C.C. Ghose, J.
1. In this case the main contention that has been urged on behalf of the two defendants who are appellants before us is that the money payable under a policy of insurance, being policy No. 4667, issued by the Hindusthan Co operative Insurance Society Limited, did form part of the assets of the estate of one Behary Lal Sircar deceased and that his widow Pramila Bala Dassi had no rights therein. In order to understand the precise significance of this contention it is necessary to set out the facts giving rise to the litigation out of which the present appeal has arisen. It appears that one Behari Lal Sircar insured his life on 29th March 1910 for a sum of Rs. 500. The material words of the policy, with which we are concerned are as follows:
The Society hereby guarantees to insure that if the insured pays to the society at their office in Calcutta on the 5th day of March 1910 each succeeding year up to and including the year of his death the sum of Rs. 21 and 11 annas only or in lieu of any such annual premium the full number of instalments thereof as may be agreed upon (of which agreement the receipt granted by the Society shall be full and sufficient evidence) then upon proof to the satisfaction of the office committee of the Society of the death of the insured and the title to the policy, the Society will pay to Srimati Pramila Bala Dassi, wife of the insured (hereinafter called the nominee) at the head office of the Society, in Calcutta or at the permanent residence of the nominee whichever may be preferred the sum, of Rs. 500 only together with such additional sum or sums by way of profits as, according to the Society's regulations may accrue and become payable in respect of the policy, after deducting therefrom : (1) the balance of the premium, if any, payable in respect of the year of the insured's death; and (2) also other sum or sums, if any due from him to the Society.
2. The assured paid all the premiums due on the policy till his death which took place some time in 1324 B.S. He died leaving him surviving the plaintiff, Pramila Bala Dassi, his widow, and three sons. The sons were his heirs under the Hindu law. On the death of the assured the plaintiff claimed the amount of the said policy and it appears that the Insurance Society were about to make payment to the plaintiff. Defendants 1 and 2 who had obtained a decree against the sons of the deceased and defendant 3 who had also obtained another decree against them attached the amount payable under the policy in execution of their two decrees. The plaintiff thereupon preferred a claim under the provisions of the Civil Procedure Code, but her claim was disallowed and the money due under the policy was rateably distributed among the three execution creditors Thereafter the present suit was brought by the plaintiff for declaration of her title to the amount payable under the said policy and for recovery of the money from the creditors.
3. In the Court of first instance the plaintiff's suit was contested only on behalf of defendants 1 and 2 and it was held that the money due under the policy became the property of the plaintiff on the death of the deceased and did not form part of the assets of the estate left by him. The decree of the first Court ran as follows:
Plaintiff to get a decree for the sum of Rs. 173-0-9 with proportionate costs for plaint and pleader's fees, whole cost of the suit necessitated by the contest from defend ants 1 and 2; and Rs. 326-15-3 with proportionate costs for the plaint and pleader's fee from defendant 3.
4. The lower appellate Court affirmed the decree of the first Court. Defendant 3 does not challenge the decree of the lower appellate Court and, as stated above, defendants 1 and 2 are the appellants before us. On their behalf it is contended that having regard to the authorities, viz., the cases reported in Jiban Krishna Mullick v. Nirupama Gupta A.I.R. 1926 Cal. 1009, Shankar Visvanath v. Umabai Sadashiv  37 Bom. 471, and Ishani Dasi v. Gopal Chandra  20 C.L.J. 44, it ought to be held that, having regard to the words used in the policy, there was no trust created in favour of the plaintiff and that she was not entitled to realize the money in question from the Insurance Society and that the said money formed part of the assets of the estate of the deceased. On the other hand, it has been contended on behalf of the plaintiff respondent that she was beneficially interested on the said policy and that she alone was entitled to enforce the claim arising thereunder. It has further been argued that the Married Women's Property Act of 1874 applies to this case and that there fore it cannot be questioned that there was a trust in favour of the plaintiff and that the latter was entitled to realize the money in question from the Insurance Society. It has also been contended that under the Civil Procedure Code the execution creditors were not entitled to attach the amount of the policy in execution of their decrees.
5. The question depends on whether the plaintiff was entitled to enforce her claim against the Insurance Society. If she was, then there could be no question that the money due under the policy belonged to her and did not form part of the assess of the estate of the deceased. The plaintiff was no doubt the nominee of the deceased; but she was no party to the contract between the deceased and Insurance Society. Under the English law if A contracts with B for a benefit to be given to G. although that was the object and purpose of the contract, G may not sue on that contract unless in certain excepted cases. Th9 excepted cases are these : where you can read on the whole of the deed or contract that the contracting party really was a trustee for a third person, then the third person may sue. An illustrative case of this description is the ease of Fletcher v. Fletcher  4 Hare 67. In that case a man covenanted with the trustee or a person whose name was introduced as trustee that after his death 60,000 of his property should be handed to that trustee in trust for the natural children of the covenanting party. It was held by Wigram, V.C., that, looking at the whole scope and purpose of the deed, it amounted to a declaration of trust by the covenanting party for his natural children and that the latter had a perfect right to sue to enforce the trust, although it was a voluntary trust. The second exception in the case of children under a marriage settlement where persons in contemplation of marriage make a settlement by way of contract only for the benefit of, amongst others, the children of the marriage.
6. In English law the children of the marriage are said to be within the marriage consideration; everybody who is considered to be within the immediate purpose and intent of a marriage settlement is treated as a person from whom consideration moves to the contracting party and therefore the children of the marriage are treated-as if they themselves although, of course, they are not then in existence, had given valuable consideration for the contract in the marriage settlement. This last second exception is referred to by Cotton, L.J., in the case of Andrews v. Andrews  15 Ch. D. 228, where his Lordship observed as follows:
As a rule, the Court will not enforce a contract as distinguished from a trust at the instance of persons not parties to the contract. Collier v. Countess of Mulqrave  2 Keen 81 is an example of this. The Court would probably enforce a contract in marriage settlement at the instance of the children of the marriage; but if so, this is an exception from the general rule in favour of those who are specially the objects of a marriage settlement.
7. In the case of Orr v. Union Bank of Scotland 1 Macq. 513 it was held that the mere payment of money by A to B who is not C's agent with a direction to pay it to G is revocable and confers no right of action upon C : see Moore v. Bushell  27 L.J. Ex. 3; and for the application of the same doctrine in equity see Hill v. Boyds  8 Eq. 290. It is unnecessary for me to multiply cases, but the law on the subject will be found in 7, Halsbury 342, and the illustrative cases collected in 12, English and Empire Digest, p. 44, et. seq.
9. It is said, however, that in India the law is somewhat different and in support of this contention the case of Deb Narain Dutt v. Chuni Lal Ghose  41 Cal. 137, is referred to. That ease was decided after the decision of the Privy Council in the ease of Khwaja Mahommad Khan v. Husaini Begum  32 All. 410. As I read this last case, it was a case of a contract between A and B whereby it was in tended to secure a benefit to C as a cestui que trust and the question arose whether C was entitled to sue in his own right to enforce the trust. Their Lordships of the Judicial Committee held that under the agreement executed by A certain immovable property was specifically charged for the payment of allowance which A bound himself to pay to the plaintiff and that the plaintiff was the only person beneficially entitled under it. The plaintiff was G. Their Lordships observed as follows:
First, it is contended on the authority of Tweddle v. Atkinson  1 B. & S. 393 that as the plaintiff was no party to the agreement, she cannot take advantage of its provisions.. With reference to this, it is enough to say that the case relied upon was an action of assumpsit, and that the rule of common law on the basis of which it was dismissed is not, in their Lordships' opinion, applicable to the facts and circumstances of the present case. Here the agreement executed by the defendant specifically charges immovable property for the allowance which he binds himself to pay to the plaintiff; she is the only person beneficially entitled under it. In their Lordships' judgment, although no party to the document, she is clearly entitled to proceed in equity to enforce her claim.
10. In the case of Deb Narain Dutt v. Chuni Lal  41 Cal. 137 the transferee of a debtor's liability had acknowledged his obligation to the creditor for the debt to be paid by him under the provisions of a registered instrument conveying to him all the moveable and immovable properties of the original debtor and the acknowledgment had been communicated to the creditor and accepted by him. In these circumstances it was held that the obligation undertaken by the transferee was for and intended to be for the benefit of the creditor and the creditor was entitled to sue the transferee on the registered instrument. The facts in Deb Narain Dutt's case  41 Cal. 137 were somewhat peculiar and at first sight it may seem that the decision proceeded on the difference between 'consideration' as defined in English law and as defined in the Contract Act. But a closer examination of the case justifies, in my opinion, the criticizm passed on it by Page, J., in the case of Jiban Krishna v. Nirupama  32 All. 410 and the judgment, when properly analysed, does not really go beyond the terms of the actual decision of their Lordships of the Judicial Committee in the case of Khwaja Mahomad Khan v. Husaini Begum  32 All. 410. The same remarks apply to the case of Dwarika Nath v. Priyanath  22 C.W.N. 279. In this connexion reference may be made to an English case where the facts were as follows : A tradesman made a will bequeathing an interest to M, his wife's sister. M married. Her husband and the testator entered into partnership articles with a proviso that, if the testator should die during the partnership, his widow should be entitled to his interest. It was held by Turner, V.C. Page v. Cox 10 Hare 163 that the effect of the agreement between M's husband and the testator was to create an obligation in equity upon the surviving partner and in that respect it did not differ from a tru3t, i.e., that the partnership articles created a trust in favour of the widow. He further held that a trust could not be the less capable of being enforced because it was founded on contract.
11. The point now before us for determination is, in my opinion, covered by authority see Cleaver v. Mutual Reserve Fund Life Association  1 Q.B. 147. There the money due under a life assurance policy was payable to a wife, if living, otherwise to the legal personal representative of the assured. Lord Esher, M.R., observed as follows:
The contract is with the husband and with nobody else. The wife is no party to it. The promise is one which could only take effect upon the husband's death and therefore it must be meant to be enforced then. Apart from any statute the right to sue on a contract would clearly pass to the legal personal representatives of the deceased. It does not seem to me that apart from any statute such a policy would create any trust in favour of the wife. The husband might have altered the destination of the money at any time and might have dealt with it by will or settlement. I think that, apart from any statute, no interest would have passed to the wife by reason merely of her being named in the policy.
12. This case has been followed in Bombay in the case of Shankar v. Uma Bai  37 Bom. 471 and in Calcutta in the case of Eshani Dasi v. Gopal Chandra Dey  20 C.L.J. 44. In my opinion I can see nothing in the present case which would justify me to distinguish it from the cases referred to above. The result is that the first contention on behalf of the respondent must be negatived.
13. The second contention is that the Married Women's Property Act of 1874 is applicable to this ease and that by virtue of Section 6 of the Act a trust has been created in favour of the plaintiff. Of course, if this contention is well founded, the plaintiff is entitled to succeed. In my opinion, the correct rule has been laid down by Fletcher and Richardson, JJ. in the case of Eshani Dasi v. Gopal, Chandra Dey 1914] 20 C.L.J. 44 and for the reasons given by them I am of opinion that the Married Women's Property Act does not apply to this case and that the the plaintiff cannot invoke in aid the provisions of Section 6 thereof. In other words, we ought not to follow the decision reported in Balamba v. Krishnayya  37 Mad. 483. The second contention urged on behalf of the respondent must also be negatived.
14. The third contention is absolutely devoid of substance and there is nothing in Section 60, Civil P.C., which could prevent the creditors of the son of the deceased from attaching the money payable under the policy.
15. In my opinion, this appeal succeeds and must be allowed with costs. Defendants 1 and 2 will also be entitled to the costs in the Courts below.
16. I agree. Clause (d), Section 2, Contract Act, widens the definition of 'consideration' so as to enable a party to a contract to enforce the same in India in certain cases in which the English law would regard that party as the recipient of a purely voluntary promise and would refuse to him a right of action on the ground of nudum pactum. Not only, however, is there nothing in Section 2 to encourage the idea that contracts can be enforced by a person who is not a party to the contract bat this notion is rigidly excluded by the definition of 'promisor' and 'promisee.' The decision of Tweddle v. Atkinson  1 B. & S. 393 was a decision at law an I was unaffected by the rules of equity. For this reason the Judicial Committee in Khwaja Muhamad Khan v. Husaini Begum  32 All. 410 regarded it as inapplicable to the facts of the case before them where the agreement included a specific charge on immovable property. In my judgment it is erroneous on the basis of that case or on the observations of Jenkins, G.J., in Deb Narain Dutt v. Chuni Lal Ghose 41 Calcutta. 137, to suppose that in India persons who are not parties to a contract can be admitted to sue thereon, except where there is an obligation in equity amounting to a trust arising out of the contract. I say nothing as to whether special rules of law may be applicable to communities among whom marriages are contracted for minors by parents and guardians, but, putting aside such cases, I sea no reason to think that the law in India contains a series of exceptions to the principle that a contract can only be sued upon as such by a party thereto. A trust may be founded on a contract and is capable of being enforced by a party to the trust in appropriate proceedings as was pointed out in Page v. Cox 10 Hare 163. It is another matter altogether to say that a person not a party to a contract may bring a suit upon the contract by reason of near relationship to the promisee. Nearness of relationship is a fact which, like many other facts, cannot be disregarded in determining the question whether or not a trust arises out of or is founded on a contract, but it has no other importance. Cases such as the present ca n be decided, and ought to be decided, on the settled principles of equity. In Cleaver's case  1 Q.B. 147 the Court considered whether the policy amounted to a trust for the widow and having found that it did not, determined the matter by the ordinary law of contract. This in m judgment is the only method which can be justified in principle. To hark back to such cases as Button v. Poole  Lev. 210 and Browne v. Mason  1 Ven. 6 is in my judgment a clear mistake and the mistake is not cured by the circumstance that under the Contract Act the definition of 'consideration' is wider than in English law.