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Khimji Kuverji Shah Vs. Lalji Karamsi Raghavjl - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 3 of 1940 and Suit No. 670 of 1938
Judge
Reported inAIR1941Bom129; (1941)43BOMLR35
AppellantKhimji Kuverji Shah
RespondentLalji Karamsi Raghavjl
DispositionAppeal dismissed
Excerpt:
hindu law-marriage-contract of marriage-betrothal-agreement of betrothal entered into by mother of minor girl-father entering into agreement on behalf of his major boy--breach of contract-right of minor girl to sue for damages--contract of marriage conditional-suitability of spouse.; amongst hindus a contract of marriage entered into on behalf of a minor by the minor's legal guardian and shown to be for the minor's benefit is enfroceable at the instance of the minor ;where a contract of marriage was entered into between the mother of the plaintiff, who was a minor hindu girl, acting as her gurdian and on her behalf, and the father of the defendant on behalf of the defendant who was a hindu and a major:--;on consideration of the habits and customs prevailing amongst hindus, that the.....john beaumont, c.j.1. this is an appeal from a decision of mr. justice b.j. wadia. the plaintiff sued for damages for breach of a contract of marriage. there was also a claim against defendants nos. 2 and 3 for conspiracy, but as that claim was dismissed and as there is no appeal against that part of the decision, i need not refer to defendants nos. 2 and 3. defendant no. 1 is the person who was to marry the plaintiff, and i will allude to him merely as 'the defendant.'2. the contract as pleaded was made in 1926 by the mother of the plaintiff on behalf of the plaintiff with the defendant's) father on behalf of the defendant, and is alleged to have been ratified by the defendant. at the time of the contract the plaintiff was aged four years, and the defendant was nineteen. it is important.....
Judgment:

John Beaumont, C.J.

1. This is an appeal from a decision of Mr. Justice B.J. Wadia. The plaintiff sued for damages for breach of a contract of marriage. There was also a claim against defendants Nos. 2 and 3 for conspiracy, but as that claim was dismissed and as there is no appeal against that part of the decision, I need not refer to defendants Nos. 2 and 3. Defendant No. 1 is the person who was to marry the plaintiff, and I will allude to him merely as 'the defendant.'

2. The contract as pleaded was made in 1926 by the mother of the plaintiff on behalf of the plaintiff with the defendant's) father on behalf of the defendant, and is alleged to have been ratified by the defendant. At the time of the contract the plaintiff was aged four years, and the defendant was nineteen. It is important to note that the defendant was of age at the time of the contract, because it is well settled that a guardian cannot enter into a personal contract imposing liability on a minor. (See Waghela Rajasanji v. Sheikh Masludin `. If the defendant had been a minor, it would have been necessary to show that he had entered into a contract after attaining majority adopting the contract in suit. However, as he was a major, he could ratify the contract, and there is no doubt that he did ratify the contract;, the letter written by him in 1934, exhibit A, shows this. The contract sued on is not pleaded as specifically as it should have been. No implied terms are pleaded, and clearly there must have been implied terms. To begin with, there is the question as to the date when the marriage was to be performed. The plaintiff being only four years of age at the time of the contract,, it is not suggested that the marriage was to be performed for some years. Since 1929, by virtue of the Sarda Act, it is an offence to celebrate the marriage of a girl under fourteen years of age. It is admitted that it was an implied term of this contract that the marriage should be performed within a reasonable time after the plaintiff attained marriageable age. There is also in Hindu law an implied term in a contract of this sort that when the time arrives for the solemnization of the marriage, the husband, at any rate, shall be suitable as a spouse. The texts on the subject are verses 26 and 27 of Section XI of chapter II of the Mitakshara, which were quoted by this Court in Balubhai Hiralal v. Nanabhai Bhagubhai I.L.R. (1919) 44 Bom. 446: 22 Bom. L.R. 143 s.c.. Verse 26 says:-

For detaining a damsel, after affiancing her, the offender should be fined, and should also make good the expenditure together with interest.

Verse 27 says:-

If there be good cause, he shall not be fined, since retraction is authorized in such a case. The damsel, though betrothed, may be withheld, if a preferable suitor present himself.

3. So that if good cause is shown, the contract may be retracted, and in the case of the bride, she may be withheld, if a preferable suitor presents himself. There may be various grounds justifying the cancellation of the contract, for instance, illness of a serious character, or a defective moral character in one of the parties to the marriage. However, nothing of that sort is suggested in this case. It is admitted that the defendant was at all times a suitable person with whom the plaintiff could contract a marriage.

4. The first question, which calls for decision, is whether a suit of this sort lies. There have been a good many cases in this Court in which claims for breach of promise of a contract of marriage entered into on behalf of minor children have been entertained. In Umed Kika v. Nagindas Narotamdas (1870) 7 B.H.C.R. 122. damages were given to the bridegroom against the father of the bride for breach of promise, though specific performance of the contract of marriage was refused. Mulji Thakersey v. Gomti and Kastur I.L.R. (1887) 11 Bom. 412. was a suit by the bridegroom and his father against the bride and her mother, and damages were given against the mother, but were refused against the bride who was a minor. In Purshotamdas Tribhovandas v. Purshotamdas Mangaldas I.L.R. (1896) 21 Bom. 23. the bridegroom sued the girl's father for damages for breach of promise, the contract having been made by the plaintiff's father when he was a minor, and it was held that he was entitled to recover damages, and that the fact that the girl declined to enter into the marriage did not excuse her father from carrying out his contract. In Abdul Razak v. Mahomed Hussein I.L.R. (1916) 42 Bom. 499: 19 Bom. L.R. 164 s.c.. a Muslim father of the bridegroom sued the father of the bride for damages for breach of his contract to give his daughter in marriage. That was a case of a contract between the two parents, and Mr. Justice Kemp decreed the suit, but held that the measure of damage must be based on the damage suffered by the plaintiff's father, and not on the damage suffered by the prospective bridegroom in the loss of a wife; and if such a suit lies, I agree with the view of Mr. Justice Kemp as to the measure of damage. In this case the bride herself is the plaintiff, so we need not consider the question whether a suit for damages lies by one father against the other for breach of a contract made between them for the marriage of their minor children.

5. In none of those cases was the exact nature of the action considered, but in Rose Fernandes v. Joseph Gonsalves I.L.R. (1924) 48 Bom. 673. which was a suit by the bride, who was a minor at the date of the contract made by her father, against the bridegroom who was a major, the bride claimed damages for breach of the contract, and in that case the nature of the suit was discussed, because it was alleged that if the contract was to be regarded as a contract made by the minor plaintiff, it was void under the decision of the Privy Council in Mohan Bibee v. Dharmodas Ghose I.L.R.(1903) Cal. 539, 5 Bom. L.R. 421 S.C., P.c. and that if the contract was to be regarded as a contract between the parents, the bride not being a party, could not sue upon it. The same questions arise in this case, and we have to consider whether the decision in Rose Fernandes v. Joseph Gonsalves is right. Now, the learned Judge in that case pointed out that it is customary amongst most of the communities in India for parents to arrange marriages between their minor children, often when the children are of very tender age. Amongst Hindus marriage is usually confined to members of the same caste, and sometimes sub-caste, and it may happen that at the date when a husband or wife is required, there may be very few suitable boys or girls available; therefore, a prudent parent makes arrangements for the marriage of his child in plenty of time. Of course, in England different customs prevail. It could not be suggested that in England a parent is entitled to enter into a contract to marry his child, still less to carry the marriage into effect, and I think that in England a suit like the present one would not lie. But the law must adapt itself to the habits and customs of the people governed by such law, unless, of course, those habits or customs are held to be opposed to principles of justice, equity and good conscience. I think it would be wrong in India to hold that this practice, which is so common, of arranging marriages between children who are under age, is contrary to principles of justice, equity and good conscience. It is according to the habits and customs of the people. I should, therefore, be very reluctant to hold that the decision in Rose Fernandes v. Joseph Gonsalves is wrong.

6. The technical rule established in Tweddle v. Atkinson (1861) 1 B. & S. 393., that a stranger to a contract cannot sue upon it, is subject to certain well recognized exceptions, one exception being in favour of a cestui que trust. Where a contract is made by a trustee on behalf of a cestui que trust, it can be enforced in equity by the cestui que trust, and in this country all Courts administer equity. In National Petroleum Company, Ltd. v. Popatlal : AIR1936Bom344 . which was referred to by the learned trial Judge, this Court applied that exception to the case of a contract made by a guardian on behalf of a minor. The contract there was a contract to insure against fire the minor's property, which was subsequently burnt down, and it was held that the minor could sue on the contract and recover the insurance money. No doubt, a parent entering into a contract of betrothal of marriage on behalf of his minor child cannot be said, strictly speaking, to be acting as a trustee, and I think the exception to the rule in Tweddle v. Atkinson, which was acted upon, and perhaps established, in Rose Fernandes v. Joseph Gonsalves, is an exception, which. it may well be, would not be recognized in any other country than India, but I see no reason why it should not be recognized in India, where it is in conformity with the habits and customs of the people.

7. In Khwaja Muhammad Khan v. Husaini Begam I.L.R. (1910) 32 All. 410: 12 Bom. L.R. 638. s.c., p.c. there are observations of their Lordships of the Privy Council, which are very pertinent to the present question. In that case a contract had been entered into by the father of the bride with the bridegroom's father, under which certain moneys were payable to the bride and were made a charge on property, and the Privy Council in considering the application of Tweddle v. Atkinson held that this was a case in which moneys payable to the plaintiff were charged on specific property, and she could in equity enforce the charge. But then their Lordships observed as follows (p. 413):-

Their Lordships desire to observe that in India and among communities circumstanced as the Muhammadans, among whom marriages are contracted for minors by parents and guardians, it might occasion serious injustice if the common-law doctrine was applied to agreements or arrangements entered into in connection with such contracts.

8. The learned trial Judge in Rose Fernandez v. Joseph Gonsalves relied strongly on that observation, and I think rightly so, and in my view Rose Fernandes v. Joseph Gonsalves was correctly decided. It has stood for fourteen years, and I see no reason why we should not follow it.

9. It is an essential condition of the enforceability of such a contract as this that it should be for the benefit of the minor, and I have felt some difficulty as to whether a contract to give in marriage a girl of four years of age must be considered as for her benefit. If one had nothing but the bare contract pleaded, I should say that it could not be so regarded, because it would be a chance whether in ten years' time the choice of the particular husband would prove a wise one. But, then, as I have pointed out, under Hindu law the contract is conditional on the other party being a suitable spouse at the time when the marriage is to be performed, and there being no more suitable husband available. If that is so, and having regard to the importance attached by the Hindu community to marriage, and to the fact that except amongst a very small minority of the educated community very few girls amongst the Hindus remain unmarried, I think that one must hold that a contract to get a girl married, however young she may be at the time of the contract, is, at any rate prima facie, for her benefit. In Rose Fernandes v. Joseph Gonsalves the case was an easier one from that point of view, because the plaintiff was about thirteen years of age at the time of the contract, and the contract was to be performed within two years, so that it was easier to hold that it was for her benefit. On the other hand, there was the difficulty in that case that the parties were not Hindus, but Goan Christians, amongst whom customs may not be the same.

10. In my opinion this suit lies at the instance of the plaintiff. I may mention that since the decree, and since the appeal was filed, the plaintiff has died, and the appeal is prosecuted by her legal representatives; but as she died only after the decree, it does not, in my opinion, affect the cause of action.

11. The defence of the defendant on the merits is this. Shortly before his contract of betrothal, it is admitted that the plaintiff's brother Padamsi had been betrothed to the defendant's sister Jethbai then aged about two years. In 1932 Padamsi had some trouble in a criminal Court, and in the result the defendant and his father declined to marry Jethbai to Padamsi, and after that date the defendant ceased to visit the plaintiff's family and ceased to see the plaintiff, their families being estranged. In 1934, according to exhibit A, the defendant was ready and willing to marry the plaintiff, but the plaintiff's mother said that the plaintiff was too young, as no doubt she was. But in 1936 she was of a suitable age to marry, and the defendant's case is that he was ready and willing to marry her from 1936 down to 1938, but that the plaintiff's mother declined to perform the marriage, unless he would agree to his sister marrying Padamsi, and that he declined to do that because he considered that Padamsi was not a suitable husband for his sister. There is a suggestion also that the mother said in the alternative that he must pay a substantial sum of money to avoid the contract of betrothal. The defendant's case is that this was an unreasonable and improper refusal on the part of the plaintiff's mother, and justified him in repudiating the contract.

12. The breach of contract relied on in the plaint is that the defendant in 1938 married another girl. It may be observed that that is not necessarily a breach, because under Hindu law a man may marry as many wives as he likes, and there is no plea that the contract was that the plaintiff should be the senior or the only wife. However, that objection is not taken by the defendant; no issue was raised as to whether he broke the contract. I think he in effect admitted that he broke the contract if subsisting by remarriage. If he had denied the breach and pleaded that he was ready and willing to perform the contract, he might have been saddled with two wives, and he may have thought that it would be cheaper to pay damages; or it may be that there is a custom in this caste against a second marriage, However, the point has not been made, and the defendant does not dispute that in 1938 by his marriage to another girl he repudiated this contract if then subsisting; his case is that he was justified in doing so by the behaviour of the mother. On the other hand, the mother and her witnesses say that from 1936 onwards, when the girl was of suitable age, they were pressing the defendant to carry out the marriage, and he always put them off, and that there was no justification for his breach of the contract.

13. I may say at once that I think the learned Judge was clearly right in holding that these two betrothals were not dependent one on the other. They were made on different dates and the girls were of different ages, which would mean that the marriages would be performed normally on different dates, and I can see no justification for holding that the one contract was to be terminated by the collapse of the other.

14. The question whether the defendant repudiated the contract, or the plaintiff's mother repudiated it, is a question depending on the oral evidence. We have been through the whole of the notes of evidence, and I must confess that if I had to decide the question as a Court of first instance on the depositions of the witnesses, I should be disposed to say that the defendant's story seems to me a more likely one than the plaintiff's. On the plaintiff's story there seems to be no explanation why the defendant did not carry out the marriage between 1936 and 1938; there is the mere allegation that he would not do so. On the other hand, girls in this community seem to be rare, and it seems to me not improbable that the plaintiff's mother having got a son she was finding it difficult to marry, tried to take advantage of the hold she had over the defendant for the purpose of getting herself out of the difficulty. The defendant called a good deal of evidence, which seems to have been independent, and which certainly supports his case. But the learned Judge, who saw the witnesses in the box, preferred the story of the plaintiff's witnesses to that of the defendant's. In my opinion, it would be contrary to the settled principles on which this Court acts that we should substitute our opinion on the facts based on the written depositions for the opinion of the learned Judge who saw the witnesses in the box. It may be that if we had seen the witnesses in the box, we should have arrived at the same conclusion as he did. A Court of Appeal always attaches a great weight to the opinion of the trial Judge on the credibility of the witnesses called before him. This is not a case in which there are any relevant documents, so that it is not open to us to say that the learned Judge's view of the credibility of the oral evidence is not consistent with the documents. It seems to me impossible for this Court to say that the learned Judge was wrong in the view he took of the oral evidence.

15. That being so, I think that the appeal fails and must be dismissed with costs. One counsel in this Court.

Kania, J.

16. AS the first contention about the maintainability of the suit is important, I desire to state my grounds for the conclusion of this Court.

17. The contract in suit was made by the original plaintiff's mother for the betrothal of the plaintiff to defendant No. 1. The contracting party on the defendant's side actually present at the time was defendant No. l's father. The plaintiff was admittedly of tender age, while defendant No. 1 was about nineteen years old. It was argued on behalf of the appellant that this contract cannot be enforced on behalf of the plaintiff, and the suit was, therefore, not maintainable. Four points appear to arise for consideration. (1) Between whom was this contract made? (2) Are the minors parties to the contract? If not, (3) can they enforce it? (4) Can the contract be enforced against them?

18. Having regard to the decision in Mohori Bibee v. Dharmodas Ghose I.L.R. (1903) Cal. 539: 5 Bom. L.R. 421 s.c., P. . R.7. if any of the contracting parties is a minor, under Section 11 of the Indian Contract Act, the contract is void. It is not voidable as was thought at one time. The facts established are that the contracting parties in this case were clearly the original plaintiff's mother and defendant No. 1 acting through his agent, his father. I say that, because defendant No. 1 had admittedly attained the age of majority. He has accepted the contract, and in 1934 asked for carrying out the same. The authority of his father, therefore, to enter into this contract on his behalf is not disputed. The original plaintiff was not a contracting party. These facts take the contract out of the defect which may attach to it and avoid it under Section 11 of the Indian Contract Act.

19. The next question is whether the minors can enforce it. The decisions, of this Court in Umed Kika v. Nagindas Narotamdas (1870) 7 B.H.C.R. 122, Mutji Tkakersey v. Gomti and Kastur I.L.R. (1887) 11 Bom. 412 and Purshotamdas Tribhovandas v. Purshotamdas Mavgaldas 1896 I.L.R. 21 Bom. 23 show that a contract of betrothal made by the guardian of a minor Hindu was not questioned as enforceable. When the minor brought a suit. against the other contracting party to get his rights declared and enforced, the Court assisted him in doing so. The principle on which it appears that contracts of this kind are considered enforceable at the instance of the minor is that the contract was made on behalf of the minor by his guardian, and if the Court found that it was for his benefit, the Court enforced it. The question whether contracts made between two persons could be enforced at the instance of a third party, who was not a contracting party, has come to be considered both in England and in India. Tweddle v. Atkinson is the recognized authority for holding that a third party to a contract cannot enforce it Exceptions to this rule have also been recognized in favour of beneficiaries, persons claiming interest through the contracting parties, and principals on the footing that the contracts were made on their behalf by their agents. In Khwaja Muhammad Khan v. Husaini Begam I.L.R. 1910 All. 410P.c. an agreement made on behalf of a minor Mahomedan girl by her father, for her marriage with the boy's father, was sought to be enforced by the girl after her marriage and after she had attained majority. One of the terms of the contract was that the father-in-law of the girl was to give her a certain amount after her marriage every month. That was made a charge on the property of the father-in-law. In dealing with the question whether this contract could be enforced at the instance of the girl, who was not a contracting party, their Lordships of the Privy Council held that as there was a charge created on the immoveable property, and the sole beneficiary was the plaintiff, the rule in Tweddle v. Atkinson did not come in her way. They further observed as follows (p. 413):-

Their Lordships desire to observe that in India and among communities circumstanced as the Muhammadans, among whom marriages are contracted for minors by parents and guardians, it might occasion serious injustice if the common-law doctrine was applied to agreements or arrangements entered into in connection with such contracts.

20. Those observations clearly recognize that in India ancillary contracts to the contracts of betrothal are outside the rule in Tweddle v. Atkinson so far as Mahomedans and, I believe, communities similarly situated are concerned. All the more so the rule is inapplicable to the contract of betrothal itself, and stands outside that principle. That view was taken by Mr. Justice Taraporewala in Rose Fernandes v. Joseph Gonvalves I.L.R. (1924) Bom. 673 after a review of all the authorities then brought to his notice and having regard to the customs of the different communities in India. In that case this principle which was recognised as applicable to Hindus and Mahomedans was extended and applied to Goan Christians. That judgment has stood unshaken for fourteen years. The observations of their Lordships of the Privy Council quoted above indicate that the same view had been taken so far back as 1910. I, therefore, think that contracts of betrothal entered into on behalf of minors by their guardians and shown to be for their benefit, are enforceable at the instance of the minors.

21. This is the first case brought to our notice in which a girl had sought to enforce her right against the boy himself. But when an attempt was made to enforce the right against a minor defendant, the claim was rejected. That is shown by the decision in Mulji Thakersy v. Gomti and Kastur. That is, again, in consonance with the recognized rule that a guardian has no right to enter into a personal covenant which could be enforced against the minor. In Waghela Rajsanji v. Sheikh Masuldin (1887) L.R. 4 IndAp 89 and in Maharana Shri Ranmalsingji v. Vadilal Vakhatchand I.L.R. (1894) 20 Bom. 61 this was recognized. It, therefore, appears that while the contract could be enforced against the other contracting party at the instance of the minor, it cannot be enforced against the minor.

22. It was further argued that this contract is not binding, because the mother was not the legal guardian for the purpose of entering into the contract of betrothal. In support of that contention the appellant relied on Shridhar v. Hiralal Vithal I.L.R. (1887) 12 Bom. 480 and on Bai Ramkore v. Jamnadas Mulchand I.L.R. (1912) 37 Bom. 18 In my opinion this contention is unsound. If the father is alive, he is the legal guardian of his minor children. If he is dead, the mother is the legal guardian. She has, therefore, the right to enter into a contract of betrothal on behalf of her minor children. If acting under the authority given to her by law, she attempts to abuse the same, a person otherwise interested in the minor may bring her action to the notice of the Court, and the Court may restrain her from abusing her authority. That, however, does not go against the root principle of the mother having the authority to enter into a contract of this type. The decisions relied upon by the appellant, in my opinion, do not support his contention. Bai Ramkore v. Jamnadas Mulchand clearly indicates that the authority to give in marriage referred to in those decisions is merely confined to the physical act of giving in marriage as a part of the marriage ceremony. Mr. Justice Chandavarkar has in terms stated that the words 'the authority to give in marriage' are only confined to the act of giving in marriage as a part of the marriage ceremony which is called kanyadana. Therefore, the authority of the mother to enter into the contract, provided it is shown that it is for the benefit of the minor, cannot be disputed. For these reasons, I think the contract is binding on the parties and enforceable by the plaintiff against the defendant.

23. I do not propose to go into the details of the evidence on the question whether the defendant was ready and willing tot perform his part of the contract. In his written statement he contended that by reason of the plaintiffs mother failing to celebrate the marriage, in spite of his repeated demands, he treated the contract of betrothal as abandoned on behalf of the plaintiff and married the second girl. He had not contended in his written statement that he had committed no breach of the contract by his second marriage and was ready and willing to stand by the contract of betrothal. As regards the party's readiness and willingness to carry out the contract of betrothal, the learned Judge had the advantage of seeing the witnesses, and in his judgment he has in terms stated that having watched the demeanour of the witnesses he preferred to accept the evidence led on behalf of the plaintiff. The duty of a Court of Appeal in matters of this kind is very clearly pointed out by Lord Wright in Powell and Wife v. Streatham Manor Nursing Home 1935 A.C. 243. where he quotes the words of Lord Kingsdown in Bland v. Ross: The ]ulia (1860) 14 M.P.C. 210 at page 265: -

First it is clear that in an appeal of this character, that is from the decision of a trial judge based on his opinion of the trustworthiness of witnesses whom he has seen, the Court of Appeal ' must, in order to reverse, not merely entertain doubts whether the decision below is right, but be convinced that it is wrong.

24. Lord Wright in Powell and Wife v. Streatham Manor Nursing Home further observed as follows (p. 267):-

The problem in truth only arises in cases where the Judge has found crucial facts on his impression of the witnesses: many, perhaps most cases, turn on inferences from facts which are not in doubt, or on documents: in all such cases the appellate Court is in as good a position to decide as the trial judge. But where the evidence is conflicting and the issue is one of fact depending on evidence, any judge who has had experience of trying cases with witnesses cannot fail to realize the truth of what Lord Summer saya: as the evidence proceeds through examination, cross-examination and re-examination the judge is gradually imbibing almost instinctively, but in fact as a result of close attention and of long experience, an impression of the personality of the witness and of his trustworthiness and of the accuracy of his observation and memory or the reverse.

25. A decision arrived at on a consideration of the oral evidence in this way cannot be lightly differed from, and it is not open to this Court to consider the evidence in print before it and find out whether it would have come to the same conclusion as the learned trial Judge had. In view of the clear and emphatic opinion of the learned Judge about the credibility of the witnesses, I see no reason to differ from his conclusion.

26. I agree that the appeal should be dismissed with costs.


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