1. The facts which have given rise to the present appeal are briefly these: Defendants 1 and 3 are two brothers and defendant 2 is their mother. The father of defendants 1 and 3, who was the husband of defendant 2, left a will by which the whole of his properties vested in defendant 2. After his death defendant 2, the widow, managed for some time the properties, and thereafter defendant 1 managed the family affairs till May 1921, when he separated from his mother and the other brother. In the course of his management various loans were contracted. Some of the loans were taken by defendants 1 and 2 jointly and others were taken by defendant 1 alone. After the separation, two of the senior pleaders of the Pabna Bar were appointed arbitrators by defendants 1 and 2 to decide who, among the two defendants, was liable for the debts contracted. The arbitrators gave their award holding inter alia that defendant 2, that is to say, the mother, was liable for a debt of about Rs. 900 due to the plaintiff in the present case. On these allegations the plaintiff instituted the present suit for recovery of the money due on the hand-note executed in his favour by defendant 1 on 13th November 1921 against all the defendants. The defence of defendant 2 inter alia was that the plaintiff had no cause of action as against her. The Court of first instance decreed the suit against defendants 1 and 2 and dismissed the plaintiff's claim as against defendant 3. Against this decision defendant 2 preferred an appeal to the lower appellate Court. This appeal was however dismissed by the learned Additional District Judge of Pabna. Against the decree of the learned Additional District Judge, defendant 2 has come up to this Court on appeal.
2. On behalf of the appellant, defendant 2, it was contended in the first place that the plaintiff's claim against her, based as it was on the arbitration award was not maintainable, inasmuch as the plaintiff was not a party to the arbitration between defendants 1 and 2. This contention seems to me to be well founded. No doubt, it is true that the general rule as enunciated in Tweddle v. Atkinson (1861) 1 B&S; 393 that a stranger cannot enforce a contract between two other people, is not applicable in this country and that in India such a contract in certain circumstances can be enforced by a stranger thereto. But the circumstances in which it can be thus enforced have been enumerated in a Full Bench decision of the Madras High Court in Subbu Chetti v. Arunachalam Chettiar AIR 1930 Mad 382. In this Pull Bench case kumaraswami Sastri, J., after a full survey of all the case-law on the subject has held that the exception to the general rule that a contract cannot be enforced by a person who was not a party thereto, arises from the following circumstances: (1) where one of the parties to the contract afterwards agrees with the stranger to pay him direct; (2) where the contract creates a trust in favour of the stranger; (3) where the contract charges the money to be paid out of some immovable property; and (4) whore the money is due to the stranger under a marriage settlement, partition or other family arrangement. None of these circumstances existed in the present case. Defendant 2 never agreed with the plaintiff to pay him the money. No trus't was created in favour of the plaintiff and it was never arranged that the money due to the plaintiff was to be paid out of some immovable property and the money was not held to be due to the plaintiff under any marriage settlement, partition or other family arrangement.
3. On behalf of the respondent some reliance was placed upon three decisions of this Court: Protap Narain v. Sarat Kumari (1901) 5 CWN 386, Debnarayan Dutt v. ChuniLal AIR 1914 Cal 129 and Dwarka Nath Ash v. Priya Nath (1918) 36 IC 792. As regards the Pratap Narayan case (1901) 5 CWN 386, I am of opinion that it is clearly distinguishable. In that case a person was held entitled to sue for recovery of the money on the basis of a compromise to which she was no party, but she was so held on the ground that the compromise of doubtful rights, the case of some of the parties in the suit that was compromised being that a partition was invalid and inoperative while the others maintained that it had been duly effected. In the present case there was no litigation which was terminated by the arbitration award; and it is not known whether there was any real contest between defendant 1 and defendant 2, over the particular debt due to the plaintiff which I may mention again was a loan contracted on 13th November 1921, some months after the termination of defendant l's management of the family affairs. As regard's the other two decisions I mean the decisions reported in Debnarayan Dutt v. Chuni Lal AIR 1914 Cal 129 and Dwarka Nath Ash v. Priya Nath (1918) 36 IC 792 all that I need say is that the rule enunciated in these two decisions was not followed by two other later decisions of this Court, viz., in Jiban Krishna v. Nirupama Gupta AIR 1926 Cal 1009, and Krishna Lal Sadhu v. Pramila Bala Dasi 0065/1928 : AIR1928Cal518 .
4. I would therefore hold, following the Pull Bench decision of the Madras High Court reported in Subbu Chetti v. Arunachalam Chettiar AIR 1930 Mad 382, that the plaintiff in the present case was not entitled to lay any claim against defendant 2 on the basis of the arbitration award, and that being so his claim against her ought to have been dismissed. The result therefore is that this appeal succeeds. The plaintiffs' claim against defendant 2 will stand dismissed. Defendant appellant 2 will get her costs in all the Court.
5. I agree.