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Saroj Bandhu Bhaduri Vs. Jnanada Sundari Debya and anr. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1932Cal720,140Ind.Cas.263
AppellantSaroj Bandhu Bhaduri
RespondentJnanada Sundari Debya and anr.
Cases ReferredIn Chatti Chalamnna v. Pandrangi Subbamma
- .....bandhu bhaduri, now deceased, and the defendants are his two sons. she sued for arrears of the monthly allowance due to her under an instrument which is called a mashahara patra executed in her favour by dina bandhu in 1312 b. s. by that instrument, which is addressed to the plaintiff, he purported tomake the provision that yon are to get an allowance at the rate of rs. 10 from my estate month by month...from the month of aswin 1312 b.s. as long as you liveand he charged certain specific immovable property with the payment of the said allowance. the question before us has reference to the concluding clause of the instrument which the learned judge in his judgment has translated as follows:you shall not be entitled to allow the allowance so fixed to remain in arrear for more than one.....

Rankin, C.J.

1. This appeal is brought under the Letters Patent from the decision of Mukerji, J., who has granted leave to appeal from the decree made by him on second appeal, Defendant 1 is the appellant before us, the suit having been decreed by the trial Court against both defendants and this decree having been upheld by the learned Subordinate Judge and by Mukerji, J. The plaintiff is the widowed daughter of one Dina Bandhu Bhaduri, now deceased, and the defendants are his two sons. She sued for arrears of the monthly allowance due to her under an instrument which is called a mashahara patra executed in her favour by Dina Bandhu in 1312 B. S. By that instrument, which is addressed to the plaintiff, he purported to

make the provision that yon are to get an allowance at the rate of Rs. 10 from my estate month by month...from the month of Aswin 1312 B.S. as long as you live

and he charged certain specific immovable property with the payment of the said allowance. The question before Us has reference to the concluding clause of the instrument which the learned Judge in his judgment has translated as follows:

You shall not be entitled to allow the allowance so fixed to remain in arrear for more than one year. As soon as it is in arrear for one year you will realize the same by suit. You shall not be able instead of doing so to institute a suit for realizing arrears for two or thr6e years together.

2. The arrears sued for and decreed extended over four years between 1328 and 1333 B. S. The first question which arises upon the clause is whether it is a mere piece of advice given by the father to the daughter for her benefit or is to be construed as a disability or restriction imposed upon her. For the purpose of answering this question we directed a translation of the whole document which is in Bengali to be made by an official translator of this Court. Whether we proceed upon that or upon the learned Judge's translation of the clause, I think it must be taken as intending to impose upon the grantee a restriction. On that view all three Courts have held the restriction void. The Contract Act by Section 28 provides:

Every agreement by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent.

3. The second question would therefore appear to be whether the mashahra patra or deed of monthly allowance is an ' agreement' and a contract' within the meaning of the Act. This indeed is the only difficulty in the case and must be considered in the light of the definitions given in Section 2 which are to be applied 'unless a contrary intention appears from the context.' From Clauses (e) and (h), Section 2, it appears that an agreement is merely a promise and that a contract is merely an agreement enforceable by law. From Clause (b) we learn that a promise is merely an accepted proposal. Hence it would seem necessary to inquire whether this deed of monthly allowance expresses an accepted proposal. This in turn-re-salves itself into the questions : (a) whether the father was signifying to the daughter his willingness to provide her with a monthly allowance with a view to obtaining her assent and (b) whether the daughter has signified her assent. T. think these questions should be answered in the affirmative. But as it is not easy to believe that anyone who did not know what a 'promise' was would find himself much assisted by this analysis; and as the definition of ' proposal' in Clause (a) which is the basis of the section is a weak support to a heavy superstructure, it is advisable to examine further. When definitions are given of common English words like promise' or 'agreement' it will constantly happen that the words are used in their common English sense without attention to the definition. It is quite clear from theAct that consideration is not an element whose presence is necessary to constitute an 'agreement.' By Clause (1), Section 25, an agreement made without consideration is not void if it is expressed in a registered document and is made on account of natural love and affection between parties standing in a near relation to each other. If the mashahara patra is an instrument of this character then it clearly attracts the provisions of Section 28. What other character can be attributed to it The learned Judge has observed that it does not express a 'gift actually made' within the meaning of Expl. 1. Had the instrument been signed, sealed and delivered, I think that at Common law it would be properly sued upon as a covenant. The plaintiff's cause of action would be the promise made by Dina Banhhu on behalf of himself, his heirs, executors and administrators and none the less so that performance of the promise had been secured by the grant of a charge. Unless the instrument before us can be regarded as a transfer of existing property so as to satisfy Section 122, T. P. Act, I do not see how it can be a 'gift actually made' within the meaning of Section 25, Contract Act. As there is no question of consideration in the present case and no difficulty as regards assent by the daughter it seems to me that it makes no difference whether we use the word 'gift' or the word 'grant' which has a wider connotation. The question is whether the plaintiff can succeed upon a promise or can only rely upon a completed transfer independently of promise. The learned advocate for the appellant cited Jatindra Mohan v. Ghanshayam A. I. R.1923 Cal 27 and the cases therein mentioned. He contended that the mashahara-patra is a grant of a 'corody,' a term which was apparently introduced by Colobrook to translate the word 'nibandha' which means what is settled or a settlement: c. f. Sarkar's Hindu Law, Edn. 6, pp. 315 and 853. In that view he relied upon the observation of Mookerjee, ,J. that

the substance of the matter is that a grant of this character is a right of property, and it is an incorporeal right, the test of validity in each case is whether, under the circumstances the donor has sufficiently indicated an intention that the transfer should take effect as ,a corody and with that intention has done all that is practicable by way of transferring such indicia of property as may be in existence.

4. In that case a testator had in his lifetime by an ekrarnama granted a monthly allowance of Rs. 12-8-0 and limited it to his daughter for life only, and on her death in absolute right with power of gift and sale to any son of the daughter who should be alive at her death; in default of such son to her husband for life only and then to cease. By a subsequent will he confirmed these dispositions. The daughter had sons who survived her but they had been born after their grandfather's death. On these suing for the allowence it was objected that by the rule in Tagore v. Tagore [1872] I. A. Sup. vol. 47 a gift to unborn persons is void. That rule was a rule of Hindu law and Willes, J., in the case cited, had pointed out that there might be exceptions to it,

exceptional cases of provisions by way of contract or of conditional gift on marriages or other family provisions for which authority may be found in Hindu law.

5. It was held that the ease was within the exception. For this purpose it was not in any way necessary to hold that the provision did not originate in agreement. If the rule did not apply to the case then the sons at the very worst could take as legatees. Again in Raja of Ramnad v. Sundara A. I. R. 1918 P. C. 156 a dispute as to the right to an estate was compromised. One party was to give up a village and pay Rs. 700 per month out of the rest of the estate to the plaintiff and his descendants. On the objection as to perpetuity Lord Phillimore said:

Whatever might be said about that, if this agreement lay in covenant seeing that it lies in charge there is no difficulty is making it perpetual....

6. Indeed most of the classical references to a 'corody' contain statements that such an interest may originate in a promise, and some are cited in the judgment in Jatindra s case (l). A more elaborate citation of authorities will be found in Balvantrao v. Pursholtam [1872] 9 Bom. H. C. R. 99 , showing that corody has been described as:

the gift of a future thing by a previous agreement in this form: 'I will give a hundred guvernas every month of Kartik'; a permanent allowance received from saleable articles in virtue of an agreement or promise;' 'anything which has been promised deliverable annually or monthly or at any other fixed periods.

7. In Chatti Chalamnna v. Pandrangi Subbamma [1883] 7 Mad. 23 the sanad was held by Turner, C. J., to be more than a mere promise and to have created a valid charge. The document being unregistered could not be sued on as an agreement, but the charge was held to be enforceable under the Hindu law as a corody and under the English law as a settlement. 'Muttusami Ayyar, J., speaks of it as a gift; but also as a solemn and binding promise, refers to Clause .1, Section 25, Contract Act, and speaks of a promise being equivalent to a declaration of trust.

8. In the case before us the monthly allowance was only to go to the daughter for life. It was not settled upon any one after her. It was to be paid

from my estate; indeed it could not well be made payable out of anything that was not the father's estate--but the charge was over certain particular property.

9. The instrument shows that it was not intended that the rents and profits of the particular property would meet the allowance, but that the corpus would be sold to enforce the claim. If the plaintiff sues upon it as a promise, and if on that footing she is entitled to the relief which has been given, is it any answer to her to gay: 'It is a corody.' I think not. It is no doubt more than a promise because a charge arises to the plaintiff out of the agreement. Had the allowance been settled upon future takers it would be treated under Hindu law as available to them much as though the settlor had appointed trustees covenanted with them, granted them a charge and settled the fund. But I see no pretence in the Hindu texts that there is not a promise (and no reason in the present case why 'the plaintiff should not sue on it as such. The matter is not without difficulty, but upon the whole I agree with the learned Judge and would dismiss this appeal with costs.

C.C. Ghose, J.

10. I agree.

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