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Maheswar Das and ors. Vs. Sakhi Dei - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 319 of 1974
Judge
Reported inAIR1978Ori84; 45(1978)CLT116
ActsContract Act, 1872 - Sections 23 and 24; Specific Relief Act, 1963 - Sections 34
AppellantMaheswar Das and ors.
RespondentSakhi Dei
Appellant AdvocateM.N. Das, Adv.
Respondent AdvocateS. Jena, Adv.
DispositionAppeal dismissed
Cases ReferredRam Jash Agarwalla v. Chand Mandal
Excerpt:
.....v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - for want of better words lord atkin describes that something done contrary to public policy is a harmful thing, but the doctrine is extended not only to harmful cases but also to harmful tendencies; this doctrine of public policy is only a branch of common law, and, just like any other branch of common law, it is governed by precedents......document. there is no force in the contention of appellants' counsel that the fact that the entire sale consideration was not for the marriage expenses was a feature which should have been duly taken into account. this runs counter to the very provision of section 24 of the contract act.reliance was placed by appellants' counsel on the decision of the supreme court in the case of gherulal parakh v. mahadeodas maiya, air 1959 sc 731 for the contention that section 23 of the contract act had no application to the facts of the case. the supreme court was considering if a wagering contract was forbidden by law and for that purpose it examined as to which clause of section 23 of the contract act applied to a wagering contract. the court indicated what the term 'public policy' meant by saying.....
Judgment:

R.N. Misra, J.

1. This appeal by the defendants in a suit for declaration of plaintiff's title in regard to the C schedule property and for further declaration that the sale deed dated 5-10-1966 (Ext. K) is void, illegal and not binding against the plaintiff, is carried against the reversing judgment and decree of the learned Additional District Judge of Cuttack.

2. Plaintiff filed the suit on 18-11-1968 claiming that Sudarsan was the common ancestor of the plaintiff and defendants 3 to 6. The third defendant was the only son of Sudarsan and Subasi--the wife of defendant No. 7 was also the lone daughter of Sudarsan. Plaintiff is the only daughter through Jhumani, the first wife of defendant No. 3 while defendants 4 to 6 are the three sons of defendant No. 3 through his second wife Indira. The B schedule property belonged to one Kurup Behera, plaintiff's mother's father. Plaintiff's mother succeeded to the properties left by Kurup. Jhumani died around 1938, when the plaintiff was about five years old. On Jhumani's death, the plaintiff became the owner of the property, but she being a minor the properties were managed and looked after by her father. When defendants threatened to dispossess the plaintiff from the property, plaintiff came to learn, upon enquiry, that the third defendant as her guardian during her minority executed several sham and nominal sale deeds. The first of these sale deeds was one dated 8th of March, 1948, in favour of defendant No. 7. On 5-6-1964, defendant No. 7 executed a sale deed in favour of defendants 4 to 6 for the entire C schedule property except plot No. 14 having an area of five decimals only. On 5-10-66 defendants 4 to 6 through their father guardian conveyed the aforesaid property in favour of defendants 1 and 2 for a consideration of Rs. 1,800. Plaintiff asserts that in spite of these transactions she continues to be in peaceful possession. Plaintiff alleged that the sale was void and she being still in possession was entitled to relief.

3. Defendants 1 and 2 filed a joint written statement while defendants 3 and 7 filed two separate written statements. The main defence was that the suit as laid was not maintainable and it was barred by limitation. It was further maintained that the sale by defendant No. 3 was for legal necessity and benefit of the minor and defendants were in possession of the property for more than the statutory period and had perfected their title by adverse possession.

4. The trial court found that the suit was barred by limitation in view of Article 60 of the Limitation Act. The sale was not supported by legal necessity nor was it for the benefit of the minor.

5. Three questions were raised in appeal, namely, (i) Whether the sale deed dated 8-3-1948 (Ext. F) was supported by legal necessity, or for the benefit of the minor plaintiff, (ii) Whether the plaintiff is in possession of the suit land or the defendants purchasers being defendants 1, 2 and 7 had perfected their title by adverse possession? and (iii) whether the suit is barred by limitation under Article 60 of the Limitation Act? The lower appellate court found that the consideration stated in the impugned document was to meet the marriage expenses of the minor (plaintiff). Relying on a decision of this court to which reference would be presently made, the court came to hold that the consideration was contrary to public policy and as such the transaction was void. Plaintiff being in possession it was not necessary to ask for declaration by filing a suit and plaintiff was entitled to proceed on the footing that the transaction was a void one and did not necessitate a suit to avoid it. Accordingly it decreed the suit by reversing the judgment and decree of the trial court. This reversing decree of the lower appellate court is assailed in second appeal.

6. Admittedly the consideration under Ext. F the original alienation of 1948, was for the marriage expenses of the plaintiff and for meeting some other small expenses. The lower appellate court has found as a fact that the plaintiff at the time of Ext. F was below the age of 14 and accordingly her marriage was prohibited under the Child Marriage Restraint Act. In fact such a marriage gave rise to criminal liability. There can be no second opinion that the bulk of the consideration under the sale deed was for an unlawful purpose. Sections 23 and 24 of the Contract Act which are relevant may now be referred to. Section 23 provides:--

'The consideration or object of an agreement is lawful, unless--

it is forbidden by law, or

is of such a nature that if permitted, it would defeat the provisions of any law, or

is fraudulent; or

involves or implies injury to the person or property of another; or

the court regards it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful, is void.'

Section 24 provides:---

'If any part of a single consideration for one or more objects or any one or any part of any one of several considerations for a single object, is unlawful, the agreement is void.'

Therefore the consideration in the instant case was opposed to public policy and ultimately, therefore, the sale deed of 1948 must be taken to be a void document. There is no force in the contention of appellants' counsel that the fact that the entire sale consideration was not for the marriage expenses was a feature which should have been duly taken into account. This runs counter to the very provision of Section 24 of the Contract Act.

Reliance was placed by appellants' counsel on the decision of the Supreme Court in the case of Gherulal Parakh v. Mahadeodas Maiya, AIR 1959 SC 731 for the contention that Section 23 of the Contract Act had no application to the facts of the case. The Supreme Court was considering if a wagering contract was forbidden by law and for that purpose it examined as to which clause of Section 23 of the Contract Act applied to a wagering contract. The Court indicated what the term 'Public Policy' meant by saying (at p. 795) :--

'The doctrine of public policy may be summarised thus; public policy or the policy of the law is an illusive concept; it has been described as 'untrustworthy guide', 'variable quality', 'uncertain one', 'unruly horse', etc.; the primary duty of a Court of law is to enforce a promise which the parties have made and to uphold the sanctity of contracts which form the basis of society, but in certain cases, the Court may relieve them of their duty on a rule founded on what is called the public policy; for want of better words Lord Atkin describes that something done contrary to public policy is a harmful thing, but the doctrine is extended not only to harmful cases but also to harmful tendencies; this doctrine of public policy is only a branch of common law, and, just like any other branch of common law, it is governed by precedents.........'

While wagering contracts were found not to be opposed to public policy or to morality, the prohibition of child marriage is certainly one of public policy and the Restraint Act statutorily recognises the policy. Appellants are not entitled to any support from the ratio of the Supreme Court decision.

On the other hand the conclusion of the appellate court is directly supported by a single Judge decision of this Court in the case of Birupakshya Das v. Kunjabihari, (1960) 26 Cut LT 431 : (AIR 1961 Orissa 104). Mohapatra J. rightly placed reliance on a Calcutta decision in the case of Ram Jash Agarwalla v. Chand Mandal, ILR (1937) 2 Cal 764 where B. K. Mukherjea, J. as the learned Judge then was, categorically stated the position with reference to the Child Marriage Restraint Act. I would accordinly hold that in terms of the legal provision, Ext. F would be a void transaction. The finding being that defendants were not in possession and plaintiff was in possession, the alienation being void, plaintiff had no obligation to institute a suit for declaration that the sale was avoidable.

In this view of the matter there is no merit in the appeal and the same must accordingly be dismissed. There will be no order for costs in this Court.


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