SAROJ BANDHU BHADURI Vs. JNANADA SUNDARI DEBYA

JUDGEMENT

(1.) This appeal is brought under the Letters Patent from the decision of Mukerji, J., who has granted leave to appeal from the decree made by him on second appeal, Defendant 1 is the appellant before us, the suit having been decreed by the trial Court against both defendants and this decree having been upheld by the learned Subordinate Judge and by Mukerji, J. The plaintiff is the widowed daughter of one Dina Bandhu Bhaduri, now deceased, and the defendants are his two sons. She sued for arrears of the monthly allowance due to her under an instrument which is called a mashahara patra executed in her favour by Dina Bandhu in 1312 B. S. By that instrument, which is addressed to the plaintiff, he purported to make the provision that yon are to get an allowance at the rate of Rs. 10 from my estate month by month...from the month of Aswin 1312 B.S. as long as you live and he charged certain specific immovable property with the payment of the said allowance. The question before Us has reference to the concluding clause of the instrument which the learned Judge in his judgment has translated as follows: You shall not be entitled to allow the allowance so fixed to remain in arrear for more than one year. As soon as it is in arrear for one year you will realize the same by suit. You shall not be able instead of doing so to institute a suit for realizing arrears for two or thr6e years together.

(2.) The arrears sued for and decreed extended over four years between 1328 and 1333 B. S. The first question which arises upon the clause is whether it is a mere piece of advice given by the father to the daughter for her benefit or is to be construed as a disability or restriction imposed upon her. For the purpose of answering this question we directed a translation of the whole document which is in Bengali to be made by an official translator of this Court. Whether we proceed upon that or upon the learned Judge's translation of the clause, I think it must be taken as intending to impose upon the grantee a restriction. On that view all three Courts have held the restriction void. The Contract Act by Section 28 provides: Every agreement by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent.

(3.) The second question would therefore appear to be whether the mashahra patra or deed of monthly allowance is an agreement" and a contract" within the meaning of the Act. This indeed is the only difficulty in the case and must be considered in the light of the definitions given in Section 2 which are to be applied "unless a contrary intention appears from the context." From Clauses (e) and (h), Section 2, it appears that an agreement is merely a promise and that a contract is merely an agreement enforceable by law. From Clause (b) we learn that a promise is merely an accepted proposal. Hence it would seem necessary to inquire whether this deed of monthly allowance expresses an accepted proposal. This in turn-re-salves itself into the questions : (a) whether the father was signifying to the daughter his willingness to provide her with a monthly allowance with a view to obtaining her assent and (b) whether the daughter has signified her assent. T. think these questions should be answered in the affirmative. But as it is not easy to believe that anyone who did not know what a "promise" was would find himself much assisted by this analysis; and as the definition of proposal" in Clause (a) which is the basis of the section is a weak support to a heavy superstructure, it is advisable to examine further. When definitions are given of common English words like promise" or "agreement" it will constantly happen that the words are used in their common English sense without attention to the definition. It is quite clear from theAct that consideration is not an element whose presence is necessary to constitute an "agreement." By Clause (1), Section 25, an agreement made without consideration is not void if it is expressed in a registered document and is made on account of natural love and affection between parties standing in a near relation to each other. If the mashahara patra is an instrument of this character then it clearly attracts the provisions of Section 28. What other character can be attributed to it ? The learned Judge has observed that it does not express a "gift actually made" within the meaning of Expl. 1. Had the instrument been signed, sealed and delivered, I think that at Common law it would be properly sued upon as a covenant. The plaintiff's cause of action would be the promise made by Dina Banhhu on behalf of himself, his heirs, executors and administrators and none the less so that performance of the promise had been secured by the grant of a charge. Unless the instrument before us can be regarded as a transfer of existing property so as to satisfy Section 122, T. P. Act, I do not see how it can be a "gift actually made" within the meaning of Section 25, Contract Act. As there is no question of consideration in the present case and no difficulty as regards assent by the daughter it seems to me that it makes no difference whether we use the word "gift" or the word grant" which has a wider connotation. The question is whether the plaintiff can succeed upon a promise or can only rely upon a completed transfer independently of promise. The learned advocate for the appellant cited Jatindra Mohan V/s. Ghanshayam A. I. R.1923 Cal 27 and the cases therein mentioned. He contended that the mashahara-patra is a grant of a "corody," a term which was apparently introduced by Colobrook to translate the word "nibandha" which means what is settled or a settlement: c. f. Sarkar's Hindu Law, Edn. 6, pp. 315 and 853. In that view he relied upon the observation of Mookerjee, ,J. that the substance of the matter is that a grant of this character is a right of property, and it is an incorporeal right, the test of validity in each case is whether, under the circumstances the donor has sufficiently indicated an intention that the transfer should take effect as ,a corody and with that intention has done all that is practicable by way of transferring such indicia of property as may be in existence.