ANAKKARAN PUTHIAVALAPPI MUSSAN HAJI Vs. THIYAN THAVARA KORAN

JUDGEMENT

(1.) THE Lower Appellate Court has so far decided the case against the plaintiff-appellant, because it answered in the affirmative the question whether a person holding under a lease granted before a suit is bound by the decision jigainst the lessor in that suit, although he is not a party to it. We cannot follow the Lower Appellate Court in this; and in fact the, only support adduced for its opinion is the question from an American author in Seshappaya v. Venkatramana Upadya (1899) I.L.R. 23 Mad. 459. But the portion of that quotation at present material was not so for the purpose of the issue in that case and the learned Judges in fact, after observing that it was inconsistent with the principle of English, Irish and Indian Cases declined to decide as to its correctness. On the other hand, although no case Of tenancy has been shown to us, the principle applied to other cases of transfers in Sita Rant V/s. Amir Begum (1886) I.L.R. 8 All 324 Jey Chandra Banerjee V/s. Sreenath Chatterjee (1904) I.L.R. 32 Cal 357 Abdul All V/s. Miakhau Abdul Hussain (1911) I.L.R. 35 Bom. 297 and Ramachandra Dhondo v. Malkappa (1916) I.L.R. 40 Bom. 679 is in accordance with plaintiff's contention. Adopting that principle, we must set aside the Lower appellate Court's decree and remand the appeal to it for further hearing on its merits. Costs to date here and in the Lower Appellate Court will be provided for in the decree to be passed. Stamp value will be refunded on application. Ramesam, J

(2.) I will only add that an illustration of the principle of privity by subordination Bigelow gives (6 edition at page 160) is the common law case of feoffor and feotfee. This he says is Coke's illustration. Then he mentions the case of land-lord and tenant for which no authority is cited. On the other hand Black on Judgments Vol. II Section 549 states the law in the other way citing Satterlee V/s. Bless 36 Cal. so that even in America it is doubtful whether the law as to landlord and tenant is as stated by Mr. Bigelow. All other authority is against it. I agree in the order of my learned brother.