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1964 DIGILAW 451 (MAD)

Marayee Ammal v. Minor Nalluswamy by next friend maternal grandfather Ammayappa Goundar

1964-11-13

P.RAMAKRISHNAN

body1964
Judgment.- The point for decision in this Second Appeal is a very brief one. One Marappa had two daughters, defendants 2 and 3 in the suit, by his first wife, Kaliammal, the first defendant. In 1951, he proposed to marry as his second wife one Ammayakkal. Under the Hindu Marriage Act (XXV of 1955) such a second marriage is illegal. However, notwithstanding this provision of law, Marappa is said to have married Ammayakkal, and the plaintiff was born to them, as a result of this illegal second marriage. Shortly prior to the marriage, Marappa made a settlement under Exhibit A-1 of the plaint-schedule properties. Under the settlement deed, he agreed to give the properties, to Ammayakkal to be enjoyed by her for life, with vested remainder to the children of their union. Consideration for the entire settlement deed was the proposed illegal second marriage. Marappa died in 1958 Alleging that the defendants bad wrongfully trespassed on the property, the plaintiff filed the suit, out of which this Second Appeal arises, for possession. The trial Court decreed the suit, and defendants 2 and 3 appealed The learned District Judge, Tiruchirapalli in the appeal, found that the consideration for the settlement deed was the second marriage with Ammayakkal, which was an unlawful consideration. Nevertheless, the learned District Judge was of the opinion that this illegality would render void only the bequest to Ammayakkal, but the gift over to the plaintiff on the death of Ammayakkal, would be valid, and that this would give the plaintiff a vested right in the suit property. Ammayakkal is now dead. Therefore the lower appellate Court gave a decree to the plaintiff for possession with ascertainment of future mesne profits. The present Second Appeal is filed by defendants 2 and 3. The learned District Judge, in appeal, has given the reason for his conclusions thus: " The object of the settlement was to provide for Ammayakkal as the second wife of the settlor. The consideration for the settlement is the consent said to have been given by Ammayakal to marry Marappa Goundar. Both the object and consideration are forbidden by law. Where the consideration or object of an agreement is forbidden by law, the agreement becomes void. Therefore, the contract by which the suit property was conveyed in favour of Ammayakkal has to be struck down as void. Both the object and consideration are forbidden by law. Where the consideration or object of an agreement is forbidden by law, the agreement becomes void. Therefore, the contract by which the suit property was conveyed in favour of Ammayakkal has to be struck down as void. The question is, whether the settlement as a whole is liable to be struck down as void or whether it should fail so far as the transfer in favour of Ammayakkai alone is concerned." This would show that even assuming that there were two gifts, one to Ammayakkai for her life, and the second, the gift of the vested remainder to her children, the consideration for both the gifts was the promise by Ammayakkai to marry Marappa Goundar, and this consideration is illegal being opposed to the Hindu Marriage Act. It is well-known that under section 2 (d) of the Indian Contract Act, the consideration may move to the promisor from the promissee or from a third person. In the present case, the consideration for the gift of the vested remainder to the children moved from Ammayakkai to Marappa, viz., her promise to marry him. So this is a case where, for both the gifts, there was one and the same consideration which was illegal, the effect of which would be to vitiate both the gifts as having been for an unlawful consideration. Learned Counsel for the respondent referred me to the decision in Mrs. Maneshaw v. Motishaw 1 . In that case, a will contained two bequests. The first part of the bequest in the will was considered to be in operative, because the donee, who happened to be the husband of the donor, attested the will. But in such cases, section 67 of the Indian Succession Act provides that the bequest will be void, only so far as it concerns the person so attesting, but it would not render void the rest of the bequest. That principle has no application to the present case, where the illegal consideration itself covers both the bequests and therefore has the effect of rendering them both invalid. I therefore, allow the Second Appeal and dismiss the plaintiff’s suit. The appellants will get costs of the Second Appeal only. No leave. P.R.N. ----- Appeal allowed; Suit dismissed; Leave refused.