Somayya, J. -
(1.) BOTH the Courts have repelled the various defences raised by the first defendant appellant who executed a promissory note Ex. A promising to pay to the plaintiff's father a sum of Rs. 2,500 with interest at six per cent per annum. Several defences were raised. The first is that the promissory note is unenforceable as being one executed for a purpose opposed to public policy. The second is that the amount covered by the promissory note was really intended for the sole benefit of the ninth defendant who is the second wife of the plaintiff's father and that therefore the plaintiff is not entitled to sue. The first point which is really the more important of the two was elaborately discussed at the Bar and Mr. Ramakrishna Ayyar, learned Counsel for the appellant, argues that there is something against public policy in the case of a promise to pay to the bridegroom (the plaintiff's father) some amount in consideration of his marrying the promisor's daughter. The document may be referred to before proceeding with the discussion of the question of law. The material portion of Ex. A runs thus:
Rupees two thousand five hundred only. On demand I (Salliyal Kotakkat Manakkal Narayanan Nambudiri, son of Perumbalath Sivaraman Nambudiri Nethirimangalam amsam and desam Walluvanad taluk), hereby promise to pay Narayanan Nambudiri.. or order, the aforesaid amount together with interest thereon at the rate of eight annas for Rs. 100 per mensem. The aforesaid consideration amount of Rs. 2,500 has been received and satisfied (by me) the same having been adjusted towards the amount of Rs. 2500, due to Charavur (you) for your having married my daughter Savitri Kanyake.
The document expressly says that the consideration amount of Rs. 2,500 was adjusted towards the amount due to the promisee for his having married the promisor's daughter. It has been found by the appellate Judge and the Judge states that it was conceded before him by both the parties - -that among the Nambudiris there is a custom of making presents by the bride's party to the bridegroom or to his illom. I do not see why the learned Judge should have relied on the custom obtaining among the Nambudiris as though making presents to the bridegroom is confined to them. The practice of making presents to the bridegroom is prevalent in every community among the Hindus. The texts of Hindu law enjoin gifts to the bridegroom on the occasion of marriages.
(2.) MR . Ramakrishna Aiyar says that though a present made to a bride or bridegroom at the time of the marriage may be valid, a promise to pay in future a particular sum in consideration of the promisee marrying the son or daughter of the promisor is merely in the nature of a promise to make a gift and is therefore unenforceable. He also urges that the transaction is opposed to public policy. He bases his argument on the decisions which have laid down that marriage brocage contracts are opposed to public policy and hence unenforceable. Reliance was placed on the decision of this Court in Venkatakrishnayya v. Lakshminarayana, (1908) 18 M.L.J. 405 :, I.L.R. 32 Mad. 185 and of the Bombay High Court in Dholidas Ishwar v. Fulchand Chagan, I.L.R. (1897) Bom. 658. These decisions really hit at contracts made for the benefit of third parties be they parents of the bride or bridegroom or third parties. A promise to pay such persons some consideration for bringing about a marriage is illegal, particularly in the case of the parents and guardians of the bride or bridegroom whose duty it is to select the best match possible for the daughter or son. If they are allowed to receive some amount as an inducement to give the girl in marriage or to accept a girl in marriage, there will be a conflict between their duty to the son or daughter and their interest to secure a benefit to themselves. Even in such a case when a payment is actually made and the marriage is brought about, the money so paid cannot be recovered. But it has been held that if there is a bare promise to pay some money to the bride's parents or bridegroom's parents not followed up by actual payment, the promise cannot be enforced by the promisee - -as the consideration is opposed to public policy and hence illegal. But these questions are not relevant to a consideration of the enforceability of a promise to settle some property or pay some amount in consideration of his or her marrying the daughter or the son of the promisor. Numerous cases of this kind must have occurred; but there is not a single decision brought to my notice where it has been held that a promise to pay a particular sum of money or to settle some property on a bride or bridegroom in consideration of her or his marrying the son or daughter of the promisor is invalid. Some observations in certain decisions are relied on but on an examination of those decisions it turns out that really those observations do not support the argument of learned Counsel for the appellant. The case relied on as containing observations most in favour of the appellant is Ram Sumran Prasad v. Govind Das, I.L.R. (1926) Pat. 646. One Banarsi Prasad left property of considerable value leaving a widow and an only daughter. The widow attempted to get her ten year old daughter married and her relations sought alliance with the defendant. The defendant and his relations raised some objections on the score of the lady living at a very great distance from them. There was an offer on the part of the widow's relations who went to settle the match that the mother would settle property worth rupees fifty thousands on the defendant if he married the girl. Thereupon the defendant and his relations agreed to the proposed alliance. The marriage was celebrated and it was said that at the time of the marriage the mother also announced the gift. Two years later she actually executed a deed of gift and got it registered. The properties of which she was in possession yielded more than Rs. 50,000 a year and the properties that were gifted were of a comparatively trifling value fetching only Rs. 1,200 or 1,300 net per year. Unfortunately both the daughter and her sons died during the lifetime of the widow. After the death of the widow, the reversioners brought the suit challenging the validity of the gift. Various questions were raised such as whether a widow can make a gift of immovable property belonging to the husband, but we are not concerned with those questions. The learned Judges held that there was a promise on the part of the widow to make a gift of immovable properties worth Rs. 50,000 to the defendant in consideration of his marrying the daughter and that the promise was valid and enforceable. Having regard to the fact that the promise was carried out by a registered gift deed, they also held that the property could not be recovered even by the widow and much less by the reversioners. A detailed examination of this judgment shows to my mind that far from helping the appellant it is really against him. I will presently deal with the passage where the observations relied upon occur. At page 670 they say this:
It is clear from the evidence that the offer was voluntarily made on behalf of the lady that gift of immovable property would be made at the time of the marriage and that there was no pressure brought to bear upon her. It may be that but for this offer the bridegroom's party would not have agreed to the marriage.
Then dealing with the contention raised on behalf of the plaintiffs that the agreement was in the nature of a marriage brocage contract and was as such immoral and opposed to public policy, the Judges said this:
This is a prohibition against the father taking gratuity for giving his daughter, which amounts to selling her... But Manu does not seem to prohibit the settlement of a nuptial gift on the bride or bridegroom at the time of the marriage. In practice the receiving of a gift by the bride's parents or relations at any time in connection with the marriage is not permissible; but gifts by the bride's parents to the bridegroom and his relations is not considered to be bad and is in vogue....On the other hand the Hindu law requires gifts to be made to the bride and the bridegroom during marriage and without such a gift the marriage is not considered to be properly solemnised and performed.
Then they refer to the decision in Venkatakrishnayya v. Lakshminarayana, (1908) 18 M.L.J. 405 :, I.L.R. 32 Mad. 185 and Dholidas Ishvar v. Fulchand Chhagan, I.L.R. (1897) Bom. 658 in both of which the promise that was sought to be enforced was one made to the father or guardian of the boy or girl and not a case of a promise to settle some property or make a gift to the bride or bridegroom. Then the learned Judges continued thus:
The prohibition in the text of Manu is against receiving a gift by the father of the girl or her relations, through avarice or greed which amounts to selling the girl.
Then comes the passage which is relied on by Mr. Ramakrishna Aiyar:
But the gift actually made whether to the bride, bridegroom or the father of the bridegroom by the bride's parents cannot be recovered back when once the marriage is solemnised, though it may not be enforced in a suit.
In support of this they refer to the Venkatakrishnayya v. Lakshminarayana, (1908) 18 M.L.J. 405 :, I.L.R. 32 Mad. 185 and Jagadiswar Prasad v. Sheo Baksh Rai, I.L.R. (1926) Pat. 646:
In other words a suit may not lie to recover the promised dowry, but when once the dowry is paid as a consideration for the marriage and the marriage is performed, the dowry cannot be recovered back.
Here the word dowry used is found on a reference to their discussion at page 672 to refer to the gratuity which is received by the father for giving his daughter in marriage. This is not to be confused with the dowry which is given to the bride or the corresponding provision made for the son -in -law. The extract from Manu set out at page 672 runs thus:
Let no father who knows the law receive a gratuity (sulka) however small, for giving his daughter in marriage, since the man who through avarice takes gratuity for that purpose is a seller of his offspring.
It is this that is referred to as dowry in the subsequent passage in that page and in later passages. Here it will be observed that the learned Judge referred to a case of a gift actually made to the bride or bridegroom or father of the bridegroom by the bride's parents and stated that what was gifted could not be recovered once the marriage was solemnised. Then it is said no doubt it will not be enforced in a suit. This observation I think must be confined to cases of promises made in favour of the father of the bridegroom. The decisions in Venkatakrishnayya v. Lakshminarayana, (1908) 18 M.L.J. 405 :, I.L.R. 32 Mad. 185 and Jagadiswar Prasad v. Sheo Baksh Rai, (1919) Ind.Cas. 856 do not deal with cases of promise made to settle some property in favour of the bride or bridegroom. They are both cases of promises made to the father of the bride or bridegroom or to third parties. It would have been more accurate to confine the non -enforceability of a contract to cases of promise made in favour of the parents or third parties but the whole discussion shows that they considered the widow's promise in that case to make a gift to the bridegroom at the time of the marriage was binding upon her. They made this very pertinent observation at page 674:
If the lady had not agreed to give the property in question to the defendant, his father and Ors who were in charge of the marriage would not have agreed to the marriage and the marriage would not have taken place. Mst. Jainti Kumari herself was anxious, considering the position of the family, the fitness of the bridegroom and the former connection with the uncle of the bridegroom through her sister, to have the marriage of her daughter settled with the defendant. Her wishes would not have been fulfilled at all if she had not promised to make the gift in question.
This shows that far from holding that a promise to make a gift in consideration of the bridegroom agreeing to marry the daughter of the promisor is invalid, they were inclined to take the view that it was valid but that question did not directly arise because the promise was subsequently followed up by an actual gift announced at the time of the marriage and by the execution of a registered instrument of gift two years after the marriage.
(3.) THE next decision relied on is Venkatakrishnayya v. Lakshminarayana, (1908) 18 M.L.J. 405 :, I.L.R. 32 Mad. 185. The question referred to the Full Bench in the above case was whether a contract to make a payment to the father in consideration of his giving his daughter in marriage is to be regarded as immoral or opposed to public policy within the meaning of Section 23 of the Indian Contract Act. The Full Bench held that such a contract was immoral and opposed to public policy. I have not been referred to any passage in that judgment which has a bearing on the question whether a promise to make a gift in favour of the bridegroom is or is not unenforceable by him. The Full Bench dealt only with a case where it was a promise made to the father to induce him to give the girl in marriage. As pointed out already it is the duty of the father to select the best possible boy and if he is allowed to enforce a contract of the kind in question it would come into conflict with his duty which he owes to the daughter and hence such a contract is opposed to public policy and illegal.;