LEGAL SUCCESS LAW CLASSES

KEDARNATH BHATTACHARJE V. GORIE MAHOMED

Calcutta High Court ILR 14 Cal 64 (1887)

This was a reference from the Howrah Court of Small Causes.

It appeared that it was thought advisable to erect a Town Hall at Howrah, provided sufficient subscription
could be got together for the purpose. To this end the Commissioners of the Howrah Municipality set to work
to obtain the necessary funds by public subscription, creating themselves, by deed, trustees of the Howrah
Town Hall Fund. As soon as the subscriptions allowed, the Commissioners, including the plaintiff, who was
also Vice-Chairman of the Municipality, entered into a contract with a contractor for purpose of building the
Town Hall. Estimate and plans were submitted to, and approved by the Commissioners, the final estimate
amounting to Rs.40,000 and it was found that the subscriptions would cover this amount.

The defendant was a subscriber to this fund of Rs.100 having signed his name in the subscription book. The
defendant not having paid his subscription was sued by the plaintiff as Vice-Chairman and trustee, and
therefore as one of the persons who had made himself liable to the contractor for the costs of the building,
to recover the amount entered in the subscription book.

The Howrah Court of Small Causes held that the defendant was under no legal obligation to pay, and
dismissed the suit.

Petheram, C.J.- In this particular case, the state of things is this; Persons were asked to subscribe, knowing
the purpose to which the money was to be applied, and they know that on the faith of their subscription an
obligation was to be incurred to pay the contractor for the work. Under these circumstances, this kind of
contract arises. The subscriber by subscribing his name says, in effect. "In consideration of your argeeing to
enter into a contract to erect or yourselves erecting this building. I undertake to supply the money to pay for
it up to the amount for which I subscribe my name". That is a perfectly valid contract and for good
consideration; it contains all the essential elements of a contract which can be enforced in law by the persons
to whom the liability is incurred. In our opinion, that is the case here. We consider that the Small Cause Court
ought to decree the suit for the amount claimed.

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 NAWAB KHWAJA MUHAMMAD KHAN V. NAWAB HUSANI BEGUM
Privy Council (1910) 37 1A 152

Ameer Ali, J. - The suit which has given rise to this appeal was brought by the plaintiff, a Mahomedan lady,
against the defendant, her father-in-law, to recover arreas of certain allowance, called kharch-i-pandan,
under the terms of an agreement executed by him on October 25, 1877, prior to and in consideration of her
marriage with his son Rustam Ali Khan, both she and her future husband being minors at the time.

The agreement in question recites that the marriage was fixed for November 2, 1877, and that "therefore"
the defendant declared of his own free-well and accord that he "shall continue to pay Rs.500 per month in
perpetuity" to the plaintiff for "her betel-leaf expenses etc., from the date of the marriage, i.e., from the date
of her reception," out of the income of certain properties therein specifically described, which he then
proceeded to charge for the payment of the allowance.

Owing to the minority of the plaintiff, her "reception" into the conjugal domicile to which reference is made
in the agreement does not appear to have taken place until 1883. The husband and wife lived together until
1896, when, owning to differences, she left her husband's home, and has since resided more or less
continuously at Moradabad.

The defendant admitted the execution of the document on which the suit is brought, but disclaimed liability
principally on two grounds, namely: (1) that the plaintiff was no party to the agreement, and was
consequently not entitled to maintain the action, and (2) that she had forfeited her right to the allowance
thereunder by her misconduct and refusal to live with her husband.

Evidence of a sort was adduced to establish the allegations of misconduct, but the Subordinate Judge
considered that it was not "legally proved". In another place he expresses himself thus: Although unchastity
is not duly proved, yet I have no hesitation in holding that plaintiff's character is not free from suspicion".

Their Lordships cannot help considering an opinion of this kind regarding a serious charge as unsatisfactory.
Either the allegation of unchastity was established or it was not; if the evidence was not sufficient or not
reliable, there was an end of the charge so far as the particular matter in issue was concerned, and it was
hardly proper to give expression to what the judge calls "suspicion".

The Subordinate Judge, however, came to the conclusion that the plaintiff's refusal to live with her husband
was satisfactorily proved, and, holding that on that ground she was not entitled to the allowance, he
dismissed the suit.

The plaintiff thereupon appealed to the High Court where the argument seems to have been confined soley
to the question of the plaintiff's right to maintain the action. The High Court held that she had a clear right to
sue under the agreement, and it accordingly reversed the order of the first court and decreed the plaintiff's
claim.

The defendants has appealed to His Majesty in Council, and two main objections have been urged on his
behalf to the judgment and decree of the High Court.

First, it is contended, on the authority of Tweddle v. Atkinson, 121 ER 762 (1861), (that as the plaintiff was no
party to the agreement, she cannot take advantage of its provisions. With reference to this it is enough to
say that the case relied upon was an action of assumpsit, and that the rule of common law on the basis of
which it was dismissed is not, in there Lordships' opinion, applicable to the facts and circumstances of the
present case. Here the agreement executed by the defendant specifically charges immovable property for

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the allowance which he finds himself to pay to the plaintiff; she is the only person beneficially entitled under
it. In their 'Lordships' judgment, although no party to the document, she is clearly entitled to proceed in
equity to enforce her claim.

Their Lordships desire to observe that in India and among communities circumstanced as the Mohamedans,
among whom marriages are contracted for minors by parents and guardians, it might occasion serious
injustice if the common law doctrine as applied to agreements or arrangements entered into in connection
with such contracts.

It has, however, been urged with some force that allowance for which the defendant made himself liable
signifies money paid to a wife when she lives with her husband, that it is analogous in its nature to the English
pin-money, over the application of which the husband has a control and that as the plaintiff has left her
husband's home and refused to live with him, she has forfeited her right to it.

Kharch-i-pandan, which literally means "betel-box expenses," is a personal allowance, as their Lordships
understand, to the wife customary among Mahomedan families of rank, especially in Upper India, fixed either
before or after the marriage, and varying according to the means and position of the parties.

When they are minors, as is frequently the case the arrangement is made between the respective parents
and guardians. Although there is some analogy between this allowance and the pin-money in the English
system, it appears to stand on a different legal footing, arising from difference in social institutions. Pin-
money, though meant for the personal expenses of the wife, has been described as "a fund which she many
be made to spend during the coverture by the intercession and advice and at the instance of the husband".
Their Lordships are not aware that any obligation of that nature is attached to the allowance called Kharch-
i- pandan. Ordinarily, of course the money hey would be received and spent in conjugal domicile, but the
husband has hardly any control over the wife's application of the allowance, either in her adornment or in
the consumption of the article from which it derives its name.

By the agreement on which the present suit is based the defendant binds himself unreservedly to pay to the
plaintiff the fixed allowance; there is no condition that it should be paid only when the wife is living in the
husband's home, or that his liability should cease whatever the circumstances under which she happens. to
leave it.

The only condition relates to the time when, and the circumstances under which, his liability would begin.
That is fixed with her first entry into her husband's home, when, under the Mahomedan law, the respective
matrimonial rights and obligations come into existence. The reason that no other reservation was made at
the time is obvious. The plaintiff was closely related to the ruler of the native State of Rampur; and defendant
executed the agreement in order to makes a suitable provision for a lady of her position. The contingency
that has since arisen could not have been contemplated by the defendant.

The plaintiff herself was examined as a witness for the defence. She states in her evidence that she has
frequently been visited by her husband since she left his home. Neither he nor the defendant has come
forward to contradict her statements. Nor does any step appear to have been taken on the husband's part
to sue for restitution of conjugal rights, which the civil law of India permits. On the whole their Lordships are
of opinion that the judgment and decree of the High Court are correct and ought to be affirmed.

Their Lordship will therefore humbly advise His Majesty that the appeal be dismissed.

The appellant will pay the costs.

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