MUSAMMAT SONPHULA KUER Vs. GANSURI

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the plaintiff-appellant for recovery of. Rs. 500 principal and Rs. 65 as interest from the defendants said to have been advanced by her to them as a consideration for one of the defendants, namely Hitp Singhi arranging the marriage of his sister's daughter with her (plaintiff s) brother, which he failed to do. It appears that the defendant Hito Singh was prosecuted for cheating in respect of this transaction and was convicted and sentenced to pay a fine of Rs. 200 out of which Rs. 150 was awarded as compensation to the plaintiff. The defence was a total denial of the plaintiff's case. It was pleaded that no money was advanced by the plaintiff to the defendants. Both the Courts below have held that the plaintiff paid Rs. 500 to Hito Singh for the marriage. They exonerated defendant No. 2. Both of them, however, dismissed the suit holding that as the contract was opposed to public policy, the plaintiff was not entitled to recover any amount from the defendant Hito Singh.

(2.) The lower Appellate Court has held that the girl was not under the guardianship of Hito Singh but that of her father and therefore, Hito Singh was paid the money not as consideration for marriage but as consideration of his influencing the girl's father to perform this marriage with the plaintiff's brother who was of advanced age. In my opinion, the provisions of Section 65, Contract Act, are applicable to this case. If the contract was void or voidable, the benefit received by Hito Singh has to be refunded by him to the plaintiff. It is true that in such cases the promisee cannot recover the money promised, but it does not follow that the money paid for the promise not performed cannot be recovered. It can be recovered unless it was paid for immoral or criminal purpose.

(3.) Reliance was placed on behalf of the respondents on the decision of this Court in Raghubar Das V/s. Nataber Singh 51 Ind. Cas. 280 51 Ind. Cas. 280 : A.I.R. 1919 Pat. 316 : 4 P.L.J. 542. In that case the money, the refund of which was sought, was paid to a priest so that he may influence a certain gentleman to adopt a particular boy. Sir Dawson Miller, C.J., who gave the judgment of the Court, held that the transaction was of such a nature that the Court would have nothing to do with it and would not help the man who had advanced the money to get its refund. Agreements, like this, as has been held in several cases, are of two kinds : one is so immoral, obnoxious and repulsive that the Courts will have nothing to do with it; others are of such a nature that though they are not enforceable but the refund of the benefit received by a party can be decreed. Promise to procure girls for marriages by means not unlawful comes in this category. Mookerjee, J. of the Calcutta High Court in Bakslii Dis V/s. Nadu Das 1 C.L.J. 261, laid down 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 any sum actually paid pursuant to the agreement, if the contract is broken and the marriage does not take place.