MUHAMMAD HUSAIN Vs. MUSAMMAT NUR JAHAN

JUDGEMENT

(1.) In this case, the plaintiff, Musammat Noor Jahan, claimed from the defendants a sum of Rs. 375 with interest by way of damages as arrears of maintenance for three years at toe rate of Rs. 125 a year on the plea that they were bound to pay her the said sum annually under the terms of an agreement. dated April 24th, 1908. The suit has been decreed by both the Courts below, and the defendants come here in second appeal.

(2.) A preliminary objection is taken that no second appeal lies. This point is concluded by authority; in Bhagvantrao v. Ganpatrao 16 B. 267; Saminatha Ayyan v. Mangalathammal 20 M. 29; Amritomoye Dasia v. Bhogiruth Chundra 15 C. 164 and in Baldeo Sahai v. Jumna Kunwar 23 A. 495 : A.W.N. (1901) it was held that suits of similar nature to the present fell within the description of "suits for maintenance" and were not cognizable by a Court of Small Causes. A second appeal, therefore, does lie.

(3.) The first point taken in the defendants memorandum of appeal has no weight. The plaintiff sues to enforce an alleged liability laid on the defendants by a registered instrument duly executed by them. The fact that this particular instrument was not also executed by the plaintiff can be no bar to the suit. Secondly, it is contended that part of the consideration, in return for which the defendants undertook to pay the plaintiff Rs. 125 a year, was a promise by the plaintiff not to marry any one except a son of one or other of the defendants. From this, it is argued that such an agreement, being in restraint of marriage within the meaning of Section 23 of the Indian Contract Act (IX of 1873). renders the entire contract void by reason of the operation of Section 24 of the same Act. I am unable to accede to this contention. The consideration offered by the plaintiff was the relinquishment on her part of certain claims she had by inheritance to property in the hands of the defendants; in return, the latter promised to pay her Rs. 125 yearly by way of maintenance but qualified their own promise by saying that they would not continue the payment in the event of her marrying again unless indeed she were to marry a son of one or. other of themselves, in which case they were willing to continue the payment. I do not infer from this a promise on the part of the plaintiff not to marry again or any restraint on her liberty to do so if she chooses, much less an undertaking on her part to marry any particular person. There is nothing illegal in a covenant to pay a woman a certain annuity "until death or marriage" or "during widow hood". It has been held in England that a covenant to pay a woman an annuity of ?40 for life with a provision for its reduction to ?20 in case of her marriage is not void on the ground of being in restraint of marriage. Webb v. Grace 18 L.J. Ch. 13 : 2 Ph. 710 : 12 Jur. 987. In any case, the defendants have received the consideration promised by the plaintiff and they cannot back out of their contract merely because the plaintiff acquiesced in what was virtually nothing more than a candition imposed by the defendants themselves limiting the continuance of the annuity to the plaintiff s widowhood.