Musammat Sonphula Kuer vs Gansuri and Others

Mohammad Noor, J.—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.

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.

Reliance was placed on behalf of the respondents on the decision of this Court in Raghubar Das v. Nataber Singh 51 Ind. Cas. 280 : 51 Ind. Cas. 280 : AIR 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. 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.

In another case the same learned Judge observed as follows :

We are not unmindful that there are exceptions to the general rule that money paid or personal property transferred in accordance with the terms of an illegal contract cannot be recovered, notwithstanding the other party refuses to affirm his part of the agreement. It is plain that although where money has been paid under an unlawful agreement, but nothing else done in the performance of it, the money may be recovered back; yet this exception will not be allowed if the agreement is actually criminal or immoral: Ledu v. Hira Lal Bose 21 C.L.J. 537 : 29 Ind. Cas. 625 : AIR 1916 Cal. 266 : 430 115 : 19 C.W.N. 919."

In this case the arrangement between the plaintiff and Hito Singh for the marriage of the former''s brother with the latter''s niece cannot be said either to be immoral or criminal. Hito Singh though not the actual guardian of the girl, for whose marriage according to the findings of the Courts below, he received the money was in a position to bring about that marriage. The only objection to this marriage is the disparity between the ages of the plaintiff''s brother and the girl. Marriage between a man fairly advanced in age and a young girl may be objectionable but they do take place with the approval of those who are interested in the welfare of the girls. This case to my mind is similar to the case in Bhan Singh v. Kaka Singh AIR 1933 Lah. 849 : 149 Ind. Cas. 1028 : 6 R.L. 784. In that case the defendant offered to procure a Tat girl for the son of the plaintiff, who paid him Rs. 2,000 in cash but later on, it was discovered that the girl who was given out to be a Jat was a sweeper by oaste. Tek Chand, J., held that under the circumstances the plaintiff was entitled to get a refund of the money. In this case also, it appears on the finding that Hito Singh in fact never wanted to have a marriage between the plaintiff''s brother and the girl in question. It was a case of pure swindling. Under the circumstances I think the plaintiff is entitled to get a refund.

It appears that out of the fine which was imposed upon Hito Singh, Rs. 150 was paid to the plaintiff as compensation, and I think that the sum must be deducted from the amount of Rs. 500 which has been found to have been paid by the plaintiff to him. Hito Singh died during the pendency of the appeal before the lower Appellate Court and the respondents, Ganouri Singh and others, have been substituted to represent Hito Singh in spite of their protest that they were not the heirs of the deceased Hito Singh. I set aside the decrees of the Courts below and decree the plaintiff''s suit for a sum of Rs. 350 only with half the costs incurred by the plaintiff throughout. The decretal amount including the costs will be realizable only from the assets of Hito Singh, if any be found, and the added respondents or their personal properties will not be liable for it.