Rachhpal Singh, J.
1. This is a defendant's application in revision arising out of a suit to recover a sum of money. The facts which have given rise to the dispute between the parties can very briefly be stated as follows: The plaintiff is one Mrs. R. V. Rigg, carrying on business at Cawnpore. She instituted a suit against one Mrs. Robinson to recover a sum of Rs. 38-3-2. The allegation was that the plaintiff had supplied frocks, jharans, elastics and belts to Mrs. Robinson for her children to the value of the amount claimed. Later on, the husband of Mrs. Robinson was also made a party to the suit.
2. Mrs. Robinson did not contest the suit, but her husband Mr. Robinson did. The Court below framed an issue as to which of the two defendants was liable for the amount claimed, and it held that defendant 2, Mr. Robinson, was liable and Mrs. Robinson was not. The result was that the suit was decreed against Mr. Robinson and dismissed against his wife Mrs. Robinson. The defendant 2, Mr. Robinson, has preferred an application in revision to this Court. The judgment of the learned Judge of the Court below is somewhat brief and is not of much help to this Court in deciding the point in issue. It appears from the judgment of the Court below that the relations between the husband and wife were strained. Defendant 2 had advertised in newspapers that he would not be liable for his wife's debts. The purchases in question were made by Mrs. Robinson on 8th and 17th August 1934. It further appears that the plaintiff herself had not personally sold the articles to Mrs. Robinson but that a servant of hers had gone to the place of Mrs. Robinson on both occasions and had sold some articles, and Mrs. Robinson had signed the usual chits. The learned Judge of the Court below in his judgment says that it is proved that Mr. and Mrs. Robinson had three children. Therefore he came to the conclusion that as the wife had to provide the children and herself in the absence of her husband who used to go out and used to remain away the whole day on duty, so the husband was liable. In my opinion the learned Judge of the Court below did not approach the case from a correct point of view: nor did the plaintiff understand what she had to prove in a case of this description. It is true that at the time the articles were sold by a servant of the plaintiff to Mrs. Robinson, Mr. and Mrs. Robinson were living together. It is further established that they had three children. But the learned Judge is altogether wrong in holding that simply because the husband of a wife is absent on duty during the daytime, the wife is entitled to pledge his credit. The first question which the plaintiff in a case like this should prove is whether the husband had given authority to the wife to pledge his credit. That authority may either be express or implied. There is no plea in the case before me that an express authority had been given by the husband to his wife to pledge his credit. The most that can be said in favour of the plaintiff is that from the circumstances of the case an implied authority may be inferred. But from the evidence which has been produced in the case, I am unable to hold that any implied authority can be inferred in favour of the plaintiff. The plaintiff had not any dealings with Mrs. Robinson from before. Before any decree could be passed in her favour she had to establish that she gave credit to the wife believing that Mrs. Robinson had an implied authority to pledge the credit of her husband. One way of establishing this point was to prove that Mrs. Robinson whilst she was living with her husband and children was the manager who managed the family affairs. If any evidence on that point had been given on behalf of the plaintiff, then she would have been justified in asking the Court to draw the inference of implied authority.
3. But in the case before me no such evidence has been given. Mrs. Robinson has not been even examined as a witness. We have no evidence on behalf of the plaintiff to explain as to why it became necessary for Mrs. Robinson to purchase articles from the plaintiff on credit. On the other hand, defendant 2, Mr. Robinson, went into the witness-box and he stated that as his wife was a very extravagant woman, he had been managing the affairs of the family himself and had supplied to his wife all the necessities of life and that there was no reason for her to purchase anything on credit. It has to be remembered that Mr. Robinson is an interested witness and his evidence has to be accepted with caution. But his evidence remains unrebutted. The only way in which the plaintiff could have rebutted that evidence was to have produced Mrs. Robinson in evidence, and then the Court would have been in a position to determine as to which of the two was telling the truth. As it is, we have only an ex parte statement of defendant 2 and, as there was no other evidence, I see no reason why the statement of Mr. Robinson on this point should not be believed. In Debenham v. Mellon (1881) 6 AC 24, it was held by the House of Lords that where the husband neither does, nor assents to, any act to show that he has held out his wife as his agent, to pledge his credit for goods supplied on her orders, the question whether she bears that character must be examined upon the circumstances of the case and that question is one of fact. Their Lordships further go on to say that the management of the husband's house would raise a presumption of agency as to matters necessarily connected with that management, which might not be got rid of by a mere private arrangement between husband and wife. At one place in their Lordships' judgment their Lordships at p. 31 observe:.On that point, I think it enough to say that, according to all the authorities, there is no such mandate in law from the facts of marriage only, except in the particular case of necessity; a necessity which may arise, when the husband has deserted the wife, or has by his conduct compelled her to live apart from him, without properly providing for her - but not when the husband and wife are living together, and when the wife is properly maintained , because there is, in that state of circumstances, no prima facie evidence that the husband is neglecting to discharge his necessary duty, or that there is any necessary occasion for the wife to run him into debt, for the purpose of keeping herself alive, or supplying herself with lodging or clothing.
4. At another place at p. 32 their Lordships observe:
But where there has been nothing done, nothing consented to, by the husband, to justify the proposition that he has ever held out the wife as his agent. I apprehend that the question whether, as a matter of fact, ho has given the wife authority, must be examined upon the whole circumstances of the ease. No doubt, though not intending to hold her out as his agent and though she may not actually have had authority, the husband may have so conducted himself as to entitle a tradesman dealing with her to rely upon some appearance of authority for which the husband ought to be hold responsible. If he has so acted he may be bound; but the question must be examined as one of fact, and all the authorities, as I understand them, practically treat it so when they speak of this as a presumption prima facie and not absolute, not a presumption of law but one capable of being rebutted.
5. Mr. Eversely in his book, The Law of the Domestic Relations, Edn. 3., defines the position of the parties thus at p. 316:
This implied authority to pledge the husband's credit is not therefore a mere creature of law, but must be based upon some substantial conduct of the husband. Where goods within the category of necessaries are supplied to the wife living with her husband, she will be deemed to have an implied authority from him to contract, and the onus is on the latter to show that they were furnished under circumstances not rendering him liable to pay for them, though evidence is clearly admissible to rebut the implied authority to contract for such goods, and that credit was given to the wife herself, or that the orders were extravagant, or that she had separate income. The husband may also show that the goods sought to be charged for were not necessaries, on the ground that his wife was already well supplied with others of the same kind and description; for a wife supplied with necessaries according to the state and degree in society of her husband, has no right or power without his previous authority or subsequent sanction to pledge his credit for expensive articles supplied secretly to her, even where he sees them, but disapproves of their purchase.
6. It appears to me that the principle is quite clear that where a man comes to enforce a contract between the husband and wife as against the husband, he has to establish that the things sold come within the definition of 'necessaries.' If he proves that, he is entitled to ask the Court to draw an inference in his favour that the things were required as necessities. On the other hand, it is open to the husband to prove that though the things were necessaries, he is not liable because he had been well supplying his wife with funds to purchase all these) things or that he had actually got things purchased by his wife and there was no need for the wife to go and pledge his credit. Now in the case before me there is no evidence from which an inference may be drawn that the husband had so conducted himself as to lead trades-people to think that his wife had an authority to pledge his credit. As I have already pointed out above, Mr Robinson, defendant 2, had given evidence in the case that he himself was the manager. If the plaintiff had given any evidence to show that it was Mrs. Robinson who was the manager, then that would have been a point in her favour. But there is no such evidence. It is not a case where the evidence of the defendant has been disbelieved by the learned Judge of the Court below. If the statement of the defendant-applicant had not been accepted by the learned Judge of the Court below, then sitting in revision I would have been unable to place any reliance on it. But the learned Judge of the Court below does not appear to have considered the evidence of the defendant-applicant at all in deciding the question of his liability in regard to the debt contracted by his wife. The principle enunciated in the above-mentioned reported case was followed in this Court in Girdhari-Lal v. W. Crawford (1886) 9 All 147, and it was held that the liability of a husband for his wife's debts depends on the principle of agency, and he can only be liable when it is shown that he has expressly or impliedly sanctioned what his wife has done. In the case before me there is no evidence to show that the wife had either express or implied authority of her husband to pledge his credit, and in these circumstances it must be held that the husband is not liable for the price of articles purchased by his wife. I therefore hold that the defendant-applicant was not liable for the price of articles purchased by his wife from the plaintiff.
7. The result is that the revision application is allowed, the decree of the Court below is reversed and the plaintiff's suit stands dismissed with costs of defendant 2, applicant in both the Courts.