JUDGMENT
1. By an agreement between the parties to this suit the plaintiff promised to pay the sum of Rs. 1,800 to the first defendant as consideration for the first defendant's promise to marry his niece to plaintiff's son. But before the marriage could take place the plaintiff's son died of plague. Under the agreement, however, the plaintiff had, before her son's death, paid to the first defendant a sum which the lower Courts have ascertained to be Rs. 750. The question is whether, having regard to the character of the agreement between the parties, the plaintiff is entitled to recover this sum from the first defendant. Both the Courts below have decreed the claim, and the first defendant now appeals from that decree.
2. The only ground upon which the decree is attacked has reference to the character of the agreement between the parties. It is contended that that agreement, being an agreement by way of marriage-brokerage, is void as opposed to public policy and, therefore, under Section 65 of the Indian Contract Act, no sum paid under it can be recovered.
3. In Dholidas Ishvar v. Fulchand Chhagan 22 B. 658 it was held by a Division Bench of this Court that such an agreement as that now in question is void as opposed to public policy under Section 23 of the Contract Act; and this decision is binding upon us. That being so, it is urged by the Honourable Mr. Khare that the only principle of law on which in India money paid under a void agreement can be recovered is contained in Section 65 of the Contract Act; and that the language of this section shuts out such a claim as this.
4. The section provides for the restitution of any advantage received under a contract or agreement in two cases, of which the first is the case where an agreement is discovered to be void." It is urged that the agreement before us was never discovered to be void, but was void ab initio. That, however, is, we think, precisely the case contemplated by the section, where the word "agreement," used in sharp antithesis to the word "contract" in the second branch of the sentence, clearly denotes an agreement which, being void ab initio, never reached the stage of contract. In this respect Section 65 merely preserves the distinction between agreement and contract which is maintained throughout the Act e.g., Sections 10 and 20 to 30-in compliance with the interpretation Clauses (h) and (h) of Section 2. It will be observed, moreover, that the section speaks generally of an agreement discovered to be void without express reference to the cause or origin of the void character, so that such an agreement as this, void by reason of a principle of law, would not on that account fall outside the scope of the section. It is true also that there seems the less justification for any attempt to circumscribe the wide language of the Act seeing that the section purports on its face to substitute one broad general principle for the numerous and somewhat technical rules, with their qualifications, which obtain in English law on the subject. So far, then, the matter seems to be free from complexity.
5. But apart from the observations in Dayabhai Tribliovandas v. Lakhmichand Dharmchand 9 B. 358 which scarcely seems to have been necessary to the decision arrived at, the use of the word discovered" introduces certain difficulties in the application of the section to an agreement which is void under Section 23 by reason of an unlawful consideration or object; and we are, therefore, of opinion that this appeal should be decided on a somewhat different ground.
6. It will be observed that what Section 65 provides for is a suit to recover any advantage received by the defendant under the agreement or to obtain compensation therefor. But what the plaintiff in this suit seeks is the recovery of a definite sum of money paid to the defendants. In the recent case of P.R. & Co. v. Bhagwdndas 11 Bom. L.R. 335 : (1909) 2 Ind. Cas. 475 we have held that a suit for a debt or liquidated money demand can still be maintained, as it could formerly have been maintained, under the indebitatus counts, and we think that the present suit should be regarded as a suit for money had and received. Such suits were held to lie wherever the defendant was "obliged by the ties of natural justice and equity to refund the money": per Lord Mansfield in Moses v. Macfarlan (1760) 2 Burr. 1012. The rule was, no doubt, subsequently restricted in its operation, but in such a case as this, where no material part of the illegal purpose has been carried into effect, the payment has always been held to be recoverable: see Kearley v. Thornson (1890) 24 Q.B.D. 74; Herman v. Jeuchner 1885) 15 Q.B.D. 561 Wilson v. Strugnell (1881) 7 Q.B.D. 548 and Taylor v. Bowers (1876) 1 Q.B.D. 291.
7. The principle of law applied in this view of the case is recognised and illustrated in Section 84 of the Trusts Act, and has been adopted by the Courts in India in numerous cases. Reference may, for instance, be made to Mulji Thakersey v. Gomti 11 B. 412 where not only the ornaments and clothes but also the Rs. 700, upariyaman paid to the father of the intended bride, were held to be recoverable; and to Dholidcs's case (1) where Tyabji, J., expressed the opinion that payments under such an agreement as this may be recovered if the marriage has not taken place. This was also the view followed by a Division Bench in Calcutta in Jageswar Chakrabatti v. Punch Kauri Chakrabatti 5 B.L.R. 395 : 14 W.R. 154 which was approved in Ram Chand Sen v. Audiaio Sen 10 C. 1054 where Garth, C. J. says that in such a case "it is manifest justice that the defendants should not be allowed to retain the money". We concur in this opinion and on the above grounds we affirm the decree of the lower appellate Court and dismiss this appeal with costs. The cross-objections are also dismissed with costs.