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1935 SCC OnLine Mad 206 : (1936) 43 LW 259 : AIR 1936 Mad 135

Civil Revision Petition No. 1131 of 1933.

CORNISH, J.

Doraiswami Iyer … Petitioner

v.
Arunachala Ayyar and others … Respondents
15th August, 1935.
Contract—Consideration—Promise to subscribe—When enforceable.

The trustees of a temple entered into a contract for effecting the necessary repairs to a temple
and as the work proceeded more money was required, to meet which subscriptions were invited and
a subscription list formed. The defendant put himself down in the list for Rs. 125. The repairs of the
temple were continued and expenditure was incurred by the trustees. In a suit by the trustees to
recover the promised subscription from the defendant.
Held :
That the defendant's promise was a bare promise unsupported by consideration and the suit
therefore was not sustainable. Mere promise to subscribe a sum of money or the entry of the
promised sum in the subscription list would not, in the absence of some request made by the
promisor to the promisee to do something in consideration of the promised subscription and in the
absence of a corresponding undertaking to do it given by the promisee to the promisor, amount to a
promise enforceable at law, as there is no consideration to support that promise.
Kedar Nath Bhattacharji v. Gorie Mahomed(1): Considered.
In re Hudson(2): Followed.
Petition under S. 25 of Act IX of 1887, praying the High Court to revise the order of the Court of
the District Munsif of Arani dated 25th February 1932 and made in S.C.S. No. 1331 of 1931.
Mr. P. Somasundaram for the Petitioner.
Mr. M. Patanjali Sastri for the Respondents.

JUDGMENT

The Civil Revision Petition arises out of a suit in which the trustees of a temple sought
to recover a contribution promised by a subscriber to a subscription list for the repairs
of a temple.

It appears upon the fact found in the lower Court that the plaintiffs—the present
respondents—the trustees entered into a contract for the necessary repairs in the
month of February 1928, and the maistry of the contractor was supplied with money
from village common fund. As the work proceeded more money was required, and to
raise this money subscriptions were invited and a subscription list formed. This was in
October. The present petitioner put himself down in the list for Rs. 125, and it is to
recover this sum that the suit was filed.

Page: 260

The lower Court has decreed the suit. The plaint founds the consideration for this
promise as follows:—That plaintiffs relying on the promise from the subscriber
incurred liabilities in repairing the temple. The question is, does this amount to a
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consideration. The definition of consideration in the Indian Contract Act is that where
at the desire of the promisor the promisee has done or abstained from doing
something such acts or abstinence is called consideration. Therefore, the definition
postulates that the promisee must have acted on some thing amounting to more than
a bare promise. There must be some bargain between them in respect of which the
consideration has been given. In Kedar Nath Bhattacharji v. Gorie Mahomed(1) , the
position is put thus:—The subscriber by subscribing his name says in effect…………In
consideration of your agreeing to enter into a contract to erect or yourselves erecting
this building, I undertake to supply the money to pay for it upto the amount for which
I subscribe my name—And it was observed that is a perfectly good contract. I think it
cannot now be accepted that the mere promise to subscribe a sum of money or the
entry of such promised sum in a subscription list furnishes consideration. There must
have been some request by the promisor to the promisee to do something in
consideration of the promised subscription. This is the rule to be deduced from the
only other case that I have been able to discover relating to the recovery of a promised
subscription on the basis of a contract. That case is In re Hudson(2) . The promise there
was to contribute a large sum of money to the congregational Union for the payment
of Chapel debts. The promisor paid large instalment of his promised contribution and
then died. The congregational Union then sought to make the promisor's executors
liable. The contention was that on the strength of the promise the Committee of the
Union had incurred liabilities, and that this amounted to consideration. It was held
that the claim was unsustainable in-as-much as the promisee had not undertaken any
liability as part of the bargain with the promisor. Mr. Justice Pearson in his judgment
said:—

“What is the consideration for the promise which was to make it a contract? There was
no consideration at all. Mr. Cookson says that there really was a consideration, because
the consideration was the risks and liabilities which the parties were to undertake who
composed themselves into a Committee and became the distributors of the fund. In
the first place there was no duty between themselves and Mr. Hudson (the promisor)
which they undertook at that time—there was no binding obligation between
themselves and Mr. Hudson”.

In the present case it is not pleaded, nor is there evidence, that there was any request
by the subscriber when he put his name in the list for Rs. 125 to the plaintiffs to do
the temple repairs or that there was any undertaking by them to do anything. In my
opinion this was a bare promise unsupported by consideration, and the suit ought to
have been dismissed.

The Petition is allowed with costs throughout.

Petition allowed.

N.R.R.

———
(1) 14 Cal. 64.
(2) 54 L.J. Ch. 811.
(1) 14 Cal. 64 at p. 67.
(2) 54 L.J. Ch. 811.
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