Abdul Aziz vs. Masum Ali

0
573
In The Allahabad High Court
Citation
AIR 1914 All. 22

Equivalent citations
(1914) ILR 36 All 268
Petitioner
Abdul Aziz
Respondent
Masum Ali And Ors.
Date of Judgement
11th March 1914

Bench
Sir Henry Richards, Chief Justice, Justice Pramada Charan Banerji

Introduction

Consideration “quid pro quo – something for something

Section 2 (d) of the Contact Act 1872 defines consideration as “When at the desire of the promisor, the promise or any other person has done or abstained from doing or does or abstains from doing or promise to do or abstain from doing. Something such act or abstinence or promise is called a consideration for the Promise.”

Essentials for a Valid Consideration[i]

a. The consideration must move at the desire of the promisor.

b. The consideration may move from the promisee or any other person.

c. The consideration may be past, present or future.

d. Something- An act, abstinence or promise by the promise constitutes consideration.

e. Something- An act, abstinence or promise by the promise constitutes consideration.

Subscription for a charitable purpose

Mere promise to contribute for a charitable purpose is not enforceable, as it is without consideration.

If, however, on the faith of the promise, some liability is incurred by the promise, then the promise is enforceable.

Related Case Law: 

Abdul Aziz v. Masum Ali [ii]

Facts

1. The appellants are the members of the lslam Local Agency Committee, Agra.

2. It appears that in the year 1907, a movement was set on foot to collect money for repairing and reconstructing a mosque known as Masjid Hamman Alawardi Khan.

3. The local agency committee themselves sanctioned a subscription of Rs. 3,000; besides this amount, Rs. 100 were paid in cash at that time by Hakim Shafi Ullah, 500 were promised by Munshi Abdul Karim and another sum of Rs. 500 was promised by Munshi Jan Mohammad.

4. Munshi Abdul Karim was appointed treasurer.

5. The local agency committee handed over their contribution of Rs, 3,000 to Munshi Abdul Karim and he also received the donation of Rs. 100 from Hakim Shafi Ullah.

6. Munshi Jan Mohammad gave a cheque for Rs500 dated 12th September 1907.

7. On 29th September 1907, the cheque was presented for payment, but it was returned by the Bank with a note that the endorsement was not regular.

8. It was again presented on 12th January 1909 when the bank returned the cheque with a note that it was out of date.

9. Munshi Abdul Karim died on 20th April 1909; the present suit was instituted against his heirs on 14th April 1910.

10. Munshi Jan Mohammad died in May 1910.

11. This suit was brought against the heirs of Hafiz Abdul Karim for the recovery of Rs. 1000, that is, Rs 500 promised by him, and Rs 500, the amount for which Jan Mohammad had paid a cheque which was not cashed.

12. The court below made the heirs liable for Rs. 1000.

13. This is Second Appeal from a decree of H.M. Amith, District judge of Agra, dated the 7th September, 1912, modifying a decree of SubordinateJudge, dated the 26th September, 1910.

Issues

1. Whether a promise is enforceable without any consideration?

2. Whether the heirs of Munshi Abdul Karim are liable for negligence?

Arguments

1. As regards to the 1stissue, it was contended on behalf of the appellants that the money promised by the treasurer was not beyond the stage of promise.

2. He had enough money with him but had not transferred that from his private account.

3. No liability was incurred on the strength of the promise.

4. Sir Fredrick Pollock criticizing Kedar Nath Bhattacharji v. Gorie Mahomed[iii] , the plaintiff stated that no question would arise if the committee had not done anything in pursuance of a promise.

5. To this, the respondents stated that the promise was made by the treasurer himself.

6. They stated that Mr. Hafiz had the intention of paying as his name appeared in the list of subscribers prepared and he would not do an overt act to mark the payment.

7. As regards to the 2ndissue, it was contended on behalf of the appellants that the heirs of the treasurer are to be held liable only if they had benefitted from the neglect in the collecting the cheque.

8. He could not be held liable as an agent, as he is an honorary treasurer.

9. Even if he could be treated as agent, he would be a gratuitous agent

10. Neither he nor his heirs shall be held liable as the principle of action personalis moritur cum persona states that an action is a personal one and dies with the person.

11. The respondents stated that the committee suffered a loss through the negligence of Hafiz paid via cheque was questionable if he had been alive.

12. As an agent, he had to realize the money and spend it on a particular purpose and he would be liable if he were a gratuitous agent[iv].

11. They stated that he was appointed as an agent and undertook to do the work and was a case of gross negligence, wherein he left the committee under the impression that money had been realized.

Judgment

It appears to the court that the suit cannot be maintained in respect of either of the issues:

1. With regard to the subscription of Munshi Abdul Karim, it was a mere gratuitous promise on his part.

2. Under the circumstances of the present case it is admitted that if the promise had been made by an outsider it could not have been enforced.

3. We cannot see that it makes any difference that Munshi Abdul Karim was himself the treasurer.

4. There is no evidence that he ever set aside a sum of Rs. 500 to meet his promised subscription.

5. As to the other item that is the amount of Munshi Jan Mohammad’s cheque, there is a great difficulty in holding that a suit could have been brought against Munshi Abdul Karim in respect of this cheque during his lifetime.

6. His undertaking of the office of treasurer was purely gratuitous.

7. 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.

8. He had presented the cheque for payment; the mistake in the endorsement was a very natural one and the delay in representing the cheque or getting a duplicate from the drawer may well be explained by the delay which took place in carrying out the proposed work.

9. Under the circumstances of the present case, Munshi Abdul Karim could not have been sued in his lifetime

10. It is quite clear that if no suit lay against Munshi Abdul Karim be brought after his death against his heirs.

11. Appeal is allowed to the extent that that the court varies with the decree of the Court below, dismissing the claim in respect of the two items of Rs. 500 each.

12. The appellants will get their costs of this appeal including in this court fees on the higher scale.

13. In the Court below, the parties will pay and receive the costs in proportion to failure and success.

14. Appeal-allowed and Decree varied. 

Conclusion

1. Mere promise to contribute for a charitable purpose is not enforceable, as it is without consideration.

2. If, however, on the faith of the promise, some liability is incurred by the promise, then the promise is enforceable.

3. Thus, if A promises to donate Rs. 500 for the repair etc. of a mosque, but nothing is done to carry out the necessary repairs; A cannot be made liable to pay. (Abdul Aziz v. Masum Ali[v])

4. But, if A promises to pay Rs.100 towards the expenses for the construction of Town Hall in Calcutta, and on the faith of such promise, the construction work is started. A would be liable to pay the sum promised by him. (Kedar Nath Bhattacharji v. Gorie Mahomed [vi])

Edited by Parul Soni

Approved & Published – Sakshi Raje

Reference:

[i] R.K. Bangia, Indian Contract Act: Consideration, 460-65.

(14th Edition, 2009), Allahbad law agency Allahabad.

[ii]Abdul Aziz v. Masum Ali AIR 1914 All. 22.

[iii]Kedar Nath Bhattacharji v. Gorie Mahomed (1886) I.L.R, 14 Calc. 64.

[iv] Pallock on the Indian Contract Act, page 563.

[v]Supra note (ii).

[vi]Supra note (iii).