account of the espousals, by the (intended) bridegroom, (or by his father or guardian) for the gratification of his own or of the damsel's relations, must be repaid in full with interest, by the affiancer to the bridegroom.

29. Should a damsel, anyhow affianced, the before the completion of the marriage, what is to be done in that case? The author replies. ‘If she die (after troth plighted) let the bridegroom take back the gifts which he had presented, paying however the charges on both sides’”.

This shows that retraction of a betrothal was recognised as permissible to the father or the guardian but whatever was spent on account of the espousal by the father or guardian of the intended bridegroom for the gratification of his own or of the damsel's relation, was to be repaid in full. In the present case, the findings are that the defendant did not spend any amount beyond paying Rs. 250 to the boy and, therefore, he must refund Rs. 2,000 to the plaintiff.

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. This was authoritatively laid down by their Lordships of the Judicial Committee in Peterpermal Chetty. This Privy Council case and a number of English cases were followed by the Madras High Court in P.R Srinivasa Ayyar. It will be noticed that in this Madras case both sides had agreed that such an agreement was unlawful. But in the present case, I an assuming that the agreement was unlawful although neither side put forward the plea in their pleadings or in the evidence that the agreement was unlawful and opposed to public policy and therefore void per se.

Mr. G.C Mukharji's argument that when the plaintiff himself resiles from the contract, he should not be allowed to recover money paid thereunder to the defendant is completely answered by the Privy Council case just referred to and by the English cases referred to by me earlier.

For these reasons, I am of opinion that the appeal must be allowed and there should be a decree in favour of the plaintiff for a sum of Rs. 2,000—the plaintiff cannot recover Rs. 250 for the additional reason that the son has not been made a party to the present suit, in the circumstances, I would direct each party to bear his own costs both in this Court and in the lower appellate court, but the plaintiff would be entitled to costs on the sum of Rs. 2,000 of the trial court. The plaintiff will also get interest at six per cent per annum from the date of the decree, of this Court till realisation.

Ramaswami, J.:— This appeal is by the plaintiff against the appellate decree of the District Judge of Gaya dismissing the suit.

The material facts are not in dispute. Plaintiff had been negotiating for the marriage of his daughter to son of defendant through Babu Rajnikant Sinha, Advocate of Patna. On 19th April, 1942 it was settled that plaintiff would send Rs. 2,449 to the defendant for purchase of bride's ornaments and that at time of tilak he would pay a sum of Rs. 51 besides utensils. It was decided that Sagun and tilak would be performed on 4th May, 1942 and the marriage would be solemnised on 10th May, 1942. There was a condition that the plaintiff would pay a sum of Rs. 250 for the expenses of the bridegroom. In accordance with this agreement the plaintiff made on 22nd April, 1942 an advance payment of Rs. 2,250 to the defendant by a Hundi on the Imperial Bank. But two days later on 24th April, 1942, the plaintiff, altered his mind and wired to the defendant that the marriage will not take place. He requested that money should be refunded. The defendant resisted the claim on the ground that plaintiff was not justified in cancelling the contract. The defendant himself was willing to perform his promise. It was stated that plaintiff had caused disgrace to defendant and was not entitled to recover the amount.

The Subordinate Judge dismissed the suit on the ground

“that the plaintiff did not act according to the contract and defendant could claim damages for suffering and disgrace”.

The District Judge affirmed the Subordinate Judge's decree. He found that the plaintiff had committed default and hence was not entitled to recover the advanced amount.

The sole question for decision in this appeal is whether the plaintiff is entitled to recover the sum of Rs. 2,250 paid to the defendant in pursuance of the con tract.

There is no doubt on the admitted facts of this case that there was in effect, though not in form, an agreement to pay a sum of money to a father in consideration of giving his son in marriage. For the respondent, it was contended that the first term of the contract namely the payment of the sum of Rs. 2,449 to defendant was severable and should be construed as a conditional gift. It is not possible to accept this argument. The first term of the contract is not severable from the rest of the contract since it describes the payment of Rs. 2,449 for purchase of ornaments for the bride referring by implication to girl's marriage. It is a well known rule of construction that the intention of the parties is to be collected from the whole of an agreement. So construed, it is patent that the amount was only in name for “purchase of bride's ornaments”. For in the draft which accompanied the letter plaintiff stated that the money was being paid as part of tulsi patra which respondent admitted was same as “tilak money”. The lower appellate court has correctly said that “the aggregate amount” which appellant had undertaken to pay was nothing but tilak money. If the agreement is examined as a whole, there appears no doubt that the appellant had agreed to pay the aggregate amount to the father in consideration of giving his daughter in marriage.

There are numerous authorities to the effect that such a contract is immoral and opposed to public policy. The reason is that the transaction has a tendency to cause matrimony to be contracted as a mere matter of bargain and sale, that is “a kidnapping into conjugal servitude”. [Pitamber v. Jagjiwan]. In Dholidas v. Fulchand it was held that a contract by which a father was to be paid money in consideration of giving his son or daughter in marriage was against public policy and could not be enforced in a court of law. Tyabji, J. conceded that the Asura form of marriage which was legal among lower castes was nothing more than the purchase of a wife by the husband from the father. But he observed that though the Asura form of marriage when actually performed might be valid, it did not follow that an agreement for such a marriage could be legally enforced. The Bombay case was followed by a Full Bench of the Madras High Court in Venkata Kristnayya v. Lakshmi Narayana. Sir Arnold White, C.J who delivered the opinion of the Full Bench observed that a contract to make payment of money to a father in consideration of marriage was immoral and opposed to public policy under section 23, Contract Act. In Ram Sumran Prasad v. Gobind Das*. J. quoted the Full Bench Madras case with approval. In the Patna case the widowed mother of the girl had agreed to make a gift of some land to the proposed bridegroom who and his father had agreed to the marriage only on this condition. The marriage was performed; the gift of lands was made. The reversioners brought a suit after the widow's death. Jwala Pd. J. held that though the agreement was illegal, the reversioners could no recover as the marriage had been solemnised. In Bakshi v. Nadu Mukherjee, J. relying on I.L.R 13 Madras 84 said that an agreement to pay money to parent of a bride or bridegroom in consideration of their consent to marriage was not immoral or opposed to public policy, if the husband was eligible. But in a subsequent Calcutta case Baldeo Das v. Mahmaya Pd. this statement of the law was expressly dissented from and the Full Bench Madras case I.L.R 32 Madras 185 (which overruled I.L.R 13 Madras 84) was followed.

In this context it is of paramount importance to remember that the Smriti writers have prohibited and declared that such marriages are sales of one's offspring. The precepts of Manu are emphatic.

“Let no father who knows the law receive a gratuity (sulka), however small, for giving his daughter in marriage, since the man who through avarice takes gratuity for that purpose is a seller of his offspring”. Manu, Chapter III, section 51.

“Even the acceptance of a bovine pair by the father of the bride from the bridegroom is designated as a dowry by certain authorities. The acceptance of a dowry, be it costly or be it of insignificant value, constitutes the sale of the girl”. Manu, Chapter III, section 63. Manu forbids a gratuity even in the case of Sudras.

“Even a Sudra ought not to take a nuptial fee, when the gives away his daughter; for he who takes a fee sells his daughter, covering (the transaction by another name)”. Manu, Chapter IX, section 98.

“Nor, indeed, have we heard, even in former creations, of such (a thing as) the convert sale of a daughter for a fixed price, called nuptial fee”. Manu, Chapter IX, section 100.

The question then arises whether the plaintiff is entitled to recover money which was paid under the contract. In other words the question is what right of restitutio in integrum exists as between the parties to an illegal contract. In Harse v. Pearl Life Assurance Co. the Court of Appeal held that no such right exists. In the case of an illegal contract the rights of the parties are governed by special rule formulated in the maxim ex turpi causa non oritur actio. The maxim embodies a special and far-reaching principle; it means that no person can claim any remedy or right on the basis that he has been a party to an illegal transaction whether a contract or otherwise. “This is a contract to tempt a man to transgress the law; to do that which is injurious to the community; it is void by the common law. You shall not stipulate for iniquity: No polluted hand shall touch the pure fountains of justice” [Wilmot L.C.J in Collins v. Blantern.] The consequence is that the right of restitution is excluded in respect of all, acts of performance of a contract void for illegality.

But the principle is subject to an exception. If the law thinks fit, a locus poenitentiae may be allowed to one or both of the parties in consideration of the fact that the illegal purpose of the, contract has not yet been fulfilled. In Taylor v. Bowers Mellish, L.J stated: “If money is paid or goods delivered for an illegal purpose, the person who had so paid the money or delivered the goods may recover them back before the illegal purpose is carried out: but if he waits till the illegal purpose is carried out, or if he seeks to enforce the illegal transaction, in neither case can he maintain an action”. The case to which these words applied was one in which a debtor had made a fictitious assignment of goods in fraud of creditors; the contemplated fraud was not carried out and the debtor desired to recover his goods from one to whom they had been subsequently transferred under a bill of sale; and it was held that he was entitled to do so. But if there is a case of part performance the plaintiff cannot recover. In Kearley v. Thomson, Messrs Thomson a firm of solicitors acting for the petitioner who was creditor of Clarke, a bankrupt, agreed with Kearley, a friend of Clarke, that in consideration of the payment of their costs they would not appear at the public examination of Clarke, nor oppose the order for his discharge. They carried out the first part of the agreement, but before any application was made for Clarke's discharge, Kearley sought to recover the money which he had paid, on the ground that it was consideration for a promise to prevent the course of justice and that the contract was not wholly-carried out. The Court of Appeal held that he could not recover.

These principles have been applied in Indian cases.

In I.L.R 32 Madras 185 the Full Bench held that when the marriage was performed under an illegal contract, the money which had been paid in consideration of the marriage could not be recovered. In I.L.R 22 Bombay 658 the marriage had been performed and the court refused to decree the plaintiff's claim. In I.L.R 5 Patna 648 Jwala Pd. J. followed the decision of the Full Bench and held that the gift to the bride or bridegroom could not be recovered by the donor when once marriage had taken place.

But when the marriage is not performed, there is ample authority in support of the view that the money should be refunded. In Ram Chand Sen v. Audaito Sen a suit was brought to recover Rs. 100 which was alleged to have been paid by the plaintiff to defendant in consideration of the promise by the defendant to give his daughter in marriage to the plaintiff. Defendant had refused to give the daughter in marriage. Defendant resisted the claim on the plea that the agreement was illegal. But Garth, C.J held that the plaintiff was entitled to a decree. In Srinivasa v. Sesha plaintiff had paid defendant Rs. 400 under an agreement for the marriage of defendant's son with plaintiff sister the marriage did not take place whence plaintiff sued for recovery of the money. Defendants contended that plaintiffs had broken the agreement, but even so the High Court held that plaintiff was entitled to recover the amount. In Gulabchand v. Fulbai there was an agreement by which the plaintiff promised to pay Rs. 1,800 to the defendant as consideration for the latter's promise to marry his niece to the plaintiff's son. But before the marriage could take place the plaintiff's son died of plague. Under the agreement the plaintiff had before her son's death paid to the defendant a sum of Rs. 750. Subsequently the plaintiff having brought a suit to recover the sum from the defendant contended that the agreement was illegal and no sum paid under it could be recovered. Scott, C.J held that the plaintiff was entitled to recover the sum from the defendant having regard to the character of the agreement.

This view accords also with old Hindu commentaries. The Mitakshara treats a betrothal as a binding promise. But when there is breach of promise or resilement the texts enjoin that whatever is expended on account of espousals by intended bridegroom or by his father should be repaid in full by affiancer to the bridegroom (see Mitakshara II, XI, 28).

From this review of the authorities it is patent that the plaintiff is entitled to succeed.

I would allow this appeal and direct that plaintiff should get a decree for the amount of Rs. 2,000. Plaintiff cannot get a decree for Rs. 250 which had been paid to the defendant's son as amount has been spent.

The plaintiff will be entitled to costs.

K.D

Appeal allowed.