Abdul Aziz v. Masum Ali

A committee collected money to repair a mosque in Agra, and two members promised Rs. 500 each. The High Court at Allahabad held that neither promise could be enforced against the heirs of the treasurer. One promise was a gratuitous promise (a promise made for nothing in return), and the other was a cheque that was never paid.

Quick Revision

Parties

Abdul Aziz and Ors. and Masum Ali and Ors. — the two sides named in the case title. The judgment does not say which named side is the plaintiffs and which is the defendants, or who appealed.

The plaintiffs — members of the Islam Local Agency Committee, Agra. They sued to recover the subscription money.

The defendants — the heirs of Munshi Abdul Karim, the treasurer of the fund.

Munshi Abdul Karim — treasurer of the fund. He promised Rs. 500 and died on 20 April 1909. He is not a party, because the suit was filed against his heirs.

Munshi Jan Muhammad — a subscriber who promised Rs. 3,000 and gave a cheque for Rs. 500. He died in May 1910 and is not a party.

Procedural History

The judgment is a single opinion by the Bench of Henry Richards, C.J. and Pramada Charan Banerji, J. It has only one numbered paragraph, so it is cited by opinion and not by paragraph number.

1. The plaintiffs filed the suit on 14 April 1910 against the heirs of Munshi Abdul Karim.
2. The court of first instance granted a decree (a formal order) for the subscription promised by Munshi Abdul Karim. It dismissed the suit for the Rs. 500 subscription of Munshi Jan Muhammad.
3. The lower appellate court granted a decree for the entire claim.
4. An appeal came to the High Court of Allahabad. The Court decided it on 11 March 1914.
5. The High Court allowed the appeal to the extent of varying the lower court's decree. It dismissed the claim for the two items of Rs. 500 each.

Facts

1. In 1907 a movement began to collect money to repair and reconstruct a mosque known as Masjid Hammam Alawardi Khan.
2. The Local Agency Committee sanctioned a subscription of Rs. 3,000 from itself.
3. Hakim Shafi-ul-lah paid Rs. 100 in cash at that time.
4. Munshi Abdul Karim promised Rs. 500.
5. Munshi Jan Mohammad promised Rs. 3,000.
6. Munshi Abdul Karim was appointed treasurer.
7. The Committee handed its contribution of Rs. 3,000 to Munshi Abdul Karim. He also received the Rs. 100 donation of Hakim Shafi-ul-lah.
8. Munshi Jan Muhammad gave a cheque for Rs. 500, dated 12 September 1907.
9. On 29 September 1907 the cheque was presented for payment. The bank returned it with a note that the endorsement was not regular.
10. On 12 January 1909 the cheque was presented again. The bank returned it with a note that it was out of date.
11. Munshi Abdul Karim died on 20 April 1909.
12. The suit was filed against his heirs on 14 April 1910.
13. Munshi Jan Muhammad died in May 1910.
14. The defendants did not dispute the plaintiffs' right to recover Rs. 3,100. They admitted that part of the claim all along.
15. Both sides admitted that nothing had been done to carry out the repairs and reconstruction of a part of the mosque.
16. The defence was taken to two items only. These were the Rs. 500 represented by the cheque of Munshi Jan Muhammad and the subscription of the deceased Munshi Abdul Karim.

Issues Raised

The judgment does not list issues. The questions below are the ones its reasons address.

1. Could the plaintiffs sue the heirs of Munshi Abdul Karim for his promised subscription of Rs. 500?
2. Did it matter that Munshi Abdul Karim was himself the treasurer?
3. Could the plaintiffs recover the Rs. 500 cheque of Munshi Jan Muhammad from the heirs of the treasurer?
4. Was Munshi Abdul Karim an agent of the committee, and was he guilty of gross negligence over the cheque?
5. If no suit lay against Munshi Abdul Karim in his lifetime, could a suit be brought against his heirs after his death?

Arguments Contended

The reported judgment does not set out the arguments of counsel in the High Court. It records the following points.

Agency argument (the judgment says only "It is said"; it does not name who advanced it):

• Munshi Abdul Karim must be regarded as the agent of the committee.
• If he was the agent, he was guilty of gross negligence, so he would be liable for any loss the Committee sustained.

Defendants (the heirs):

• The defendants did not dispute the claim for Rs. 3,100. They resisted only the two items of Rs. 500 each.
• The judgment records, without saying who made it, the admission that a promise by an outsider could not have been enforced in the circumstances of the case.

The judgment does not name any case or statute relied on by either side.

Court's Reasoning

The judgment is a single opinion by the Bench. It has one numbered paragraph and has no separate or dissenting opinion.

Opinion of the Bench (Henry Richards, C.J. and Pramada Charan Banerji, J.)

1. Noted: The suit was brought by members of the Islam Local Agency Committee, Agra. It was brought against the heirs of Munshi Abdul Karim.
2. Noted: The movement in 1907 was to collect money for repairing and reconstructing a mosque. The Committee, Hakim Shafi-ul-lah, Munshi Abdul Karim and Munshi Jan Mohammad each gave or promised sums. Munshi Abdul Karim was appointed treasurer.
3. Noted: The Committee gave its Rs. 3,000 to Munshi Abdul Karim. He also received Rs. 100 from Hakim Shafi-ul-lah. Munshi Jan Muhammad gave a cheque for Rs. 500 dated 12 September 1907.
4. Noted: The cheque was returned on 29 September 1907 because the endorsement was not regular. It was returned again on 12 January 1909 because it was out of date.
5. Noted: Munshi Abdul Karim died on 20 April 1909. The suit was filed on 14 April 1910. Munshi Jan Muhammad died in May 1910.
6. Noted: The defendants admitted the plaintiffs' right to Rs. 3,100. Both sides admitted that nothing had been done to carry out the repairs and reconstruction of a part of the mosque.
7. Noted: The defence was taken only to two items. One was the Rs. 500 cheque of Munshi Jan Muhammad. The other was the subscription of the deceased Munshi Abdul Karim.
8. Noted: The court of first instance decreed the subscription of Munshi Abdul Karim. It dismissed the claim for the Rs. 500 of Munshi Jan Muhammad. The lower appellate court decreed the entire claim.
9. Held: The suit cannot be maintained in respect of either item.
10. Held: The subscription of Munshi Abdul Karim was a mere gratuitous promise on his part.
11. Noted: It was admitted that a promise of this kind made by an outsider could not have been enforced under the circumstances of the case.
12. Held: It makes no difference that Munshi Abdul Karim was himself the treasurer.
13. Noted: There is no evidence that he ever set aside a sum of Rs. 500 to meet his promised subscription.
14. Held: There is great difficulty in holding that a suit could have been brought against Munshi Abdul Karim in his lifetime over the cheque.
15. Why: His undertaking of the office of treasurer was purely gratuitous. He might at any time have refused to go on with the work.
16. Noted: It was said that he must be regarded as the agent of the committee. It was said that, as agent, he was guilty of gross negligence and so liable for any loss the Committee sustained.
17. Held: Munshi Abdul Karim cannot be said to have been an agent of the committee.
18. Held: Even if he was an agent, it is very doubtful that he could have been held guilty of gross negligence.
19. Why: He had presented the cheque for payment. The mistake in the endorsement was a very natural one.
20. Why: The delay in presenting the cheque again, or in getting a duplicate from the drawer, may well be explained by the delay in carrying out the proposed work.
21. Held: In the circumstances of the case, Munshi Abdul Karim could not have been sued in his lifetime.
22. Held: If no suit lay against Munshi Abdul Karim in his lifetime, no suit could be brought after his death against his heirs.
23. Held: The appeal is allowed to the extent that the lower court's decree is varied by dismissing the claim for the two items of Rs. 500 each. The appellants get the costs of the appeal, and the parties bear costs in the court below in proportion to failure and success.

Authorities

• The judgment names no decided case, statute section or article. It decides the appeal on its facts.

Also cited in footnotes: none. The judgment has no footnotes.

Judgement

1. The appeal is allowed to this extent: the decree of the court below is varied.
2. The claim in respect of the two items of Rs. 500 each is dismissed. These are the subscription of Munshi Abdul Karim and the cheque of Munshi Jan Muhammad.
3. The appellants get their costs of the appeal.
4. In the court below, the parties will pay and receive costs in proportion to failure and success.

Legal Principle / Ratio

On the facts of this case, a subscription promised by a treasurer was a mere gratuitous promise, and it was no more enforceable because he held the office. The Court relied on the admission that an outsider's promise could not have been enforced. A treasurer who took up the office gratuitously cannot be sued over an unpaid cheque in his lifetime, and so his heirs cannot be sued after his death.

Key holding: "if no suit lay against Munshi Abdul Karim in his lifetime, no suit could be brought after his death against his heirs." In plain words, the heirs can be sued only where the deceased could have been sued.

Critical Analysis

Analysis based on the judgment text.

The judgment does not name the rule. The Court calls the promise a mere gratuitous promise. It does not cite a section or a case, and it does not discuss consideration (something given or done in return for a promise) by name.

The reasoning rests on an admission and on the facts. The Court says it was admitted that an outsider's promise could not have been enforced. It does not test that admission against any authority.

The agency point is only partly decided. The Court holds that the treasurer was not an agent. It then adds that even if he was, gross negligence was very doubtful. The judgment does not say how an agent's liability would otherwise work.

Significance

• The case shows that a promise to subscribe to a fund is not enforceable merely because the fund exists. The committee in this case had done no repair work.
• It also shows that holding the office of treasurer did not turn the treasurer's own promise into a binding one.
• It is cited in the Notes on exceptions to consideration under subscription promises.

Exam-Important Points

• Facts in one line: a mosque-repair committee sued the heirs of its treasurer for his promised Rs. 500 and for an unpaid Rs. 500 cheque of another subscriber. Both claims failed.
• A gratuitous promise is not enforceable. The Court treated the treasurer's promise like that of an outsider.
• Trap: the treasurer's office made no difference to his own promise (the Court said so in terms).
• No suit against the deceased, no suit against heirs. The Court held that the heirs cannot be sued if the deceased could not have been sued in his lifetime.
• Trap: the Court held the treasurer was not an agent of the committee. Even if he were, gross negligence was very doubtful.
• The undisputed Rs. 3,100 was not in issue. The appeal concerned only two items of Rs. 500 each.
• Source note: this is a High Court decision of Allahabad, dated 11 March 1914.

Prepared from the full text of the judgment. The judgment has only one numbered paragraph, so it is cited by opinion. The source copy has typing slips. For example, the final amount is printed as Bs. 600 each. This page uses Rs. 500 each, as the judgment states earlier.