SYED SHAH NASIHUDDIN Vs. SYED SHAH SALIHUDDIN

JUDGEMENT

(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/- 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/- 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/- 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 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 defendant's 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: