1. This revision has arisen from a Small Cause Court suit, brought by the plaintiff-respondent against Ram Raj, defendant 1, and Mt. Humela Kunwar, defendant 2, for recovery of Rs. 546-14-0 principal and interest. The lower Court decreed it against defendant 2, who has applied in revision. Defendant 1 owed Rs. 1,473 to the plaintiff. On 4th July 1930, he satisfied his liability by handing over some cattle delivering some grain and by executing a mortgage deed for Rs. 977. There remained a balance of Rs. 350, for which he executed a bond in favour of 'defendant 2, leaving the entire amount with the latter for payment to the plaintiff. The plaintiff's case is that defendant 2 did not make any payment.
2. The suit was not contested by defendant 1. The defendant 2 however filed a written statement in which it was pleaded that there was no privity of contract between her and the plaintiff and a suit for enforcement of the bond, executed in favour of defendant 1, could not he maintained against her. There was also a plea of payment. This plea has not been accepted by the lower Court whose finding on this point has not been impeached before me. As regards the principal question, the lower Count found in favour of the plaintiff. His case was that defendant 2 had personally undertaken to pay to him Rs. 350, for which defendant 1 executed a bond in her favour, and that relying on her assurance the plaintiff returned certain bonds, duly endorsed, to defendant 1. The only evidence in the case consisted of the testimony of the plaintiff and the husband of defendant 2. The latter, who is said to be a 'pardanashin' lady, did not give her own evidence. The plaintiff supported his case in its entirety and deposed that the transaction was carried though at one sitting, at which the plaintiff-defendant 1, defendant 2 and her husband were present. Defendant 2's husband, Ram Kumar, contradicted the plaintiff so far as the presence of his wife was concerned. He said that he represented his wife on that occasion and she was not present. The lower Court has given no finding on the question of fact whether defendant 2 was present and gave the assurance relied on by the plaintiff. The learned Judge apparently thought that the lady was effectively represented by her husband. He observed:
Whether defendant 2 was present at the time, of the settlement or she was represented at that time by her husband, it is clear that plaintiff and defendant 1 and Musammat Hnmela or her husband all took part in the settlement, and it was expressly agreed by Musammat Humela or her husband to pay Rs. 350 to the plaintiff.
3. If Mt. Humela had been present and had given an undertaking to the plaintiff for the payment of Rs. 350, for which she took a bond from defendant 1, and acting on that undertaking' the plaintiff had given a discharge to defendant 1 returning certain bonds that were at that time outstanding, a case of estoppel might have been made out against defendant 2. The lower Court has not given any finding as to whether defendant 2 gave such an undertaking to the plaintiff. The same result will undoubtedly be arrived at if her husband had the requisite authority to act on her behalf and gave an undertaking to the plaintiff. If the plaintiff's evidence that defendant 2 was herself present be discarded, there is no evidence on the record to prove that defendant 2 had authorised her husband not only to take a bond from defendant 1 but also to enter into a collateral arrangement with the plaintiff undertaking to pay to him the sum of Rs. 350, for which defendant 1 was to execute a bond in her favour. In the absence of such evidence it is impossible to hold defendant 2 liable for the consequences of any verbal undertaking given by her husband on her behalf. This controversy narrows down to the simple question whether defendant 2 was personally present, as is alleged by the plaintiff. It is a case of oath against oath: and as the plaintiff is highly interested in the result of this suit, I do not think it safe to accept his uncorroborated testimony on this point. The lower Court apparently felt the same hesitation and therefore did not definitely find that defendant 2 was present. In these circumstances, I hold that so far as the plaintiff's case is based on the undertaking alleged to have been given by defendant 2, it must fail.
4. As regards defendant 2's liability to the plaintiff arising from the bond executed by defendant 1 in favour of defendant 2, the plaintiff cannot succeed. Defendant 2 did not advance anything at the time when the bond in question was executed. She promised to pay it in future. In substance, the claim is to enforce a promise to advance money. It has been held in numerous cases that an agreement to lend money is not specially enforceable. In substance, the plaintiff's case, so far as it is based on the bond, amounts to a claim for enforcement of defendant 2's promise to advance money in future. The lower Court, has relied upon Dwarkanath v. Piya Nath 1918 Cal. 941. That case is clearly distinguishable as it was a transaction of sale of immovable property. Money was left in the hands of the purchaser for payment to a third person. It was held that the purchaser was, to that extent, a trustee and therefore the third person, who should be regarded as a beneficiary, was entitled to enforce payment. It was not a case which could be considered to be one for enforcement of an agreement to lend.
5. The plaintiff claimed the sum in suit from both the defendants. The lower Court decreed it against defendant 2 only. In view of the findings which I have recorded, no decree can be passed against defendant 2; but the plaintiff is undoubtedly entitled to a decree against defendant 1 who in turn can sue defendant 2 for damages for breach of promise to lend. Accordingly I allow this application, set aside the decree of the lower Count, and decree the plaintiff's suit against defendant 1, who is a respondent in this case but has not entered appearance. I am clearly of opinion that in circumstances like those appearing in this case, a decree can be passed against defendant 1 under Order 41, Rule 33, Civil P.C. The plaintiff shall have his costs from defendant 1 in both Courts. Defendant 2 shall bear her own costs in both Courts.