KOMMINENI VEERAMMA Vs. KOMMINENI APPAYYA

JUDGEMENT

(1.) The plaintiff is the appellant. The facts are these. One Nagayya owned a house and vacant site forming the subject-matter of this second appeal. He had a daughter Veeramma, the plaintiff. She married K. Basavayya, a nephew as well as the wife's brother of Nagayya. Nagayya was a whimsical old man who quarrelled with his wife frequently. Their quarrels culminated in a suit by the wife for separate maintenance against Nagayya and a decree allotting a portion of the suit house for her residence. Nagayya gifted tiie house and site in favour of his nephew K. Appayya the defendant, under Exhibit A-1, dated 20th June, 1945. There is a recital in Exhibit A-1 that the donee had been maintaining Nagayya and that the gift was made out of love and affection. Differences soon arose between the plaintiff and the defendant the former being backed by her husband and other relations. The defendant was unr ble to take possession of the property gifted under Exhibit A-1. The gift was challenged as having been procured by fraud practised on Nagayya. The lower appellate Court was inclined to the view that the gift Exhibit A-1 was nominal and could have been got cancelled by Nagayya. Be it as it may, the defendant filed a criminal complaint Exhibit A-2 dated 26th March, 1946, against the plaintiff's husband K. Basavayya and three others accusing them of offences under section 323, 341, 447 and 504, Indian Penal Code. The defence was that the complaint was false. On the intervention of certain mediators the parties compounded the case under Exhibit A-3, dated 24th April, 1946. One of the terms of Exhibit A-3 is that the defendant should execute a dakhal deed conveying ' the house and site in favour of the plaintiff who should thereafter maintain he? father Nagayya in the house for his life. The plaintiff however, was not a party to Exhibit A-3 though she and her father Nagayya took an active part in biinging about the compromise. There was a settlement of a family quarrel and the plaintiff took charge of her father and maintained him till his death pendente lite. The defendant defaulted to execute a dakhal deed in her favour as agreed by him in Exhibit A-3- The plaintiff therefore sued for specific performance of the arrangement. The defendant pleaded that Exhibit A-3 had been obtained from him fraudulently and that a sum of Rs. 100 and a quantity of paddy had been agreed to be paid to him though not so specified in Exhibit A-3 and that there had been default in such payment. The Courts below have rejected this plea of the defendant the trial Court granted a decree for specific performance while the appellate Court dismissed the suit. Hence this second appeal.

(2.) It appears to have been conceded by the advocate for the plaintiffin the lower appellate Court, in deference to authority that the plaintiff being a stranger to the arrangement evidenced by Exhibit A-3 could not sue to enforce its terms. It was argued before me that this admission was due to a misapprehension of the law. On question of fact parties are bound by the admissions of their advocates, whether made in the course of the trial or in the appellate Court, because an advocate's general powers in the conduct of a suit include the abandonment of aa issue of fact, which in his discretion, he thinks it inadvisable to press. Venkata v. Bhashyakarlu, (1902) L.R. 29 I.A. 56: I.L.R. 25 Mad. 367 (P.C.). and Ulichi v. Nallamalli, A.I.R 1928 Mad. 900. Such admissions cannot be resiled from merely on the ground that the party or his advocate was not posted with all the facts at the time. Admissions of counsel on a point of law are, however, not binding on the parties as an estoppel and the Court is free to give effect to its view of the law irrespective of such admissions. Tagore v. Tagore, (1872) 9 Beng.L.R. 377, 401 (P.C.). Beni Prasad v. Dhudnath, (1899) L.R. 26 I.A. 216 : I.L.R. 27 Cal. 156, 162-163. Societe Banqut etc., v. Girdhari, A.I.R. 1940 P.C. 90. Muthusami v. Loganatha, A.I.R. 1935 Mad. 404. and Nachiappa v. Muthu, (1946) 1 M.L.J. 343 : I.L.R. (1947) Mad. 99 : A.I.R. 1946 Mad. 398. The question of law whether the plaintiff, being a stranger to the arrangement evidenced by Exhibit A-3, is entitled in the circumstances of the case, to specific performance therefore falls to be decided here. English case-law oscillated and wavered for a considereble time between yielding to the demands of justice, commonsense and business convenience on the one hand and loyal adherence to the venerable old traditions of the common law on the other. It will be a profitless task to attempt to follow the course of English decisions during the last three centuries. Suffice it to say that Tweddle v. Atkinson, (1861) B. & S. 393. authoritatively decided that a stranger to a contract could not enforce it because there was no privity of contract between him and the promissor and he was a ranger to the consideration. Earlier decisions to the contrary like Button v. Poole, (1678) 2 Lev. 210. were considered to have been erroneously decided and devoid of authority. In Dunlop Pneumatic Tyre Co. Ltd. v. Selfridge Co. Ltd., L.R. (1915) A.C. 847. Viscount Haldane, L.C., enunciated the law of England in these terms : "My Lords, in the law of England certain principles are fundamental. One is that only a person who is a party to the contract can sue on it. Our law knows nothing of a jus quaesitum tertio arising by way of contract. Such a right may be conferred by way of property as, for example, under a trust, but it cannot be conferred on a stranger to a contract as a right to enforce the contract in persmam. A second principle is that if a person with whom a contract not under seal has been made is to be able to enforce it consideration must have been given by him to the promissor or to some other person at th promissor's request."

(3.) This passage was cited and followed by the Judicial Committee in Vandepitte v. Preferred Accident Insurance Co. of N. T, (1933) A.C. 70. After these weighty pronouncements one would have thought that the ghost of Button v. Poole, had been laid for ever. That was not to be. Not only was there a resurrection but Button v. Poole, strode so impressively on the legal stage in 1953 that I am tempted to quote the following passage from the judgment of Denning, L.J., in Drive Tour self Hire v. Strutt, (1953) 2 All E.R. 1475, 1482-1483.