P R SRINIVASA AIYAR Vs. ASESHA IYER

JUDGEMENT

(1.) Plaintiff, here appellant, sued defendants for Rs. 400, alleged to have been advanced to them out of Rs. 1,100, payable under an agreement as consideration for the marriage of his minor sister with Raman, 1st defendant s son and 2nd defendant s brother. There were three defences, that 29 Ind. Cas. 625 : 43 C. 115 : 21 C. L. J. 537 : 19 C. W. N. 919. there was no cause of action, because 1st defendant entered into the agreement only on behalf of Raman and 2nd defendant was not a party to it at all; 9 Ind. Cas. 161 : 15 C. W. N. 408. the agreement was not broken by defendants; 10 Ind. Cas. 1004 : 10 A. L. J. 159. it was invalid, as being against public policy, and the money, advanced under it, was, therefore, irrecoverable.

(2.) Of these defences, the first was not dealt with either at the trial or by the learned Judge in this Court, though one would have supposed that a decision regarding the existence of a cause of action would have been reached, before enquiry began into the validity of the agreement set up as constituting it or the responsibility for breaking that agreement. It is said that the plea was abandoned. But the trial was under Small Cause Procedure and no issues were framed. Raman was, according to plaintiff s 2nd witness and 1st defendant, of age at the date of the agreement. The latter said that he took away the Rs. 400 paid under it. It is not the case that no evidence to support the defendants pleas was adduced; and it was admitted before us that they were relied on in this Court, although the learned Judge did not mention them. It is not possible in three circumstances to hold that they were abandoned or that defendants cannot support the learned Judge s decision with reference to them, if they can be established and if it is not sustainable on other grounds.

(3.) The learned Subordinate Judge s finding on the second defence, that plaintiff, not defendants, broke the agreement, is one of fact and must be accepted. It is, however, to be observed that, coupled as it was with a plea that the agreement was unlawful and, therefore, unenforceable, it could justify no legal conclusion. For the plea in effect that defendants were absolved by plaintiff s refusal to perform his part from any duty under the agreement was irreconcilable with the contention that such performance would have been in conflict with public policy. Shortly, they could not complain of plaintiff s refusal to do what they alleged would have been wrong.