Das, J. -
(1.) This is an appeal under the Letters Patent by the pltf. from a decision of Shearer, J. reversing the decision of the Cts. below in a suit for recovery of money which the applt. had paid to resps. 1 & 2 in the following circumstances. The applt. had entered into an agreement with resps. 1 & 2 by which the latter had agreed that the former's daughter, who was then a minor, would be married to reap. 3, who was then the minor son of resp. l. Resp. 2 was the adult son of resp. 1 & brother of resp. 3. The agreement was that the applt. would pay a sum of Rs. 1001 & would also give silver & brass utensils to the value of Rs. 152. The tilak ceremony was performed at Aurangabad, where the resps. resided, & the money was paid partly before & partly at that time. Soon after the performance of the ceremony, resp. 3 had some sort of a fit, which led the applt. to make an enquiry with the result that it was found that the bridegroom was an epileptic subject. The applt. then broke off the marriage & demanded back the sum of Rs. 1152 which he had paid to resps. 1 & 2. The Cts. below held that the applt. was entitled to a decree for a sum of Rs. 909-6-9, excluding the amount which had been spent on the tilak ceremony. The final Ct. of fact modified the decree of the learned Munsif by directing that the decree would be against resps. 1 & 2 alone & not against resp. 3. Resps. l & 2 appealed to this Ct., & Shearer, J. allowed the appeal, holding that the agreement between the applt. & the major resps. was an agreement only, a mere nudum pactum, & not a contract, & further, holding that if the tilak was a conditional gift, then the applt. was not entitled to recovery of the money inasmuch as the marriage did not take place on account of his own default.
(2.) The questions which have been urged before us were considered by a Bench of this Ct. in a very recent decision which has not yet been reported: Dharnidhar v. Kanhji Sahay, S. A. No. 1409 of 1946 : A.I.R. (36) 1949 Pat. 250). In my opinion, that decision covers the present case & relieves us of the duty of a fresh examination of the case law on the subject. Two questions arose for decision in that case: firstly, whether an agreement to make a payment to a father in consideration of the marriage of his son or daughter is illegal & against public policy, & therefore, hit by Section 23, Contract Act, & secondly, whether the money paid under such an agreement can be recovered after the contract had been resiled from by the pltf. himself. Manohar Lall J. referred to the decisions in Bakshi Das v. Nadu Das, 1 C. L. J. 261; Kristnayya v. Lakshmi Narayana, 32 Mad. 185 : (3 I. C. 554); Ramsumaran Prasad v. Gobinda Das, 5 Pat. 646 : (A. I. R. (13) 1926 Pat. 582) & a large number of other decisions on the subject, & held that in the case before him it had not been proved that the contract was immoral or illegal. Ramaswami J. the other member of the Bench, was inclined to hold that the contract was opposed to public policy, & therefore, void. Both the Judges, however, answered the second question in the affirmative. Manohar Lall J. expressed himself as follows:
"Let me assume, however, that the contract was illegal per se & therefore ab initio void. Even on this supposition the deft. cannot retain the amount which he has received from the pltf. because the pltf. in suing to recover possession of his Rs. 2250 is not carrying out the illegal transaction but is seeking to put himself & the deft. as far as possible in the same position as they were before that transaction was determined upon, & it is the deft. who is relying upon the illegal contract & is seeking to make title to the money through & by means of it." Reference was made to the decision in Petherpermal Chetty v. Muniandiservai, 35 I. A. 98: (35 Cal. 551 P. C.) & other decisions. It was further observed that although a Ct. 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 the sum actually paid, pursuant to the agreement, if the contract is broken & the marriage does not take place. It was observed that the Ct. would read an implied condition in the contract that the money would be returned if the marriage does not take place. Ramaswami J. also considered the question & stated that when the marriage is not performed there is ample authority in support of the view that the money should be refunded. Learned counsel for the resps. had contended before us that the agreement was ab initio void, as it was immoral & against public policy. It is, I think, unnecessary in this appeal to decide the question whether a contract or agreement for payment of money to a father in consideration of the marriage of his son or daughter is immoral or against public policy, & therefore, hit by Section 23, Contract Act. Assuming that the agreement or contract was invalid, the question still remains whether the applt. is entitled to get back the money when the marriage has not been performed. That question has been authoritatively answered by a Bench of this Ct. & it is not necessary to examine in detail the cases which have already been examined & referred to in that decision. Learned counsel for the resps. has sought to distinguish that decision on the ground that the money in that case was paid for purchasing ornaments for the bride, & therefore, the claim of the pltf. in that case could be treated as a suit for recovery of money had & received. It appears, however, from that decision that what was found was that the pltf. the father of the girl, had paid Rs. 2250 to the deft. in order that the latter might consent to the marriage of his son with the pltf.'s daughter. The decision was, therefore, based on an agreement to make a payment to the father of the bridegroom, so that he might consent to the marriage of his son with the pltf.'s daughter. On that basis it was decided that even if the contract was illegal per se & therefore, ab initio void, the pltf. was still entitled to get back the money when the marriage was not performed. I think the same principle would apply in the present case. The payment was made by the applt. to the two major resps. in consideration of their consenting to the marriage of resp. 3 with the applt.'s daughter. The Cts. below have concurrently found that the applt. was justified in breaking off the marriage on the ground that resp. 3 was subject to epileptic fits. The present case is even stronger than the case in Dharanidhar v. Kanhji Sahay, S. A. No. 1409 of 1946 : (A. I R. (36) 1949 Pat. 250). In that case the pltf. had disclosed no grounds why the marriage was broken off. In the case before us it has been found by the Cts. below that the applt. was justified in breaking off the marriage. That being the position, the applt. is clearly entitled to the money which had been paid to the two major resps.
(3.) Learned counsel for the resps. has also contended before us that there has been a part performance of the contract, & in view of such part performance the money cannot be returned. He has relied on Kearley v. Thomson, (1890) 24 Q.B.D. 742 : (59 L. J. Q. B. 288). I am unable to appreciate this argument. The money was paid for the marriage & no marriage has been performed. It is beyond any dispute that the performance of the tilak ceremony is no part of the performance of a marriage. The claim of the applt. cannot, in my opinion, be resisted on the principle of part performance.;