Marayee Ammal and Another vs Nalluswamy by next Friend, Maternal Grand-Father, Ammayappa Gounder

Ramakrishnan, J.—The point for decision in this second appeal is a very brief one. One Marappa had two daughters, Defendants 2 and 3 in

the suit, by his first wife, Kaliammal, the first Defendant. In 1951, he proposed to marry, as his second wife, one Ammayakkal. Under the Madras

Hindu (Bigamy Prevention and Divorce) Act (VI of 1949) such a second marriage is illegal. However, notwithstanding this provision of law,

Marappa is said to have married Ammayakkal, and the Plaintiff was born to them, as a result of this illegal second marriage. Shortly prior to the

marriage, Marappa made a settlement under exhibit A-l of the plaint schedule properties. Under the settlement deed, he agreed to give the

properties to Ammayakkal to be enjoyed by her for life, with vested remainder to the children of their union. Consideration for the entire settlement

deed was the proposed illegal second marriage. Marappa died in 1958. Alleging that the Defendants had wrongfully trespassed on the property,

the Plaintiff filed the suit out of which this second appeal arises, for possession. The trial Court decreed the suit, and Defendants 2 and 3 appealed.

The learned District Judge, Tiruchirappalli in the appeal, found that the consideration for the settlement deed was the second marriage with

Ammayakkal, which was an unlawful consideration. Nevertheless, the learned District Judge was of the opinion that this illegality would render

void only the bequest to Ammayakkal, but the gift over to the Plaintiff on the death of Ammayakkal would be valid, and that this would give the

Plaintiff a vested right in the suit property. Ammayakkal is now dead. Therefore, the lower appellate Court gave a decree to the Plaintiff for

possession with ascertainment of future mesne profits. The present second appeal is filed by Defendants 2 and 3.

The learned District Judge, in appeal, has given the reason for his conclusions thus:

The object of the settlement was to provide for Ammayakkal as the second wife of the settlor. The consideration for the settlement is, the consent

said to have been given by Ammayakkal to marry Marappa Gounder. Both the object and consideration are forbidden by law. Where the

consideration or object of an agreement is forbidden by law, the agreement becomes void. Therefore, the contract by which the Suit property was

conveyed in favour of Ammayakkal has to be struck down as void. The question is, whether the settlement as a whole is liable to be struck down

as void or whether it should fail so far as the transfer in favour of Ammayakkal alone is concerned.

This would show that even assuming that there were two gifts, one to Ammayakkal for the life and the second the gift of the vested reminder to

her children, the consideration for both the gifts was the promise by Ammayakkal to marry Marappa Goundar, and this consideration is illegal

being opposed to the Madras Hindu (Bigamy Prevention and Divorce) Act. It is well-known that u/s 2(d) of the Indian Contract Act, the

consideration may move from the promise or from a third person. In the present case, the consideration for the gift of the vested reminder to the

children moved from Ammayakkal to Marappan, viz., her promise to marry him. So this is a case where, for both the gifts, there was one and the

same consideration which was illegal, the effect of which would be to vitiate both the gifts as having been for an unlawful consideration. Learned

Counsel for the Respondent referred me to the decision in Shirinbai Maneckshaw and Others Vs. Nargacebai J. Motishaw and Others, . In that

case, a Will contained two bequests. The first part of the bequest in the Will was considered to be inoperative, because the donee, who happened

to be the husband of the donor, attested the Will. But in such cases, Section 67 of the Indian Succession Act provides that the bequest will be

void, only so far as it concerns the person so attesting, but it would not render void the rest of the bequest. That principle has no application to the

present case, where the illegal consideration itself covers both the bequests and, therefore, has the effect of rendering them both invalid.

I, therefore, allow the second appeal and dismiss the Plaintiff''s suit. The Appellants will get costs of the second appeal only. No leave.