1. The facts found are as follows:
The defendant Ajudhia Parshad had an elder brother Birj Bihari Lal and a sister Musammat Gendi Bibi. The suit is to recover Rs. 380 cash and the value of goods worth Rs. 186-7-0, advanced to Birj Bihari Lal for the marriage of Musamrnat Gendi. It-has been found that Birj Bihari Lal was in law a minor at the time when the advance was made, and it appears also to be a fact, not now contested, that the cash and goods so advanced were duly applied to the reasonable arid necessary expenses of the marriage. Birj Bihari Lal is dead, and the plaintiff seeks to recover the loan from the family property in the hands of Ajudhia Parshad. 'We were referred on behalf of the plaintiff-appellant to the cases of Vaikuntarn Ammanagar v. Kallapiram Ayyangar 23 M. 512 and another between the same parties reported in the case of Vaikuntam v. Kallipiram 26 M. 497. Here a person legally responsible for the provision of necessary funds for the marriage of a Hindu girl had refused to make the necessary provision, the marriage was performed with the aid of money borrowed for the purpose by the girl's mother. It was held that the latter was entitled to succeed in a suit for the recovery of the money thus expended. It may be conceded that by general principles of Hindu law both Birj Bihari Lal and the defendant Ajudhia Parshad lay under an obligation to provide out of the family property the funds necessary for performing the marriage ceremonies of their sister in a manner suitable to the social position of the family and its pecuniary resources, but the distinction between the present case arid those above referred to is obvious. The decision in the Madras cases turned upon the principle recognised by Section 69 of the Indian Contract Act, and the fact that the mother was a person interested in the performance of the girl's marriage. In the case now before us the plaintiff lent the minor Birj Bihari Lal money for a certain purpose but he neither performed the marriage ceremony himself nor was he a person interested in the performance of the same. He can succeed, if at all, only if virtue of the provisions of Section 68 of the Indian Contract Act. I have referred to the notes on the said section in Cunningham and Shephard's edition of the Act, at pages 219 and 220 of the Ninth Edition. The authors quote from an English case Chappel v. Cooper 13 M. and W. 252 : 13 L.J. Ex. 286, where it is laid down that:
Things necessary are those without which an individual cannot reasonably exist. In the first place, food, raiment, lodging and the like. Again...instruction in art or trade, or intellectual, moral, arid religious information may be a necessary also. Again, as man lives in society, the assistance and attendance of others may be a necessary to his well being. Hence, attendance may be the subject of an infant's contract. Then, the classes being established, the subject-matter and extent of the contract may vary according to the state and condition of the infant himself. But in all these cases, it must first be made out that the class itself is one in which the things furnished are essential to the existence and reasonable advantage and comfort of the infant contractor. Contracts for charitable assistance to others, though highly to be praised, cannot be allowed to be binding because they do not relate to his own personal advantage.
2. The essential difficulty of the present case lies in the application of a principle of law based upon English decisions to the widely different conditions of Indian society. Nor can the principle itself be considered altogether apart from those provisions of Hindu law which bear upon the devolution of property in a Hindu joint family and the duties and liabilities of the members of such family inter se. This became clearly apparent in the course of the argument, when it was urged upon us on behalf of the respondent that the plaintiff could in no case recover anything from Ajudhia Parshad because his remedy (if any) lay against the estate of the minor Birj Bihari Lal to whom the money was advanced, and the family property was now in the hands of Ajudhia Parshad by survivorship, and not by inheritance from Birj Bibari LaL I am satisfied that this argument is adequately met by the rejoinder that the loan was made to Birj Bihari Lal as manager of the joint family, that it was virtually a loan to the family itself, and that Ajudhia Parshad was as much liable as his elder brother for the provision of the necessary expenses of the sister's marriage. But if the question is thus complicated in one of its aspects by considerations arising out of Hindu law, it seems to me that we must be careful to bear in mind the principles of the same law when we come to apply the doctrines laid down in English cases on the subject of 'necessaries' to the position of minors who are members of a Hindu joint family, particularly in a case like the present when it so happened that the family contained no member who had attained legal majority. I think that in all the English cases one essential element in the transaction is that there should be a certain urgency about minor's need. It is not enough that he should benefit by the advance made to him, or that the expenditure should be for purposes entirely proper and reasonable it must be for some purpose the accomplishment of which could not well be postponed without irremediable detriment to the minor himself or to some person whom he was legally bound to support. The same principle underlies those Indian cases (as for instance 'Sham Charan Mal v. Chowdhry Debia Singh Pahraj 21 C. 872 in which money advanced to meet legal expenses where the liberty or estate of the minor was in jeopardy has been held to be recoverable. Looked at from this point of view the age of the girl Musammat Gendi Bibi becomes the decisive factor in the case. I am prepared to hold without serious hesitation that in the case of a family of the caste to which the parties to the present case belong and one holding their position in society, the marriage of a girl of thirteen could not be much longer postponed without serious detriment to her at any rate. It could scarcely have been postponed another couple of years to allow of Birj Bihari Lal's attaining majority. For Musammat Gendi Bibi herself, therefore, it seems clear that the reasonable expenses of her marriage were, at the time when the money was advanced, a 'necessary,' If the lender had taken advantage of his position as a relative (for though only distantly related to Birj Bihari Lal he was descended from the same common ancestor) to perform the marriage ceremonies at his own expense, it seems clear to me that he would have been entitled to recover money thus spent from the estate of the minor brothers who were legally liable to provide it. I am not prepared to hold that any satisfactory distinction can be based upon the mere fact that the necessary cash and other goods were handed over to Birj Bihari Lal and the management of the business left in his hands. Moreover, as regards Birj Behari Lal himself, it can fairly be said that any further postponement of his sister's marriage would have involved him in a considerable degree of social discredit, that its postponement for another two years might have made it difficult to effect the marriage at all, and that the social discredit in that case would have been serious. There was thus an element of urgency about the matter even as regards Birj Bihari Lal himself. On the whole, therefore, I am of opinion that, though the present case is one very near the boundary line, it may fairly be said that the provision of the reasonable expenses for Musammat Gendi Bibi's marriage was, at the time when the loan in question was taken, a matter of necessity for her minor brothers.
3. I would, therefore, accept this appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance.
4. I also am of opinion that the plaintiff is entitled to recover out of the ancestral property in the hands of the defendant the amount of the money advanced by Salig Ram as also the value of the goods supplied by him for the marriage of the defendant's sister Musammat Gendi Bibi. At the time of her marriage Gendi Bibi was of marriageable age and it would have been a disgrace to the family if she had not been married. At the time of her marriage the joint family consisted of Birj Bihari, the defendant Ajudhia Pershad and their sister Gendi Bibi. Musammat Sumitra, the mother of these three persons, had been the certificated guardian of Birj Bihari and Ajudhia Pershad but she died before the marriage of Gendi Bibi. Birj Bihari was the elder of the two brothers and he managed the affairs of the family after the death of Musammat Sumitra. The moneys and goods supplied by Salig Ram were entered in the account books of the family, and it has been found that the sum of Rs. 566-7-9 was provided by Salig Ram for the marriage expenses. The Court of first instance gave a decree for this amount with interest, but upon appeal the learned Judge of the Court of Small Causes at Cawnpore set aside the decree of the Court of first instance and dismissed the plaintiff's suit on the ground that the money advanced by Salig Ram amounted to a simple loan to Birj Bihari and that inasmuch as Brij Behari was a minor at the time of the loan the transaction was void ab initio and not enforceable.
5. It is admitted that both Birj Bihari and Ajudhia Pershad were according to the Hindu Law under a legal obligation to provide for the marriage expenses of their sister. The money was really advanced to both brothers through the elder brother to enable them to discharge a legal liability. It is clear on the authorities that the reasonable expenses of a sister's marriage are chargeable on the family property in the hands of brothers in the same way as the cost of her maintenance see West and Duller 754, Mayne's Hindu Law Edition VI, Section 450 and Tulsha v. Gopal Rai 6 A. 632. The right to such maintenance and expenses does not rest on contract.
6. The liability is created by Hindu law and arises out of the joint relation of the members of the Hindu family. In Vaikuniam Ammanagar v. Kallapiram Ayyangar 23 M. 512 it was held that where an uncle had improperly refused to perform the marriage ceremony of his niece, the daughter of his undivided brother, deceased, the widow of the latter having borrowed money for the purpose and performed the ceremony was entitled to recover the amount expended on the marriage from the uncle. It seems to me that according to Hindu Law Salig Ram, having made the advances whether they were made to his cousins Brij Behari and Ajudhia Pershad, who were under a legal obligation to bear the expenses of their sister's marriage or Birj Bihari as managing member or head of the family, his legal representative is now entitiled to recover the advances so made out of the family property in the hands of the defendant. It is not suggested, I may add, that the expenses of the marriage were Other than reasonable.
7. From another point of view also it seems to me that the plaintiff-appellant is entitled to succeed in his appeal. Under Section 68 of the Indian Contract Act if a person incapable of entering into a contract or any one whom he is legally bound to support, is supplied by another person with necessaries suited to his condition in life the person who has furnished such supplies' is entitled to be reimbursed from the property of such incapable person. Birj Bihari and Ajudhia Parshad were under a legal obligation, not merely to maintain their sister but also to provide for the expenses of her marriage being under age were incapable of entering into a contract. It was as much obligatory upon them to provide for the expenses of their sister's marriage as it is obligatory upon a lunatic to supply his wife and children with necessaries suitable to their; condition in life. If a party supply the wife and children of a lunatic with such necessaries he is entitled under the illustration appended to Section 68 to be reimbursed from the lunatic's property. So here, as it appears to me, Salig Ram, having supplied Birj Bihari and Ajudhia Pershad with what was requisite for the marriage of their sister, is entitled to be reimbursed out of the family property. The term necessaries' is comprehensive and' is not confined to necessaries for the person of the infant himself but may extend to necessary things provided for other members of his family. It would have been open to Musammat Gendi to institute a suit to have her marriage expenses provided out of the family estate, such a suit would have involved the defendant and his brother in unnecessary costs. This has been avoided. In the case of Sham Charan Mal v. Chowdhry Debia Singh 21 C. 872 it was held by Ghose and Gordon, JJ., that money supplied to a minor to provide for his defence in Criminal proceedings pending against him on a charge of dacoity and used by him for that purpose, must be taken to have been advanced for necessaries within the meaning of Section 68 of the Indian Contract Act. The learned Judges in their judgment say that 'the liberty of the minor being at stake we think the money should be taken to have been borrowed for necessaries'. In Chappel v. Cooper 13 M. and W. 252 : 13 L.J. Ex. 286, it was held that an infant widow was bound by her contract for the furnishing of the funeral of her husband who had left no assets. Alderson in his judgment in that case quoted the following words of Lord Bacon: 'If a man under the years of 21 contract for the nursing to his lawful child, this contract is good and shall not be avoided by infancy and no more than if he had contracted for his own aliments or education'. Lord Bacon treated a contract for necessaries to an infant's wife and lawful children as an illustration of the maxim Persona conjuncta acquiparatur interesse propris'. Alderson, B., in this judgment points, out that decent Christian burial was a part of a man's own rights and might be classed as a personal advantage and reasonably necessary to him and then he draws the conclusion that if this be so, the decent Christian burial of a man's wife and lawful children who are persona conjuncta with him is also a personal advantage and reasonably necessary to him and the rule of law applies that he may make a binding contract for it. According to Lord Bacon 'the Law hath so much respect for nature and conjunction of blood that in divers cases it compares and matches nearness of blood with consideration of profit and interest and in some cases allows of it more strongly'. The same principle is recognised by Hindu Law. A marked feature of the law governing the joint Hindu family is the respect and consideration shown to female members of the family. The head of the family is bound to supply maintenance and marriage expenses for the daughters of the family and money advanced to him for such an object may reasonably, I think, be, regarded as money supplied for necessaries within the meaning of Section 68. From either point of view, therefore, from which the question before us may be regarded, the defendant is, in my opinion, liable to discharge the debt contracted for the marriage expenses, of his sister. I would, therefore, allow the. appeal set aside the decree of the lower appellate Court, and restore the decree of the Court of first instance with costs in all Courts including fees in this Court oft the higher scale.
8. I agree with the learned Chief Justice and have nothing to add.
9. The, order of the Court is that the appeal be allowed the decree of the lower appellate Court set aside and, the decree of the Court of first instance restored with costs in all Courts including fees in this Court on the higher scale.