KHIROD BEHARI DUTT Vs. MAN GOBINDA

JUDGEMENT

(1.) This appeal arises out of a suit for arrears of rent. The facts are not disputed. The plaintiff is the usufructuary mortgagee of the Zamindar (defendant 7). The Dutta defendants (defendants 1 to 6) are the Zamindar's tenants of the jama in suit consisting of seven moujas in pergana Shyamsundarpur. The Panda defendants (defendants 8 to 17) held the land in darmokarari lease under the Dutta defendants by a kabuliyat wherein it was stipulated that the Pandas would pay the Dutta's mokarari rental direct to the Zamindar and would indemnify the Duttas against any claim made by him. Further it was stipulated as security for the due discharge of my liabilities for the said jama and the said Trust (Barat) as described above in the present kabuliyat, I do hereby create a charge (pratibandhak) upon my mokarari interest in the moujas of Jharya and Shyampur, both in my khas possession,

(2.) This is an agreed translation. The kabuliyat was acted upon by all the parties interested, in respect of former payments of rent. That is to say the Pandas used to pay the Zamindar's rent direct, and the arrangement was accepted by him. The sole question for decision is, whether the plaintiff can rely upon this contract which was made between the Pandas and the Duttas, and get a decree for his rent against the Pandas. On this point what was the old rule of the English Common law is beyond dispute. No one but the parties to a contract can be bound by it or entitled under it : Anson, Law of Con-tract, (Edn. 16) 274. A third person cannot become entitled by the contract itself to demand the performance of any duty under the contract, Pollock, Principles of Contract: (Edn. 9), 212, 220. No man can enforce a contract to which he is not a party, even though he has a direct interest in the performance of it : Salmond and Winfield, Law of Contracts, 18. The law was stated in positive and unmistakable terms in Twaddle V/s. Atkinson (1861) 1 B and S 393, and in Dunlop Tyre Co. v. Selfridge (1915) AC 847, Viscount Haldane, L.C., said (p. 853): 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 jusquaesitumtertio arising by way of contract. But to this rule Courts of Equity introduced exceptions. 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 : Leake on Contracts (Edn. 7), P. 301.

(3.) The necessity for the Common law rule arose out of the implications of the old Common law action in assumpsit. The reason for the exceptions was the necessity to provide some escape from the harsh and inelastic bonds of the old rule. Like so much else in the progressive growth of English law, this expansion was achieved by means of the dual fictions of trust and agency. In India there are no reasons legal, historical or otherwise, why we should shrink from a frank recognition of this fact. A careful examination of the English decisions on the point leads inevitably to the conclusion that they were based upon fiction. This tendency began prior to the decision in Twaddle V/s. Atkinson (1861) 1 B and S 393. Thus in Dutton V/s. Poole, (1677) 2 Leave. 210, a donee beneficiary was allowed to sue in assumpsit, though she was not a party to the contract and gave no consideration. But its rapid extension was due to Courts of Equity which recognised a right in a contract beneficiary. Thus in Tomlinson V/s. Gill, (1756) Ambler 330 the defendant had promised a widow that if she would consent to his being appointed a co-administrator with her deceased husband's estate, he would pay the debts of the deceased to the extent of any deficiency in the assets. The plaintiff, a creditor of the deceased, brought a bill in equity to enforce this promise and obtained a decree on the ground, as stated by Lord Hard-wicke, that the promise was for the benefit of the creditors, and the widow was a trustee for them.