1. The action was originally brought in 1902 by one Musammat Channoo Bibee against Rai Ganga Prasad Bahadur. The plaintiff and defendant are both dead, and the administrator of the deceased son and heir of the former and the sons and legal representatives of the latter have ben substituted on the record.
2. The action is brought to recover a sum of money which the defendant agreed to pay to the plaintiff in consideration of her consenting to give her daughter in marriage to his son.
3. It appears that the plaintiff had a daughter Sreemati Lachmi Bibee, and that in 1896 the defendant was desirous that this girl should be given in marriage to his son Gobinda Prasad.
4. After some negotiations it was agreed that the plaintiff should give her daughter in marriage and that in consideration thereof the defendant should pay to the plaintiff Rs. 8,000 and convey to her immoveable property bringing in a net income of Rs. 1,200 per annum.
5. The marriage duly took place. The defendant did not pay the money or convey the property and accordingly an action was brought by the girl's mother in which she claimed the custody of the girl. This was compromised and the defendant undertook to carry out the terms of his agreement.
6. He subsequently conveyed to her immoveable property which is alleged to have only brought in an income of Rs. 800 a year instead of the stipulated Rs. 1,200.
7. The girl and her husband are both dead. The Rs. 8,000 has not been paid and it is to recover that sum together with damages that the present action is brought.
8. It has been contended on behalf of the defendants that no part of the cause of action arose within the local limits of the jurisdiction of this Court that the agreement is void as against public policy; that the suit is barred by limitation that the lady had only a life-interest in the immoveable property under the agreement; the right to damages, therefore, ceased on her death, and that even if Channoo Bibee were entitled to damages in her life-time the claim after her death could only be enforced by her representative, and not by the administrator to her son.
9. The question as to which the principal argument has been directed is as to whether the agreement is or is not void as against public policy.
10. The Indenture in which the agreement is expressed is made between the father of the bridegroom of the first part, the mother of the bride of the second part and her son (a minor) of the third part.
11. It recites the agreement for the marriage and that the said Musammat Channoo Bibee is the mother and natural guardian of the said Srimati Lachmi Bibee and as such is entitled primarily under the Hindu Law to marry her said daughter Srimati Lachmi Bibee to a suitable husband according to her choice and selection.'
12. It further recites that during the treaty for the said marriage it was agreed between the parties that in consideration of the said Musammat Channoo Bibee consenting to the marriage of her said daughter Srimati Lachmi Bibee to Gobinda Prasad the said Rai Gungadhur Prasad Singh Bahadur should pay to the said Musammat Channoo Bibee a full and clear sum of Rs. 8,000 absolutely to enable her to purchase a house in Calcutta or erect a suitable residence on her own land; and also should convey and assure to the said Musammat Channoo Bibee a property yielding a net income of not less than Rs. 100 a month or Rs. 1,203 a year to be held by her and enjoyed for and during the term of her natural life, with a proviso restraining alienation during her life and remainder in favour of her son.
13. The Indenture witnessed that Rai Gunga Prasad Singh conveyed certain property to the Musammat, and that he covenanted that he would, immediately on the solemnization of the marriage, pay to Musammat Channoo Bibee the fall and clear sum of Rs. 8,000.
14. For the defendant it is argued that an agreement to dispose of a child in marriage for pecuniary gain is contrary to the Hindu Law and is unenforceable as opposed to public policy.
15. In support of this proposition there is the direct authority of the case of Dholidas Ishvar v. Fulchand Chaggan 22 B. 658 decided in the year 1897 in which it was held by Farran, C.J., and Tyabji, J., after reference to the precepts of Manu and a consideration of the authorities that a contract by which a father was to be paid money in consideration of giving his son or daughter in marriage was against public policy and could not be enforced in a Court of Law; this case was followed in 1908 by a Full Bench of the Madras High Court, in which the same point came up for decision Venkata Kristnayya v. Lakshmi Narayan 32 M. 185 : 3 Ind. Cas. 454 : 18 M.L.J. 503 : 4 M.L.T. 1 (F.B.).
16. For the plaintiff it was contended that the agreement was really for the advantage of the minor who would get the benefit of her mother's increased prosperity. This argument is disposed of by the terms of the agreement itself which imposes no obligation on the mother for the benefit of the child, and, moreover, the fact that it is sought to enforce it long after the minor's death, shows conclusively that it was intended to do no more than confer indirect benefit on the minor.
17. The cases relied on as supporting the view that the agreement is enforceable are Jogeshwar v. Panchkauri 5 B.L.R. 395 : 14 W.R. 154; Ranee Lallun v. Nobin Mohun 25 W.R. 32 and Bakshi Das v. Nadu Das 1 C.L.J. 261; on the, latter, as the latest case in this Court, most stress was laid.
18. As to the first Jogeshar v. Panchkauri 5 B.L.R. 395 : 14 W.R. 154 it is to be observed that the question in the case was not whether such a contract was enforceable; the question was that which was afterwards decided in Ram Chand v. Audaito Sen 10 C. 1054.
19. The case of Ranee Lallun v. Nobin Mohun 25 W.R. 32 was a peculiar one the agreement had been acted on for fifty years and there was nothing to show that the bride's sister who benefited tinder it was in a fiduciary position with regard to the bride.
20. The case principally relied on by the plaintiff is that of Bakshi Das v. Nadu Das 1 C.L.J. 261 decided in 1905, in which it is laid down, after a consideration of the authorities, that an agreement to pay money to the parents or guardians of a bride or bridegroom in consideration of their consenting to the betrothal is not necessarily immoral or opposed to public policy. But this was not the question for decision in the case for it was an action for the recovery of money which had been paid to the brothers of a girl in consideration of their giving her in marriage to the plaintiff. They, in fact, gave her to some one else and did not re-pay the money they had received from the plaintiff. It was held that the plaintiff was entitled to recover it back. The question for decision was covered by Ram Chand v. Andaito Sen 10 C. 1054 which was decided by Garth, C.J., and Beverley, J., in 1884. In that case the Chief Justice expressly declined to hold that the contract was enforceable--while Beverley, J., thought the contract not opposed to public policy. Both Judges concurred in holding the plaintiff entitled to recover.
21. I do not think the decision in Bakshi Das v. Nadu Das 1 C.L.J. 261 can be regarded as an authority for the plaintiffs' proposition as the dictum on which the relies is unnecessary for the decision of the case. That dictum appears to represent the learned Judge's view as to the state of the authorities prior to the decision of Venkata Kristannaya v. Lakshmi Narayan 32 M. 185 : 3 Ind. Cas. 454 : 18 M.L.J. 503 : 4 M.L.T. 1 (F.B.) and is opposed both to that case and to the case of Dholidas v. Fulchand Chaggan 22 B. 658 in both of which the precise point raised in the present case came up for decision.
22. Then, it is contended that on the authority of Parker, J' Section judgment in Visvanathan v. Saminathan 13 M. 83 that while a contract to take money for a consent to a marriage with an ineligible man might be void, a contract to take money for a consent to a proper marriage would be enforceable, that the circumstances of each case must be examined.
23. With all respect, I am unable to agree in this view. If it be on principle unlawful for a parent or guardian to dispose of his ward in marriage for his own personal advantage, it appears to me to be irrelevant to show that in fact the ward was not injured by the disposal.
24. In my opinion a contract whereby a guardian whether natural or appointed agrees to dispose of his ward in marriage for his own personal pecuniary gain is not enforceable in a Court of Law.
25. It has been pointed out that, to hold a contract void as against public policy is a dangerous ground for a decision; but it may be accurately said that reasons of public policy preclude a Court from enforcing a contract which contravenes some rule or principle of law.
26. Now this contract is an agreement between the parties to do that which, as pointed out by Tyabji, J., is condemned by Manu. Whether the precepts of Manu on this point are regarded as precepts of law or of morality, it is clear that in his view such a transaction was wrong Further, it is, I take it, an elementary proposition in the law as relating to guardian and ward that no guardian, whether natural or appointed, is entitled to obtain pecuniary profit for himself out of the person or property of his ward.
27. An agreement by the guardian to accept money for himself in consideration of giving the ward in marriage is in direct contravention of the rule and, therefore, cannot be enforced.
28. The rule appears to me to rest on the broad and general principle that where one is in a fiduciary position with respect to a person and is bound to exercise skill, care or judgment for the benefit of that person, he must not take a reward from some other person for the exercise of his power in some particular way, whether that course taken is in fact beneficial or the reverse to the person whose interests he is bound to protect.
29. Many illustrations of the principle might be given; an agent, entrusted by a principal with authority to make contracts on his behalf, would not be allowed to recover in a Court of Law money promised him by another person to induce him to make a particular contract on behalf of his principal: a surveyor employed by a ship-owner to see that work done to a ship was up to the required standard could not recover in one action a reward promised him by the ship-builder for giving, the certificate that the work was properly done.
30. In short, it may be laid down, as a general rule, that no one who is bound to exercise his discretion on behalf of a person is entitled to receive a gift from another person to induce him to exercise his discretion in any particular direction.
31. In the present case the agreement recites the right of the mother to select a husband for the girl, and it states an agreement to pay her money in consideration of her consenting to the selection of a particular husband. It is, therefore, unenforceable because it contravenes the rule of law which forbids a guardian to make a profit for himself out of his ward--and because the mother being in a fiduciary relation to her child with regard to the selection of a husband, is bound to exercise her powers for the welfare of the child, uninfluenced by the promise of pecuniary gain to herself.
32. For these reasons I agree with the views expressed in the cases of Dholidas v. Fulchand 22 B. 658; Venkata v. Lakshmi 32 M. 185 : 3 Ind. Cas. 454 : 18 M.L.J. 503 : 4 M.L.T. 1 (F.B.) and by Garth, C.J., in Ham Chand v. Audaito Sen 10 C. 1054 and hold that the agreement sued on is not enforceable in a Court of Law.
33. The action must accordingly be dismissed with costs on scale No. 2.