| Citation | AIR 1914 ALL 12 |
| Date of Judgment | 11/03/1914 |
| Court | Allahabad High Court |
| Case type | Subscription |
| Appellant | Masum Ali and others |
| Respondent | Abdul Aziz and others |
| Bench | Henry Rechaeds, Pramada Charan Banerji |
| Referred | Indian Contract Act,1872, section- 2(d) and25 |
Fact of the case
In 1907 a movement was set up on foot to collect money for repairing and reconstruction of a mosque known as Masjid Hamman Alawardi Khan. In the above case the plaintiffs here relate to Islam Local Agency Committee, Agra. And the Local Agency Committee themselves sanctioned a subscription of Rs. 3,000; besides this amount Rs. 100 were paid in cash at the time by Hakim Shafi-ul-lah, Munshi Jan Muhammad gave a cheque for Rs. 500, dated the 12th of September 1907.
On 29th September 1907, the cheque was returned by bank with a note that the cheque was not regular. The cheque was again presented on the date of 12th January,1909 and the bank returned the cheque because the cheque was out of date. On the date of 20th April 1909 Munshi Abdul Karim died. But here the defendants do not dispute the right of the plaintiffs to recover the sum of Rs. 3,100 they have admitted this part.
In this case it is admitted by both the parties that nothing has been done to carry out the repairs and reconstruction of a mosque. In the above case the defendants took two items, viz. Munshi Jan Muhammad represented the cheque of Rs. 500 and subscription of deceased Munshi Abdul Karim.
The court of first instance granted a decree for subscription of the deceased for a promise by Munshi Abdul Karim but the lower court dismissed suit and also granted the entire claim. Among them, Munshi Abdul Karim was appointed as a treasurer. The committee handed over their contribution to Munshi Abdul, and he also received Rs. 100/- from Hakim. This suit goes against heirs of Munshi Abdul for the recovery of Rs.1000/- and Rs.500/- paid by him. And second appeal was made in the High Court.
Issues
1.Whether the promise is enforceable without any consideration?
2.Whether the heirs of Munshi Abdul are liable to pay Rs.1000 /- for negligence?
ARGUMENT
In case of Kedar Nath Bhattacharji v. Gorie Mahomed Sir Fredrick Pollock criticizing the plaintiff said that no question would arise if the committee had not done anything in pursuance of a promise.
Chintaman vs. kaluraju here the case is about an advocate cannot ask his client for extra fees for better performance of duty. It is his statutory duty and he is bound to do that. No consideration is required in the case of performance adjustment duty.
JUDGMENT
It appears to the court that the suit cannot be maintained in respect of either of the issues:
The subscription of Munshi Abdul Karim, it was a mere gratuitous promise on his part. In this case we cannot see that Munshi Abdul Karim was himself the treasurer. In the opinion of the court Munshi Abdul Karim cannot be said to have been an agent of the committee; even if he was it is very doubtful that he could have been held guilty of gross negligence. Under the conditions of the present case, Munshi Abdul Karim could not have been sued in his lifetime.
Appeal is allowed to the extent that it varies with the decree of the court below, declining the claim in respect of the two items of Rs. 500 each. The appellants will get their costs of this appeal including in this court fees on the higher level. In the court below, the parties will pay and receive the costs in proportion to failure and success. In the case appeal-allowed and decree-varied.
Reference
http://www.legalseviceindia.com
Written by Simran Shaw an intern under legal vidhiya.
0 Comments