GANPAT Vs. LAHANA

JUDGEMENT

(1.) THE first point raised in this application is that the present suit was not triable by the Court of Small Causes having regard to Article 35(g), Small Cause Courts Act. In the plaint it was alleged that Rs. 100 was advanced, so to speak, as consideration for marriage contract, as well as Rs. 15 for expenses and Re. 1 as a pledge. On behalf of the plaintiff it was further pled that the Rs. 100 were paid, as per custom, with the object of defraying generally the expenses of the pat marriage.

(2.) I have been referred by the pleader for the non-applicant to the decisions in Jagornath v. Radha Sunder [1909] 13 C.W.N. 36 (short notes) and Giris Chandra v. Purna Chandra [1915] 19 C.W.N. to support the position that a claim like the present one for money advanced in respect of a marriage contract is recoverable in the Small Cause Courts. The ratio decidendi of these decisions seems to me to be that the suit is, in essence, one for a mere refund of money advanced, and not for compensation, having reference to Section 73, Contract Act. In Kali Bunker Dass v. Koylash Chunder Dass [1888] 15 Cal. 833, Pigot and Gordon, JJ., held that a suit to recover money spent in feeding relatives, in paying carriage hire and musicians in connexion with a marriage, which fell through, was not cognizable by a Small Cause Court. I concur in this opinion.

(3.) IT has, however, been urged on the strength of the decisions in Dholidas v. Fulchand [1898] 22 Bom. 658, Venkata Kristnayya v. Lakshmi Narayana [1909] 32 Mad. 185 and Devarayan v. Mutturaman [1913] 37 Mad. 393, that the suit did not lie as the payment was contrary to public policy and void under Section 23, Contract Act. These decisions so far support the proposition that a contract by which, their father or their guardian is paid money in consideration of his giving his son or daughter in marriage is against public policy and cannot be enforced in a Court of law. It was, however, pled in the present case on behalf of the applicant that there was a caste custom to make such a payment as we are concerned with, the underlying idea being that the money so paid would be used in meeting the expenses of marriage. I am not, however, prepared to accept the contention offered on behalf of the defendant-applicant in this connexion. It may be that the guardian or parent, to whom such a sum of money had been promised in consideration of his giving his son or daughter in marriage, might not be able to recover the sum so promised on the ground that the agreement is void as opposed to public policy. Here, the position is entirely different. The plaintiff accepted the money in advance, and a suit can in my opinion, lie to recover that money, there having been a breach of the marriage contract : cf Srinivasa v. Sesha [1918] 41 Mad. 197 and Gulabchand v. Fulbai [1909] 33 Bom. 411. I am of opinion, therefore, that the suit in the present suit was not barred on the ground just considered.