D.N. Mitter, J.
1. The plaintiff whose suit for contribution has been dismissed by the Subordinate Judge of Murshidabad has preferred this appeal. The facts on which his right of contribution is founded lie within a narrow compass and may be briefly stated: Estate No. 199 of the Murshidabad Collectorate belongs to a lady Daibakumari and to the Nawab Bahadoor of Murshidabad in the shares of 12 annas and 4 annas respectively. On 2nd September 1907 the Nawab Bahadoor granted a patni lease in respect of the 4 annas share of his said zemindari to Daibakumari, the proprietor of the 12 annas share. On 29th April 1905 Daibakumari granted a darpatni to Tarini Dhar in respect of 4 annas share of the zemindari. On 9th August 1905 Tarini Dhar created a sepatni in favour of Adhar Chandra Mandal, the plaintiff, of some mouzas comprised in his darpatni and he granted sepatni of the remaining mouzas to defendants 4 to 11. On 20th February 1923, Tarini sold the darpatni interest to Nirod Barani (defendant 2) as benamidar for her husband Dolgobinda who is defendant 1 to the suit. From 1332 B.S. onwards the darpatnidars used to pay the superior (patni) rent to the zemindar under the terms of the darpatni kabuliyat which regulate the rights between the patnidar and darpatnidar to which detailed reference will be made hereafter. The patni rents for 1335 to 1336 B.S. fell into arrears and proceedings under Regn. 8 of 1819 were taken to sell the property on 1st Baisakh. 1336. In order to avert the sale the plaintiff had to pay Rs. 1173-9-6. The Patni rents for 1336 and 1337 B.S. fell due and two other Astam proceedings were taken for the sale of the patni under the regulation, and in order to avoid the sale the plaintiff sepatnidar had to pay a further sum of Rs. 2,602-10-0 to the zemindar.
2. The plaintiff has sued for recovery of the aggregate sum of Rs. 3,77 6-3-6 and as neither the patnidar nor the darpatnidar paid the said sum on demand by the plaintiff, the plaintiff has impleaded in the suit both the patnidar and the darpatnidar and has sought for relief in the first instance against the darpatnidar (Nirod Barani, defendant 2, and her husband, defendant 1), and in the alternative against the patnidar's (Daibakumari's) adopted son who is defendant 3 to the suit. The case made in the plaint is that defendant 1 remained bound to pay the zamindar, the Nawab Bahadoor, the patni rent payable by Daibakumari Bibi according to the terms of the darpatni kabuliy at executed by Tarini Dhar and actually made amicable payments. The gist of the action is stated in para. 7 of the plaint where it is stated that defendants 1 and 2 were bound by law to pay the rental aggregating Rs. 3,776-3-6, and as they did not pay, the plaintiff was forced to pay alone the entire sum and hence the suit in which this appeal arises.
3. The defence of defendant 1 to the suit is that he had nothing to do with the patni which had been purchased by defendant 2 with her own money and that the suit against him should be dismissed and costs awarded. The defence of defendant 2 Nirod Barani is that she purchased the patni with her own money, that the payments made by plaintiffs were voluntary payments and that the defendant was not bound to pay the amount of patni rent to the zamindar, and further that the plaintiff was not bound and had no right in law to pay the amount under the Regulation. Defendant 3 stated in his defence that he was the adopted son of Daibakumari and pleaded that he had sold away, on the basis of a registered deed of sale, the 4 annas patni interest which he owned in the Mahals in Touzi No. 199 to defendant 6 Serowgi on 20th Magh 1335 to the full knowledge of the plaintiff, and that he was not liable. On these pleadings several issues were framed and arose for decision. It is necessary to state only two issues for the purposes of the present appeal. They are issues 5 and 6. Issue 5 is as follows : Were defendants 1 and 2 bound to pay the money which was paid by plaintiff? Issue 6 is in these terms: Can the plaintiff recover the amounts claimed? If so, from whom
4. The conclusion of the Subordinate Judge on issue 5 was that the patnidar was the person bound to pay the rent to his superior landlord and that, although by the terms of the darpatni patta the darpatnidar was bound to pay the rent payable by the patnidar to the zamindar but as the Nawab Bahadur of Murshidabad could not sue defendant 1 or defendant 2 for the patni rent as he was no party to the contract between the patnidar and darpatnidar, defendant 1 or defendant 2 was not bound by law to pay to the zamindar; and in support of his view he relied on a decision of Page, J. (as he then was) and Cumming, J. in Jiban Krishna v. Nirupama Gupta 1926 Cal 1009. The Subordinate Judge dismissed the suit against defendants 1 and 2 on this ground. He dismissed the suit against the patnidar, defendant 3, on the ground that Daibakumari (predecessor of defendant 3) sold her patni rights to Joy Chand Serowgi defendant 6 in 1335 B.S.; the patni rent for the period in question was not payable by her.
5. This appeal has consequently been brought by the plaintiff, and on his behalf it has been contended by Dr. Mukerji that the Subordinate Judge has gone wrong on both the points. He contends that it should have been held that Section 69, Contract Act, applied to the present case and that the darpatnidar was 'bound by law' to pay the patni rent to the Nawab Bahadoor by reason of the terms of the darpatni kabuliyat and that the zamindar (Nawab Bahadur) could enforce the covenant in the darpatni kabuliyat against the darpatnidar although he was no party to the same, and that the view of Page, J. in Jiban Krishna v. Nirupama Gupta 1926 Cal 1009 has been dissented from in later decisions of this Court, in particular by Lort-Williams, J. and M.C. Ghose J. in Khirod Behary v. Man Gobinda 1934 Cal 682. Dr. Mukerji has argued further that even if the decision of Page, J. on which the trial Court has relied be held to be right, it does not affect plaintiff's right to contribution as defendant 1 or defendant 2 (darpatnidar) were bound by law to pay under the darpatnidar kabuliyat and a suit could lie at the instance of the patnidar and he has relied in support of this contention on certain observations of the learned Judges of the Bombay High Court in Somashastri v. Swami Rao 1917 Bom 55 at p. 98 where it is said
that bound by law does not mean bound by law to the plaintiff but that the defendant at the suit of any person might be compelled to pay.
6. It becomes necessary to examine the two contentions respectively a little carefully, more particularly the first of the above contentions as the decisions of this Court seem to be in conflict. Taking the first ground contended for that a suit would lie at the instance of the Nawab Bahadur for recovery of the patni rent from the darpatnidar it appears to us that this contention is opposed to the general rule that no rights can be acquired by third parties under a contract unless by the creation of a trust, and the question whether a trust was created in favour of the Nawab Bahadur would depend on the construction of the darpatni pottah in the present case (Ex. 3), p. 1, part 2 executed by Daiba Kumari in favour of Tarini Prosad Dhar. We propose in the first instance to discuss the English law relating to the general rule just indicated. Sir William Anson in his principles of the English Law of Contract, Edn. 17 (1929) (p. 279) expounds the English law on the subject as follows:
(a) It was at one time thought that if the person who was to take a benefit under the contract was nearly related by blood to the promisee a right of action would vest in him. The case in 1 B & Section 393 (1), is conclusive against this view; (b) Equity Judges have used language sometimes, very explicit, to the effect that where a sum is payable by A for the benefit of B, B can claim under the contract as if it had been made with himself....
7. The impression that in any such case a third party who is to be benefited acquires equitable rights ex contractu arises as was explained by Jessel, M. R., in Empress Engineering Co., In Re: (1881) 16 Ch D 125, from the fact that an agreement between two parties might well be so framed as to make one of them trustee for a third .... Whether a trust has or has not in any particular case been created must be a matter of construction as may be seen by reference to the case in Murry v. Flavell (1884) 25 Ch D 89 and Rotheram Alum and Chemical Co. (1884) 25 Ch D 103. In the case last cited Lindley, L.J. put the matter very tersely thus:
But an agreement between A and B that B shall pay C gave C no right of action against B. I cannot see that there is in such a case any difference between Equity and Common Law. It is a mere question of contract. It is said that Mr. Peace has an equity against the company because the company has had the benefit of his labour. What does that mean? If I order a coat and receive it I got the benefit of the labour of the cloth manufacturer but does any one dream that I am under any liability to him. It is mere fallacy to say that because a person gets the benefit of work done for somebody else he is liable to pay the person who did the work.
8. Professor Langdell has put the English Common Law view in the following clear and vigorous language:
A person for whose benefit a contract is made if he is a stranger to the consideration, cannot maintain an action on it. This latter proposition is so plain upon its face that it is difficult to make it plainer by argument. A binding promise vests in the promisee, and in him alone, a right to compel performance of the promise, and it is by virtue of this right that an action is maintained upon the promise. In the case of a promise made to one person for the benefit of another there is no doubt that the promisee can maintain an action not only in his own name but for his own benefit. If therefore the person for whose benefit the promise was made could also sue on it, the consequence would be that the promisor would be liable to two actions. In truth a binding promise to A to pay 100 to B confers no right upon B in law or equity. It confers an authority upon the promisor to pay the money to B, but that authority may be revoked by A at any moment: (see Langdell on Contract, Art, 62).
9. In Leake on Contract, Edn. 7, p. 301 it is said:
A contract can create no right or liability in a person who is not a party to it unless he can claim or be charged through a party, as in the case of a cestui que trust claiming through a trustee, or a principal claiming or being charged through an agent.
10. From the statement of the law in the leading text books we now turn to the leading English decision on the subject. In Touche v. Metropolitan Ry. Warehousing Co. (1870) 6 Ch A 671 Lord Hatherley, L.C. uses language to suggest that in equity, where a sum is payable by A B for the benefit of C D, C D can claim under the contract as if it had been made with himself. In In Re: Empress Engineering Co. (5) Sir George Jessel, Master of the Rolls, was of opinion that the principle laid down in Touche v. Metropolitan (8) can be justified on the ground that an agreement between the two parties might be so framed as to make one of them a trustee for a third. In Les Affreteurs Reunis v. Leopald Ealford (1919) A C 801, where the Charterer sued the Shipowner for the amount of the broker's commission as trustee for the broker, the claim was allowed as against the Shipowners on the footing of a trust. This is manifest from the speeches of some of their Lordships to which reference will presently be made. Lord Chancellor Birkenhead said:
My Lords, so far as I am aware, that case has not before engaged the attention of this House, and I think it right to say plainly that I agree with that decision and I agree with the reasoning, shortly as it is expressed, upon which the decision was founded. In this connection I would refer to the well-known case In Re: Empress Engineering Co. (5). In the judgment of Sir George Jessel, M.R. the principle is explained which in my view underlies and is the explanation of the decision in Robertson v. Wait (1853) 8 Ex 299 The Master of the Rolls uses this language: 'So, again, it is quite possible that one of the parties to the agreement may be the nominee or trustee of third person. As Lord Justice James suggested to me in the course of the argument, a married woman may nominate somebody to contract on her behalf, but then the person makes the contract really as trustee for somebody else, and it is because he contracts in that character that the cestui que trust can take the benefit of the contract.' It appears to me plain that for convenience, and under long-established practice, the broker in such cases, in effect, nominates the charterer to contract on his behalf, influenced probably by the circumstance that there is always a contract between charterer and owner in which this stipulation which is to enure to the benefit of the broker, may very conveniently be inserted. In these cases the broker, on ultimate analysis, appoints the charterer to contract on his behalf. I agree therefore with the conclusion arrived at by all the learned Judges in Robertson v. Wait (10) that in such cases charterers can sue as trustees on behalf of the broker.
11. Lord Wrenbury observed in the same case:
We have here to do with a contract between two parties reserving a benefit to a third The two parties are the Shipowners and the Charterers, the third party is the broker of one of them, who is to be remunerated in respect of a contract which is being made for the hire of a ship. The particular form of contract in question is of course prepared by or is under the eyes of the broker who is negotiating the matter. It is sent to the principals for signature, and they sign it, and there is contained in it a clause which reserves a benefit to the broker. Under these circumstances an action is brought by the broker against the shipowner for the commission which is expressed to be payable to him under the contract between the shipowner and the charterer, a contract to which he himself, I agree, was not a party. By agreement between the parties the record is to be treated as if the charterers were joined as a plaintiff in the action. The case is one in which an action can be brought on behalf of a person to whom a benefit is reserved although he is not a party to it. That is the subject of the decision in Robertson v. Wait (10).
12. And again Lord Wrenbury remarks:
Directly it is conceded that the broker although not a party to the contract, can sue on the contract, inasmuch as he can sue by the charterer as trustee for him, it appears to me that the case really is over.
13. In Gandy v. Gandy (1885) 30 Ch D 57 the rule of the Common law and the exceptions to the rule have been stated by Lord Justice Cotton thus:
Now, of course, as a general rule, a contract cannot be enforced except by a party to the contract; and either of two persons contracting together can sue the other, if the other is guilty of a breach of or does not perform the obligations of that contract. But a third person, a person who is not a party to the contract, cannot do so. That rule, however, is subject to this exception: if the contract, although in form it is with A, is intended to secure a benefit to B, so that B is entitled to say he has a beneficial right as cestui que trust under that contract, then B would, in a Court of equity, be allowed to insist upon and enforce the contract. That, in my opinion, is the way in which the law may be stated.
14. It seems to us that the reason for the rule that none but those in privity with the consideration can maintain an action on the promisee is found in the original conception underlying assumpsit. This remedy of assumpsit was founded on the notion of giving redress for damages incurred by the non-fulfilment of a deceitful promise; only the person who suffered the damage in question could therefore bring a suit upon breach of the promise This rule was clearly a procedural one and was peculiar to the action of assumpsit. The statement of the rule that the stranger to the consideration cannot maintain assumpsit does imply according to English Courts that the promisor owes no legal duty to the person for whose benefit the contract is made. Thus Lindley, J. in Rotheram Alum (7) once said that if an agreement is made between A and B that B shall pay a sum of money to C the inability of C to sue is not due to any defect of remedy. 'It is,' said he, 'a mere question of contract.' The remedy by the action of assumpsit is as broad as the limits of contractual liability. If it were otherwise then one would have expected that the English Courts should have recognised the right of a stranger to sue upon a contract made for his benefit now those forms of action have been abolished by the Judicature Acts. English Courts have refused to sanction the actions, generally, although exceptions have been introduced to the general rule by introducing the theory of trust, agency etc. In Dunlop Pnumatic Tyre v. Selfridge (1915) A C 847 at p. 853 Lord Haldane L.C. said:
My Lords, in the law of England certain principles are fundamental: one is that only a person who is a party to a contract, can sue on it, our law knows nothing of a jusquaestun tertes arising by way of contract; such a right can be conferred by way of property, as for example under a trust.
15. The rule deducible from the authority above cited is that it is a general principle both at Common law and at equity, that a stranger to the contract cannot sue on it although the stranger takes a benefit under it. There are however several apparent exceptions from this principle. At one time it was considered that the nearness of relationship of one party to the contract with the party to be benefited by it gave the latter the benefit of the considerations and the right to sue on it. The Physician's Case cited in Bourne v. Mason (1680) 1 Ventris 6 was a leading authority on this point. There A made a promise to his physician, that if he would effect a certain cure, he would pay a sum of money to the physician's daughter and it was held that she might sue. Dutton v. Poole (1681) 2 Lev 210 at p. 332 was another case of this type illustrating the exception from the general principle on the ground of nearness of relationship. There in assumpsit the plaintiffs who were husband and wife declared . that the wife's father being seized of land which had subsequently descended to the defendant was about to fell 1000 worth of timber to raise a portion for his said daughter; and the defendant promised the father that, if he would forbear to fell the timber, he would pay the daughter. 1000. It was held negativing the contention that the father alone could have brought the action, that the husband and wife could sue on the ground of nearness of relationship This last case was approved of by Lord Mansfieid, C.J. a century after in Martyn v. Hind (1776) 2 Cowper 437 at p. 443 but these two cases were in the year 1861 considered and deliberately disapproved in Tweedle v. Atkinson (1861) 1 B & S 393 and can no longer be considered law.
16. Another exception to the general principle is illustrated by cases where A having as trustee for B contracted with C, B was held entitled to sue both C and A for the performance of the contract; the case in Touche v. Metropolitan Ry. Warehousing Co. (1870) 6 Ch A 671, already referred to is a case of this sort. So too in Murry v. Flavell (1884) 25 Ch D 89 where a widow who was the cestui que trust of a trust created by partnership articles was allowed to sue upon them. There are cases of agency which may be considered as furnishing another apparent exception from the rule, see Hook v. Kinnear (1818) 3 S W 417n. In some of the American States there was some early recognition of the right of the third person to sue. See the leading case in Lawrence v. Fox (1859) 20 N Y 268. Mr. Street in his treatise on the Foundations of Legal Liability, Vol. 2, p. 157 points out that in the State of New York the right of the third person to sue on a contract made for his benefit was by this leading case fully established. The American doctrine laid down in the leading case is not binding on us and we are bound to follow the principle laid down by the Courts of Equity in England unless there are overriding authorities in Indian Courts which prevent us from doing so. I am not unmindful also of the fact that in several other foreign countries like Germany and Italy the view is taken that in a contract between A and B for benefit of C, C can bring an action against the person by whom the benefit is to be conferred and there is an interesting article by an American writer in the Harward Law Review Vol. 15, p. 43, showing the comparative statement of the law in different states including Japan, but we are not troubled with either the Roman Law or the law of other foreign nations but we have to determine the matter by rules of equity as obtained in England. We now turn to the Indian decisions.
17. The question of the applicability of the rule laid down in Tweedle v. Atkinson (1861) 1 B & S 393 to India where rights of parties have to be determined by equity, justice and good conscience came up for consideration by their Lordships of the Judicial Committee in Khwaja Muhammad Khan v. Husaini Begam (1910) 32 All 410 there on 25th October 1877 the appellant executed an agreement with the respondent's father that in consideration of the respondent's marriage with his son (both being minors at the time) he would pay to the respondent Rs. 500 a month in perpetuity for her betel leaf expenses from the date of her reception and charged certain properties with the payment with power to respondent to enforce it; it was held in a suit in 1901 by the respondent to recover arrears of this annuity from 1896, when husband and wife separated that respondent 1, although no party to the agreement was clearly entitled to enforce her claim and Mr. Ameer Ali who delivered the judgment of the Judicial Committee referred to the case in Tweedle v. Atkinson (1861) 1 B & S 393 and observed as follows:
First, it is contended on the authority in Tweedle v. Atkinson (1861) 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 on was an action of assumpsit and that the rule of common law on the basis of which it is 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 in equity to enforce her claim;
and then their Lordships proceed to state:
Their Lordships desire to observe that in India and amongst communities circumstanced as the Mahomedans, amongst whom marriages are contracted for minors by parents and guardians, it might occasion serious injustice if the common law doctrine was applied to agreements or arrangements entered into in connexion with such contracts.
18. The next case to be considered is Debnarain v. Chunilal Ghose 1914 Cal 129 which contains the weighty opinion of Sir Lawrence Jenkins, C. J., and it is necessary to quote at some length the observations of the learned Chief Justice (with whom A.T. Mukerji, J. concurred) for this decision has been the subject of consideration in two later judgments of this Court and has been held to lay down the rule of equity somewhat too broadly. There the facts shortly put were these: In 1899 defendants 1 to 4 borrowed from plaintiff Rs. 300 on 18th August 1903; defendants I to 4 executed a registered instrument of transfer of all their property moveable and immoveable to defendant 5 for Rs. 2,000; Rs. 2,000 was not paid in cash and it was stated in the Kobala that out of the consideration money the sum of Rs. 330 due to plaintiff should be paid by defendant 5. On the same day there was an arrangement between plaintiff and defendant 5 by which the liability of defendant 5 was acknowledged and accepted and the Patta, the title deed of one of the properties was handed over to defendant 5. This money not having been paid by defendant 5 a suit was brought by plaintiff against defendants 1 to 4 as also against defendant 5. Both Courts dismissed the suit. In allowing the appeal Sir Lawrence Jenkins uses the following language with regard to the applicability of Tweedle v. Atkinson (4) to the facts aforesaid:
19. If we were governed by Tweedle v. Atkinson (4), there might possibly be a difficulty in our way, but it has to be borne in mind that Tweedle v. Atkinson (4) was a decision on a form of action peculiar to the Common Law Courts in England and that the case was influenced by the rule that no action in assumpsit could be maintained upon a promise unless consideration moved from the party to whom it was made. Here we have a definition of consideration which is wider than the requirement of the English Law: [Section 2 (d), Contract Act]. And it has been laid down by Sir Barnes Peacock in a Full Bench decision of this Court in relation to Courts in mofussil, Rambuz Chittangeo v. Modhusoodum (1867) Beng L R Sup Vol 675, that in those Courts the rights of parties are to be determined according to the general principles of equity and justice without any distinction as in England, between that partial justice which is administered in the Courts of law and the more full and complete justice for which it is frequently necessary to seek the assistance of a Court of Equity. The rules and the fictions which have been in many cases adopted by the Common Law Courts in England for the purpose of obtaining jurisdiction in cases which would otherwise have been cognizable only by the Courts of Equity are not necessary to be followed in this country where the aim is to do complete justice in one suit. More than that we now have ample authority for saying that the administration of justice in these Courts is not to be in any way hampered by the doctrine laid down in Tweedle v. Atkinson (4). That I take to be the result of the decision of the Privy Council in the recent case Khwaja Muhammad Khan v. Husaini Begum (18). In the report of that case in Khwaja Muhammad Khan v. Husaini Begam (1910) 32 All 410 at p. 868 there is an interlocutory remark of Lord Macnaghten which indicates the limits imposed on a Court of Common Law. He there says 'Supposing she (that is the plaintiff) were an English woman, it is true she could not bring an action in the King's Bench Division, but could she not bring a suit in equity?' The answer of the learned Counsel was 'Yes'. It is possible that this distinction can be explained by the history of the action of assumpsit which was a development of the writ of trespass. In the old writ in indebitatus assumpsit it was alleged that the defendant not regarding his said promise and undertaking but contriving and fraudulently intending craftily and subtlely to deceive and defraud, has not paid and so forth. The breach of contract was charged as deceit and it was only the person deceived who could sue. The bar then in the way of an action by the person not a direct party to the contract, was probably one of procedure and not of substance. In India we are free from these trammels and are guided in matters of procedure by the rule of justice, equity and good conscience.
20. With regard to the observation of Sir Lawrence Jenkins, C.J. that the decision in Tweedle v. Atkinson (4) was influenced by the rule that no action in assumpsit could be maintained upon a promise unless consideration moves from the party to whom it was made it seems the learned Chief Justice was of opinion that the remedy by action of assumpsit is not as broad as the limits of contractual liability; but as against this view Lindley, J. uses language, in Rotheram Alum Co. (7) which has already been quoted before and which goes to show that inability of the stranger to sue is due to any defect of remedy but is a mere question of contract. Then again Sir Lawrence Jenkins, C.J. remarks at p. 146:
The bar then in the way of an action by a person not a direct party to the contract was probably one of procedure and not of substance.
21. Here again the view of Sir Lawrence Jenkins conflicts with the view of Lindley, J , who regards the bar to action as a matter of substance and not of form or procedure. Then the learned Chief Justice observes:
The case with which we are now dealing finds a close parallel in Gregory and Parker v. Williams (1817) 3 Mer 583 and also in the more recent cases of Touche v. Metropolitan (8) and Gandy v. Gandy (11).
22. There is a valuable exposition of the law by Lord Hatherley in the first of these last two cases which was adopted by Lord Justice Cotton in the second. The Lord Chancellor said:
The case comes within the authority that where a sum is payable by A B for the benefit of C D, C D can claim under the contract as if it had been made with himself. That appears to me to be a principle which is of distinct use in the consideration of this case. It appears to me that we have therefore in the circumstances of this case a condition of affairs in which it would be right to hold that the plaintiff is entitled to enforce his claim in this suit.
23. Lord Hatherley's observations must in our opinion be taken with reference to the context in which they appear, and if they are so taken then the following criticism by Page, J., (as he then was) in Jiban v. Nirupama (1) of Sir Lawrence Jenkins's view in Debnarain v. Chunilal Ghose 1914 Cal 129 seems justified: see Jiban Krishna v. Nirupama Gupta 1926 Cal 1009:
But these observations of Lord Hatherley must be taken with reference to the context in which they appear, and in Touche v. Metropolitan Ry. Warehousing Co. (1870) 6 Ch A 671, it is clear that Walker was treated as holding the sum which he received from the company under the agreement between himself and the company as a trustee for the plaintiff. Lord Hatherley's observations in Touche's case (8) were considered in In Re: Empress Engineering Co. (5). In that case Jones and Pride were solicitors who claimed in the liquidation of the company for work done upon instructions received by one of the promoters.
24. Referring to Touche v. Metropolitan Railway Warehousing Co. (8) Jessel, M R. observed that:
In that case the Lord Chancellor finds, as a fact, that Walker was to receive the money as a trustee for the plaintiffs. If you can make out that Jones and Pride are cestuis que trust that alters the case. It appears to me that they are not. The promoters were liable to Jones and Pride who are simply their creditors. A being liable to B, C agrees with A to pay B. That does not make B a cestui que trust.
25. In Jiban Krishna Mullick's case (1) the facts were similar,to that in present case, There A, a putnidar, created a darpatni in favour of B for Rs. 244 per annum. B created a sepatni by an instrument in favour of C for Rs. 344 per annum, out of which Rs. 244 was to be paid to A for the darpatni rent, and Rs. 100 was to be paid to B, the darpatnidar. C paid the Rs. 244 to A for sometime and then fell in arrear. A sued C for rent and in this state of facts it was held that (1) mere payment of a sum of money by C to A could not be made the foundation of a legal obligation on the part of C to pay to A a like sum in like circumstances in the future. Moreover, there was no consideration passing to C from A to bind any such agreement; and (2) it was further held that as the instrument creating the sepatni was not executed for the purpose of conferring a benefit upon A, A was not entitled to sue C upon the agreement thereto contained either at law or in equity. In Krishnalal Sadhu v. Pramilabala Dassi 1928 Cal 518 Sir George Rankin, C.J. (as he then was) subjected the statement of the law by Sir Lawrence Jenkins in Debnarains' case (19) to considerable criticism and used language which would seem to suggest that the proposition formulated by Sir Lawrence Jenkins in that case was too wide. Sir George Rankin observed at p. 1326 of the report :
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, but this notion is rigidly excluded by the definition of 'promisor' and 'promisee.' The decision in Tweedle v. Atkinson (4) was a decision at law and was unaffected by the rules of equity. For this reason the Judicial Committee in Khwaja Muhammad Khan v. Hussaini Begum (18) regarded it as inapplicable to the facts of the case before them where the agreement included a specific charge on immoveable property. In my judgment it is erroneous on the basis of that case or on the observations of Jenkins, C. J., in Debnarain Dutt v. Chunilal Ghose (19), 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 see 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 the contract and is capable of being enforced by a party to the trust in appropriate proceedings as was pointed out in Page v. Cox (1851) 10 Hare 163.
* * * *
To hark back to such cases as Dutton v. Poole (1681) 2 Lev 210 and Bourne v. Mason (1680) 1 Ventris 6, is, in my judgment, a clear mistake and the mistake is not cured by the circumstances that, under the Contract Act, the definition of 'consideration' is wider than in English Law.
26. The next case to be considered is the decision of Lort Williams, J. in the more recent case in Kshirode Behari Dutt v. Man Gobinda Panda Khirod Behary v. Man Govinda 1934 Cal 682 where the facts were similar to the facts of the case in Jiban Krishna v. Nirupama 1926 Cal 1009 and it was held that right of action lay in a third person under a contract between two persons which if performed will benefit such third person. Lort-Williams, J., came to the conclusion directly opposed to the view taken by Sir George Rankin in Krishnalal Sadhu's case 1928 Cal 518, as these cases seemed to be in conflict with Debnarain's case 1914 Cal 129 which he proposed to follow. Lort-Williams, J. did not follow the constitutional principle of referring the matter to a Full Bench when he dissented from two decisions of this Court, in Jiban Krishna Mallik's case 1923 Cal 95 and Krishnalal Sadhu's case 1928 Cal 518 just referred to for that is the proper procedure to take as the Courts of India have been reminded by their Lordships of the Judicial Committee of the Privy Council in Bindheswari Prasad v. Maharaja Kesho Prosad 1926 P C 79. In that case Sir John Edge observed as follows on the question of the proper procedure in case of conflict:
Previous to that amendment in 1907 Sub-sections 2 and 3 had been variously construed by different Benches of the High Court at Calcutta none of which seems to have considered themselves bound by any previous decision on the subject by a Bench of that Court, and had not followed the constitutional principle of referring the question on which they differed from a previous decision of their own Court to a Full Bench to decide what, so far as the High Court was concerned, would be a binding decision on all the Benches of that Court. If such a question had been referred to a Full Bench the Chief Justice would no doubt have appointed a Full Bench to consider such an important reference and to decide the question referred.
27. An independent examination of English cases as also the decisions of the Judicial Committee shows that the view taken by Page, J. in Jiban v. Nirupama 1926 Cal 1009 and of Sir George Rankin, C. J., in Krishnalal v. Pramilabala (22) is the right view to take and it follows therefrom that a stranger to a contract cannot take the benefit of the contract between two other persons reserving a benefit to a stranger unless from the terms of the contract it is clear that a trust for the stranger was intended. This view also receives support from the high authority of their Lordships of the Judicial Committee in Nathu Khan v. Burtonath Singh 1922 P C 176 cited before us by Mr. R.P. Mookerji, the learned Advocate for the darpatnidar respondent. The facts in that case were that after a sale of certain properties the vendor sold another item of property to a third person and it was agreed between them that the latter should discharge the incumbrance on the property which the vendor had sold to the first purchaser free from incumbrance, it was held that a suit by the first purchaser against the second purchaser for recovery of the amount of the incumbrance was misconceived, the former being no party to the latter's purchase and no trust having been created in his favour. Lord Buckmaster said (at 515 bottom, of the report):
The plaint was a clumsy document and the suit as against Bindeswari was misconceived, for the plaintiffs were no parties to the deed of 7th September 1904 and no trust was created in their favour.
28. A Full Bench of the Madras High Court in Subbu Chetti v. Arunachellam Chettyar 1930 Mad 382, after review of the cases English and Indian have reached the same conclusion as we have reached in the present case. That case states the general rule in the manner we have done but states four exceptions to the rule one of which is that 'where a contract between A and B creates a trust in favour of C.' The question, whether a trust was created or not in the present case depends on the construction of the terms of the contract between two parties. In the present case it appears from the darputni kabuliyats, see p. 7, Part 2, that the darpatni rent was to be paid into the Sherista of the Nawab Bahadur of Murshidabad in the name of the patnidar and receipts taken from the zemindar and then at p. 8, line 5 it is stated:
If you fail to pay the assigned darpatni rent according to kilts you shall remain bound to pay what sum will fall due to the Nawab Bahadur on account of interest for defaulted kists, in terms of our patni kabuliyat.
29. From these two clauses in the kabuliyat it is apparent that no trust was in tended to be created in favour of the zamindar, the Nawab Bahadur, so as to entitle the Nawab Bahadur to sue the darpatnidar. On the other hand it seems to us that this stipulation was for the protection of the interest of the darpatnidar. We are therefore of opinion that the darpatnidar was not bound by law to pay the patni rent to the zamindar.
30. It is next argued that although the darpatnidar might be held not liable to pay the patni rent to the Nawab Bahadur still he would be bound to pay to the patnidar under the contract between him and the patnidar; and it is argued that for the purpose of Section 69, Contract Act, it is not necessary for the plaintiff to establish that money was payable to the Zamindar in the sense that a right of action should lie in the Zamindar. Reliance is placed on a decision of the Bombay High Court in Soma v. Swamirao 1934 Cal 682; the following observations made in that case no doubt support the contention of the appellant:
Then the only question is whether the defendant is bound by law to pay that judi. Taking each stop in order, I think it is very clear that he is 'bound by law' does not mean bound by law to the plaintiff but that the defendant at the suit of any person might be compelled to pay. Here we should have to begin with the original donor Krishnaji against whom, it is conceded, the plaintiff might bring a suit to recover this judi upon the covenants of the deed of 1878. Krishnaji in turn, it is conceded, might reimburse himself from Bisto according to the tenor of the deed of 1902 and the understanding and resultant contract of the parties.
Then it becomes merely a question of fact whether Bisto in turn could compel the defendant Swamirao to reimburse him, and that is the question which I have already answered in anticipation by indicating that in our opinion, notwithstanding the inartificial character of the deed of 1905, its real intention, that intention being well understood, was that the defendant undertook Bisto's obligation to pay the judi on plaintiff's land. Thus by three stages the plaintiff could put the law in motion in such a way that the result would show that the defendant was bound in law to pay the money in the payment of which the plaintiff was interested and which the plaintiff had thus in the first instance to pay. On that view we think that we find solid ground for doing what we do not doubt is justice in the case, i.e. compelling the defendant to carry out the original donor's obligations to pay the judi on the plaintiff's land.
31. Accepting the view taken in the Bombay case the question still remains whether the plaintiff, the sepatnidar can take advantage of his right to contribution which founded on principles of equity, seeing that he himself was in default in the payment of sepatni rent to the darpatnidar. The facts show that a suit had to be instituted for realisation of the sepatni rent of the material period. Being himself in default at the time when the patni was advertised for sale he cannot get any relief in equity. We are therefore of opinion that the suit has been rightly dismissed as against the darpatnidars, e.g. defendants 1 and 2. In the case before Lort-Williams, J. all the parties were present before the Court and that circumstances made it possible for the learned Judge to give relief in the appeal before him instead of driving the parties to a separate suit. In the present case the Zamindar Nawab Bahadur of Murshidabad is not a party to the present proceedings, and even if the decision of Lort-Williams, J. is right, the present case can be distinguished therefrom.
32. The question next arises whether plaintiff is not entitled to a decree against the patnidar Daibakumari or rather against defendant 3 who is her adopted son. There can be no question that the patnidar was liable to pay the Zamindar's patni rent and he was therefore bound by law to pay the same but defendant 3 seeks to evade the liability in the suit on the ground that the interest of the patnidar had been transferred to another defendant in the suit namely Joy Chand Serogi, towards the end of 1335 B.S. Serogi is defendant in another capacity and no relief has been asked against him on the footing of his being the transferee of the patni interest. The patnidar defendant 3, does not produce the sale deed neither has the transferee got his name registered in the Zamindar's Sherista and under Section 13 of the patni Regulation the Zamindar is not bound to recognise the patnidar's transferee until certain conditions are fulfilled. In Krishna Chandra Chowdhury v. Dinanath Biswas 1928 Cal 94, to the decision of which I was a party, it was held that until registration of the name of a purchaser of a patni tenure is effected in the landlord's Sherista the transfer does not affect the Zamindar's right, and in spite of the transfer the landlord may ignore the transferee and may continue to hold the recorded tenant responsible for the rent and other obligations imposed upon the tenure. In the present case as a matter of fact the proceedings under the patni Regulation were issued against Daibakumari and as a receipt Ex. 1-A (Part 2, page 47) shows that the present plaintiff paid the patni rent for Agrahayan 1336 as also for the other period in question. In these circumstances the Subordinate Judge was not right in dismissing the suit against the patnidar, defendant 3, on the ground that the plaintiff himself admitted in his deposition that Daibakumari, predecessor of defendant 3, sold her patni right to Joychand Serogi in 1335 B.S.
33. The result is that the appeal must be allowed and a decree for the amount claimed will be passed against defendant 3. The appeal is dismissed as against the darpatnidar defendants 1 and 2 with costs. It is allowed as against defendant 3 and the suit is decreed against him with costs of the trial Court. But the appellant is not entitled to any costs of this appeal as against defendant 3.
34. I agree.