PRACTICAL MOOT TRAINING III

BEFORE THE HON’BLE HIS MAJESTY IN COUNCIL

PETITIONER APPEAL OF 1906 RESPONDENT

NAWAB KHWAJA
MUHAMMAD NAWAB HUSAINI
VERSES
KHAN BEGAM

MEMORANDUM ON BEHALF OF THE RESPONDENT

Name- PRATIK GAIKWAD

Year- BALLB V

Roll No. - 20

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TABLE OF CONTENTS

PAGE
S.NO. HEADING
NO.

1. TABLE OF CONTENTS 02

2. LIST OF ABBREVIATIONS 03

3. STATEMENT OF JURISDICTION 04

4. STATEMENT OF FACT 05

5. ISSUES PRESENTED 07

6. ARGUMENTS ADVANCED 08

7. PRAYER 10

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LIST OF ABBREVIATIONS

ABBREVIATION FULL FORM

Hone’ble Honorable

Vs. Verses

i.e That is

ex Example

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STATEMENT OF JURISDICTION

The Court His Majesty in Council in India is vested with jurisdiction, to

hear the present matter under the Section 4 of the Privy Council Appeal
Act of 1874

Section- 4- When Appeal To The Queen In Council Lies

Subject to such rules as may, from time to time, be made by Her Majesty in
Council regarding appeals from the Courts of British India, and to the provisions
hereinafter contained- an appeal shall lie to Her Majesty in 'Council,
a) from any final decree passed on appeal by a High Court or other Court of
final appellate jurisdiction,
b) from any final decree passed by a High Court in the exercise of original
civil jurisdiction, and
c) from any decree, when the case, as hereinafter provided, is certified to be
a fit one for appeal to Her Majesty in Council.

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ISSUES PRESENTED

ISSUE I:

Whether the plaintiff is legally entitled to bring legal action against the
defendant as Respondent is not the party to the contract?

ISSUE II:

Whether the right of the plaintiff to receive kharch-i-pandan is forfeited, as

Respondent has ceased to reside with her husband in her matrimonial
home?

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STATEMENT OF FACTS

1. Khwaja Muhammad Khan entered into a contract on 25th October 1877

with the father of Husaini Begum for the marriage of his son Rustam Ali
and the plaintiff. The contract expressed that after the marriage, the
defendant would pay rupees 500 per month on perpetuity bases as
kharch-i-padan, out of specific properties mentioned in the contract.
2. The marriage took place on 2nd November 1877 however both Rustam
Ali and Husaini Begum were minors due to which plaintiff was
welcomed in her matrimonial home in 1883. The agreement in question
recited that the marriage was fixed for the 2nd November, 1877, and that
“therefore” the defendant declared of his own free will and accord that
he “shall continue to pay Rs. 500 per month in perpetuity ” to the
plaintiff for “her betel-leaf expenses, etc., from the date of the marriage,
i.e., from the date of her reception, “out of the income of certain
properties therein specifically described, which he then proceeded to
charge for the payment of the allowance
3. The suit was bought in this respect, the subordinate judge provided the
decision in favor of Khwaja Muhammad Khan but the subsequent appeal
was made to the High Court where the decision of the subordinate court
was reversed and the court pronounced the decision in favor of Husaini
begum. This led Khwaja Muhammad Khan to appeal before Privy
Council.

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ARGUMENT ADVANCED

ISSUE I:

Whether the plaintiff is legally entitled to bring legal action against the
defendant as Respondent is not the party to the contract under section 2(d)
of the Indian Contract Act?

The defendant states that, the section 2(d) of the Indian Contract Act, imply that
consideration need not be moved by the promise alone but may be moved by a
third party acting on the promise’s behalf. In that respect, Indian Contract Laws
deviates from English Law's norm. As a result, the Indian Law's concept of
"Consideration" is broader than the English Law's.

The defendant further states that, even though the not a party to the contract, a
person who benefits from it can sue the other parties. If a party acknowledges
the enforcement of a contract that compels them to pay a third party a specified
sum of money, the third party may then sue the party that accepted the
enforcement of the contract. Another exemption to the aforementioned
restriction is a contract entered via through an agent.

In the present case the father of the respondent and the father of the petitioner
had entered into a contract when both the suited parties were minor. As there is
a principle that the contract cannot be entered into by the minor, but the minor
can be a beneficiary to it. With regard to the same it is a principle led down by
the English common courts that

“When a contract grants a third party the status of intended

beneficiary, it means that the contract manifests the intent to give
the beneficiary an independent cause of action to enforce the
promise, meaning that once the beneficiary's rights have

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accrued, the original contracting parties are both required to

fulfil their obligations under the agreement. At that time, any
attempt to cancel or change the contract by either the promisor
or the promisee is null and invalid. In fact, the third party may
file a lawsuit against the promisee for tortious interference with
the third party's contractual rights if the promisee changed his
mind and offered to pay the promisor money not to fulfil.”

There are three tests used to determine whether the third party beneficiary's
rights have vested:

1. If the beneficiary is aware of and has relied adversely on the rights

created;
2. If the beneficiary expressly agreed to the contract at the request of
one of the parties; or
3. If the beneficiary has acted in bad faith.

When a contract for the benefit of a third party is violated by the promisor's
failure to perform, the beneficiary has the same right to sue the promisor as
any other party to the contract. Because the third party's rights are determined
by the contract made between the promisor and the promisee, the promisor
may assert against the beneficiary any contract defences that may be asserted
against the promisee.

Considering the aforementioned legal position and applying it to the current

case, it is evidentiary that the agreement made between the respondent and the
petitioner's father created a legal contract for the respondent to receive
Kharch-e-Pandan (Pay-in Money) following the marriage of the suited parties,
placing a charge on one of the property against the consideration. The
aforementioned contract satisfies all of its fundamental requirements. So, the
Respondent's claim is entirely legitimate and legal.

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ISSUE II:

Whether the right of the plaintiff to receive kharch-i-pandan is forfeited, as

Respondent has ceased to reside with her husband in her matrimonial home?

The defendant claims in her defense that Defendant strongly suspects that her life
is in danger because of the animosity that exists between her and the plaintiff.
Respondent also claims that her husband has engaged in immoral behavior and
that he falsely accused her of infidelity as a result of pressure from his father.
Defendant adds that Respondent has what Respondent calls wonderful homes
of her own in the city of Moradabad and that Respondent is happy for her husband
to live there with her as he did previously or to set up a separate residence there.
In her response, Respondent claims that the lawsuit was instituted as a result of the
lawsuit for unpaid pin money.

The defendant states that it is uncontested that Respondent has property worth
between 4 and 5 lakh rupees and residences in Moradabad that are appropriate for
her husband's station in life. Respondent claims that Respondent has no
objections to her husband moving back into one of her homes, as he previously
did, and that Respondent has no objections to continuing their conjugal activities
in Moradabad, whether they do so in her house or anywhere else if he chooses.

Taking into the consideration on the fact of this case the Respondent is in bona-
fide intent to live further with the Petitioner. So also the Respondent as no property
and adequate means for the survival after the Petitioner left the Respondent.

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PRAYER FOR RELIEF

THEREFORE IN THE LIGHT OF THE ARGUMENTS PRESENTED,

AUTHORITIES
MENTIONED AND PROBLEMS RAISED, IT IS PRAYED THAT THIS
HON’BLE COUCIL BE PLEASED

1. TO DISMISS THE PETITION.

2. TO GRANT THE MONTHLY ALLOWANCE IN THE FORM OF KHARCH-I-

PANDAN

AND PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT IT

DEEMS NECESSARY IN THE INTEREST OF JUSTICE, FAIRNESS,
EQUITY, OR GOOD CONSCIENCE.

COUNSELS ON BEHALF OF RESPONDENT

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