JEKISONDAS AND HARKISONDAS Vs. RANCHODDAS BHAGVANDAS

JUDGEMENT

(1.) This case has given rise to a very interesting argument. The suit was brought by the plaintiff to recover damages from defendant No. 1, the father of a girl who had been promised in marriage to the plaintiff and actually betrothed and from defendant No. 2, on the allegation that he had procured the breach of the prior contract with the plaintiff and induced the defendant No. 1 to consent to the marriage of his daughter with the defendant No. 2 s son.

(2.) The lower Courts found that although the son of the defendant No. 2 was a major, the defendant No. 2 had, to use the words of the Court of first appeal, a hand in bringing about the breach of the first contract.

(3.) The case is virtually the same in principle as that of Khimji Vasanji v. Narsi Dhanji(1914) 17 Bom. L.R. 225., in which sitting alone on the Original Side of this Court I examined critically the whole English case-law out of which the present doctrine has been slowly evolved. Looked at merely as a theoretical discussion I see no reason yet to modify any part of the reasoning or conclusions which I then used and reached. Though that point did not engage my attention in Khimji s case, it struck me in the course of the argument here that an additional difficulty would be caused if the plaintiff in actions of this kind joined a mere tort- feasor with the breaker of the contract. I find that this was done in two comparatively recent cases, De Francesco v. Barnum (1890) 45 Ch. D. 430 and Fred Wilkins and Bros Limited v. Weaver (1915) 2 Ch. 322. The question does not appear to have been even raised much less to have occasioned the learned Judges concerned any doubt or difficulty. The least examination will show that the causes of action are totally different. I should have thought that on objection taken to the array in such a suit the plaintiff would surely have been put to his election either to proceed against one defendant for breach of contract, or against the other on the case.