Alfred Henry Lionel Leach, C.J.
1. The question which is involved in this petition is whether the Subordinate Judge of South Malabar sitting at Palghat was right in holding that he had jurisdiction to try a suit instituted by the first respondent against the petitioner and the second respondent. The petitioner is the husband of the first respondent and the son of the second respondent. The petitioner and his father are members of a joint Hindu family. The petitioner married the first respondent at Negapatam in the month of June, 1929. It is the first respondent's case that at the time of her marriage she entrusted her stridhanam property to the second respondent, who was to re-deliver it to her on demand. She alleges that the property entrusted to him consisted of Rs. 1,750 in cash and jewels, furniture and household utensils of the value of Rs. 3,352. The first respondent alleges that, while she was living with her husband at Vellore, where they went to reside after leaving Negapatam, his treatment of her was so cruel that she was compelled to leave him and return to her father's house at Palghat. At the time the suit was filed the petitioner was residing at Vellore in the North Arcot district and his father at Mayavaram in the Tanjore district. In filing the plaint in the Court of the Subordinate Judge of Palghat, the first respondent relied on the rule of English Common Law that the debtor must seek out his creditor and pay his debt where the creditor happens to reside, unless there is an arrangement to the contrary. She contended that both her husband, and her father-in-law were her debtors, the husband being indebted to her for monies in respect of her maintenance and her father-in-law in respect of the properties entrusted to him. So far as the husband is concerned her claim is for Rs. 3,400 for past maintenance and for future maintenance at the rate of Rs. 60 per mensem. The Subordinate Judge accepted the contention that the common law rule applies in this case and held that the Court had jurisdiction to try the suit.
2. Section 20 of the Code of Civil Procedure states, that, subject to the limitations contained in Sections 16 to 19, every suit shall be instituted in a court within the local limits of whose jurisdiction (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; (b)any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that the leave of the Court is given or the other defendants acquiesce in the suit being instituted there; or (c) the cause of action, wholly or in part, arises. It is quite clear that in this case the cause of action does not arise, even in part, at Palghat and neither of the defendants resides or works there. Therefore the order of the Subordinate Judge can only be supported if the defendants are to be regarded as debtors and the common law rule that the debtor is bound to seek out his creditor applies here. Section 49 of the Indian Contract Act states that, when a promise is to be performed without application by the promisee and no place is fixed for its performance, it is the duty of the promisor to apply to the promisee to appoint a reasonable place for the performance of the promise and to perform it at the place appointed. There is nothing in the Contract Act or in any other statute which states what is to be the position when the promisor fails to fulfil the duty imposed upon him by this section.
3. In Raman Chettiar v. Gopalachari I.L.R.(1908) Mad. 223 which is a case under the Code of 1882, a Bench of this Court held that the common law rule does not apply in India, but it has been argued that this decision has in effect been overruled by the judgment of the Privy Council in Soniram Jeetmul v. R. D. Tata and Co. Ltd. (1927) 53 M.L.J. 25 : L.R. 54 IndAp 265 : I.L.R. 5 Rang. 451 (P.C.) I do not read the judgment of the Judicial Committee as deciding that that rule can always be applied in India where there is no express stipulation with regard to the place of payment or no appointment of a place under Section 49 of the Contract Act. In delivering the judgment of the Board, Viscount Sumner, after referring to the decisions in Motilal v. Surajmal I.L.R.(1904) 30 Bom. 167 Dhunjisha Nusserwanji v. A.B. Fforde I.L.R.(1887) 11 Bom, 649, Puttappa Manjaya v. Virabhadrappa (1905) 7 Bom. L.R. 993 and Bansilal Abirchand v. Ghulam Mahbub Khan (1925) 49 M.L.J. 806 : L.R. 53 IndAp 58 : I.L.R. 1925 Cal. 88 said:
Their Lordships do not think that in this state of the authorities it is possible to accede to the present contention that Section 49 of the Indian Contract Act gets rid of inferences, that should justly be drawn from the terms of the contract itself or from the necessities of the case, involving in the obligation to pay the creditor the further obligation of finding the creditor so as to pay him.
4. It was not necessary in that case to decide whether the common law rule had full force in this country, because on examination of the terms of the contract the Privy Council considered that the suit had been instituted in the proper Court. But giving full weight to the words used in the passage which I have just quoted from the judgment, the judgment goes no further than saying that Section 49 does not preclude the application of the rule and does not get rid of inferences which should justly be drawn from the terms of the contract itself or from the necessities of the case. In the first place the terms of the contract are to be looked at and, if they do not help), the Court must have regard to the necessities of the case in deciding whether the rule should be applied.
5. Without considering in what cases the rule might be conveniently applied in India, it is, in my opinion, clear that it should not be applied in the present case. It has not been established that either the husband or the father-in-law is a debtor, but it may be assumed for purposes of this judgment that the husband is liable to pay the maintenance of the wife and that the father-in-law has possession of the properties described in the plaint. Taking the case of the husband, his liability, if any, does not arise out of contract. It arises, if at all, because he has maltreated his wife to such a degree that she cannot live with him any longer. The rule can have no application in such a case. Then, what is the position with regard to the father-in-law? The first respondent's claim here does arise out of an alleged contract, but it must have been within the contemplation of the parties that the repayment of the money and the re-delivery of the goods entrusted assuming there was entrustment should take place at the family house or at the house where the first respondent was residing with her husband. It could never have been in the contemplation of the parties at the time of the marriage (and that is when the entrustment is said to have taken place) that the husband would so illtreat his wife that she would be compelled to return to her father's house. I consider that in this case the Court can justly draw the inference that the parties contemplated repayment and re-delivery at the family house or at the husband's residence, and therefore the common law rule cannot be applied.
6. I would allow this petition with costs against the first respondent and direct that the plaint be returned to her so that she may file it in the proper Court.
7. While this case was argued before me when I was sitting as a single Judge it was urged that, in every case of a creditor and debtor, the Common Law Rule of England that the debtor should seek out the creditor and pay the debt where the creditor resides applies. It is in order to consider the validity of this argument that I posted this case before a Bench. If the Common Law Rule of England is to be invoked as a mere aid in finding out the place of performance of a contract I have no objection to its being so used and that is the way in which the Judicial Committre used it in Soniram Jeetmul v. R. D. Tata & Co. Ltd. (1927) 53 M.L.J. 25 : L.R. 54 IndAp 265 : I.L.R. 5 Rang. 451 (P.C.) but if it is argued that in every case of debtor and creditor, the rule is to be applied without considering either the terms of the contract or the circumstances attending on it or the necessities of the case I have no hesitation in rejecting the contention. The question whether the Common Law Rule of England is to be applied to a country of vast distances as India has to be considered with care, and it is not necessary to go into that question now.
8. I concur in the order passed by my Lord, the Chief Justice.