SANKARANARAYANAN Vs. KRISHNAN

JUDGEMENT

(1.) The main question for decision in this appeal by a defendant against a decree for money is a question of law. It is whether the case falls within any of the recognised exceptions to the rule that a stranger to a contract cannot sue upon it even if it be clear that it was intented to benefit him.

(2.) By Ext. B 1 dated 3-1-1949, the defendant and Ms cousin, Raman the sole coparceners of a Hindu joint family governed by Mitakshara Law, entered into a partition of the family property worth over rupees two lakhs. The defendant had, at the time, four sisters, and Raman two, all married, and the plaintiff in the suit is the husband of one of the defendant's sisters, Lakshmikutty by name, who died in January 1953. In their partition the defendant and Raman agreed to pay Rs. 5,000/- to each of their sisters, and the relevant clause in the deed runs as follows:

(3.) However much one might deplore with Denning, L. J. in Drive Yourself Hire Co. Ltd. v. Stratt 1953 (2) All ER 1475 at page 1482) that the rule deduced from "the unfortunate case" of Tweddle v. Atkinson (121 ER 762) a case decided in 18 1, namely, that a stranger to a contract cannot sue upon it, should have been allowed to muddy the clear and settled stream of the English common law, settled for over two hundred years by cases such as Dutton v. Poole, Mariyn v. Hind, Marchington v. Vernon and Carnegie v. Waugh, and with Jenkins C. J. in Debnarayan Dutt v. Chunlal Ghose (ILR 41 Calcutta 137 with Lord Williams J in Khirod Behari v. Man Gobinda (AIR 1934 Calcutta 682) and with Viswanatha Sastri J. in Veeramma v. Appayya (AIR 1957 Andhra Pradesh 955) that free though they were of such impediments in the course of justice as the technicalities of the common law action of assumption and the divorce between law and equity which hampered the courts in England, and released by the definition of 'consideration' in S.2(d) of the Indian Contract Act from that other rule of English Law (related to both being born of the notion that bargain is the basis of contract but less fundamental than the rule which we are now considering and with which it is sometimes confused) on which Tweddle v. Atkinson avowedly proceeds, that consideration must move from the promisee, the courts in India should have chosen to tap this stream after and not before its defilement, the rule is, I am afraid, too firmly established by the decisions of the several High Courts and of the Judicial Committee to be questioned anywhere in India, It has no doubt been argued that none of these decisions is binding on this court, not even that of the Judicial Committee; but I must decline this invitation to rush in and break untrodden ground although I am free to admit that I am unable to see how exactly the notion that a contract can be enforced by a person who is not a party to the contract is rigidly excluded by the definition of 'promisor' and 'promisee' in S.2(c) of the Indian Contract Act as Rankin C. J. says in Krishna Lal v. Ml. Pramila (AIR 1928 Calcutta 518 at page 522), or how as Pollock and Mulla would have it (at page 21 of the eighth edition of their Indian Contract Act), the view that a person not a party to the contract cannot sue on the contract unless the case comes within one of the recognised exceptions is clearly indicated by the provisions of sub-s.(a), (b), (c) and (i) of S.2 of the Act. As Viswanatha Sastri J. confessed in the case just referred to, it is now for the Legislature to mitigate the gross ness of the rule, and all that is left to the courts is the exercise of a beneficent ingenuity for the purpose of bringing a deserving case within one or the other of the recognised exceptions to the rule and thus secure the ends of justice. I must, however, hasten to add that no such exercise is necessary in the instant case, for, on its very 'face, it falls within the well recognised exception of a family arrangement.