MUNISAMI NAICKEN Vs. VEDACHALA NAICKEN

JUDGEMENT

(1.) This case raises three points: first, as to whether the plaintiff can sue, that is to say, he deriving title from the widow in the case, would she have been able to sue in the position that was created by the document Ex. A? For the moment I would describe it simpliciter as the document. There is ample authority for the proposition that in this country, and indeed in a certain class of cases in England where a contract is made between A and B for the benefit of C, C is entitled to sue the defaulting party. It is unnecessary to cite authorities, but the principle is finally established for this country by the decision of the Privy Council in Khwaja Muhammad Khan V/s. Husaini Begum [1910] 82 All. 410. It is moreover quite clear that one must in applying the principles of the English Common law and not rules of the nature of procedure, remember one is applying them to a totally different subject-matter, to a state of things which is created not entirely by the acts of the parties, but by the necessary consequence of the relation in which they stand to one another by virtue of the provisions of Hindu law. All I desire to say is that I think that in view of that, the provisions of law in such matters should be applied with greater flexibility than they would be applied in England and that it is quite possible to argue that such a case as this, if it occurred in England, would be covered by the general principle I have referred to. That is the first point, and I am of opinion that the plaintiff in this case was entitled to sue on the ground that he stood in the shoes of a person who would have herself been entitled to sue as benefited by Ex. A.

(2.) The second point, and the one that impressed me when I heard this case sitting alone and caused me to post it before a Bench, was the decision in Hira Singh V/s. Ganga Sahai [1884] 6 All. 322. The effect of that was said to be that, whatever might be the position with regard to a contract, if you had an award no one who is not a party to the submission could take advantage of the award or seek its enforcement in a Court of law. Language is used, no doubt, by their Lordships which does seem very strongly to point in that direction but I have come to the conclusion that it is a, misnomer to call this document an award at all. It is a familiar principle in English law that a judgment by consent will, in many cases, operate as a contract. The very form of the document here shows that the so-called arbitrators functions, though they might have existed were never called into existence. The parties presented a razinama which was. nothing more than a contract and the person who might have had jurisdiction in other circumstances simply said: If you will agree, there you are; there is the document and I give my sanction to it.

(3.) It appears to me that the whole motive power of what happened is derived not from anything the so-called arbitrator did, but from the words of the razinama which simply amounts to the words of the contract between the parties. I am not sure that Hira Singh v. Ganga Sahai [1884] 6 All. 322 might not be answered in another way which has been suggested to me by my learned brother, namely that this might only be a contract but might well be taken to be a partition in which case I think the boldest man would not suggest that it fell within the mischief of Hira Singh V/s. Ganga Sahai [1884] 6 All. 322.