KOSURI RAJAGOPAL RAJA Vs. DALTA RADHAYYA

JUDGEMENT

(1.) The plaintiff and defendants Nos. 1 and 2 are sisters of defendants Nos. 3 to 5. By an instrument of partition entered into between defendants Nos. 3 to 5 it was stipulated that certain land, was to be enjoyed by the mother of the parties for her life and to be taken by her daughters, that is the plaintiff and defendants Nos. 1 and 2, after her death. The mother is now dead. This suit by the plaintiff is to recover one-third of that property, defendants Nos. 1 and 2 being entitled to the remaining two-thirds.

(2.) Defendants Nos. 3 to 5, the brothers, contend that the plaintiff not being a party to the partition instrument has no cause of action for the recovery of the property. They plead that by a subsequent arrangement soon after the partition they cancelled the allotment to the mother and sisters. It was suggested during the course of the argument here that the partition deed never became operative, but we do not read the written statement as raising this question. The issue was whether the arrangement was subsequently cancelled. The lower Appellate Court has given the plaintiff a decree and defendants Nos. 3 to 5 are the appellants in this Court.

(3.) We are of opinion that the decision appealed from is right. To the general rule that persons who are not parties to a contract have no right of action based on it, there are several exceptions. The Privy Council has recently pointed out that the rule must be applied to this country with considerable exceptions. In that case a Muhammadan wife was held entitled to sue upon a contract entered into between her father and her husband s father before the marriage. We are of opinion that where at a partition between the members of a joint family provision is made for female members of it, it must be held that as the contract was entered into for the benefit of those who are provided for by the instrument of partition, they are entitled to the benefit of it and to sue upon it. This principle has been affirmed by this Court in Shuppu Ammal v. Subramaniam 33 M. 238 : 19 M.L.J. 739 : 4 Ind. Cas. 1083. See also Arumuga Goundan v. Chinnammal 10 M.L.T. 214 : 21 M.L.J. 918 : (1911)2 M.W.N. 524 : 12 Ind. Cas. 185. The decisions of other High Courts have also affirmed the principle. See Rakhmabai v. Govind Moreshwar 6 Bom. L.R. 421; Protab Narain Muherjee v. Sarat Kumari Debi 5 C.W.N. 386.