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Maharaja Perumal Mudaliar and anr. Vs. Sendanatha Mudaliar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1918Mad311; 44Ind.Cas.479
AppellantMaharaja Perumal Mudaliar and anr.
RespondentSendanatha Mudaliar
Cases ReferredCarlill v. Carbolic Smoke Ball Co.
Excerpt:
contract act (ix of 1872), section 2(d) - 'consideration,' what is--hindu law--promissory note, executed 'for promise made by executant's father--repudiation of promise by father, effect of. - - 43 has been accepted as good law in abdul aziz v. the definition taken by leake from the well-known case of carlill v......be placed in a worse position. therefore, the real question is whether the original promise by the father is enforceable.2. notwithstanding the adverse criticism of sir frederick pollock on kedar nath battacharji v. gorie mahomed 7 ind. dec. 43 we are not prepared to differ from the statement of the law therein contained. the fact that a similar promise in england may not be enforced by the courts of law is not conclusive of the question, as definition of consideration in the indian contract act is wider and more comprehensive than is accepted in the english courts. kedar nath bhattacharji v. gorie mahomed. 7 ind. dec. 43 has been accepted as good law in abdul aziz v. masum ali 23 ind. cas. 600 and we are prepared to follow these rulings. but before applying them the necessary facts have.....
Judgment:

1. We are unable to uphold the judgment of the learned District Judge. He is apparently of opinion that the promissory note given by the plaintiff can be supported on the theory that the promise by the father is binding on the son as a pious obligation. If the father himself could have repudiated the promise, the son cannot be placed in a worse position. Therefore, the real question is whether the original promise by the father is enforceable.

2. Notwithstanding the adverse criticism of Sir Frederick Pollock on Kedar Nath Battacharji v. Gorie Mahomed 7 Ind. Dec. 43 we are not prepared to differ from the statement of the law therein contained. The fact that a similar promise in England may not be enforced by the Courts of law is not conclusive of the question, as definition of consideration in the Indian Contract Act is wider and more comprehensive than is accepted in the English Courts. Kedar Nath Bhattacharji v. Gorie Mahomed. 7 Ind. Dec. 43 has been accepted as good law in Abdul Aziz v. Masum Ali 23 Ind. Cas. 600 and we are prepared to follow these rulings. But before applying them the necessary facts have to be ascertained.

3. It may be, as argued by Mr. Deva Doss, that the defendant was himself induced to pay money towards the charitable purposes on the faith of the plaintiff's promise. In that case according to the definition of the term consideration, the plaintiff's promise will be enforceable. The definition taken by Leake from the well-known case of Carlill v. Carbolic Smoke Ball Co. (1893) 1 Q.B. 256 will be equally applicable to such a promise. This is what Leake says: 'The consideration required to support a promise has been defined as consisting of any damage, or any suspension or forbearance of his right or any posibility of a loss occasioned to the plaintiff by the promise of another, although no actual benefit accrues to the party undertaking.' It may also be found that the daily services have been performed by the defendant, relying on the promise of the plaintiff. The learned Counsel for the respondent has stated that his client has paid interest believing that the promised subscription will come in. If that detriment has been suffered the promise of the plaintiff will be enforceable.

4. The District Judge has not expressed any opinion on these questions of fact. We must reverse his decree and direct him to dispose of the appeal in the light of the above observations. The decree of the Subordinate Judge in Small Cause Suit No. l573 of 1913 must also be reversed, because that case cannot be disposed of independently. We transfer the Small Cause suit to the District Judge. He will dispose of that suit in accordance with his conclusions in the appeal. Costs in both the second appeal and the civil revision petition will abide the result.


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