HARE KRISHNA NAYAK Vs. FAKIR CHANDRA PAL

JUDGEMENT

(1.) The facts relating to this appeal lie within a narrow compass. They may be shortly stated as follows: Three persons, Atal Behari Mahala, ogendra Nath Mahala and Basanta Kumar Mahala, by the terms of a solenama, undertook to pay maintenance to a Hindu widow, by name Haramani Dasi. This undertaking was in exchange for her interest in lands formerly belonging to her deceased husband. The maintenance was not properly paid and Haramani Dasi assigned the arrears to one Harey Krishna Nayok. Subsequently, the three Mahalas sold the land to one Fakir Chandra Pal, who undertook by the terms of the sale deed to continue the maintenance to the widow. In the Court of the Munsif at Jhargram Harey Krishna Nayek sued the three Mahalas and Fakir Chandra Pal for the arrears of maintenance. He also added Haramani Dasi as a pro forma defendant. The three Mahalas did not appear, nor did Haramani Dasi. Fakir Chandra Pal, however, did, and strenuously contested the suit. In the result the Munsif decided that Fakir Chandra Pal was liable to the plaintiff for the greater part of the arrears. He also gave judgment against the Mahalas and Haramani Dasi in default of appearance. On appeal to the Subordinate Judge of the third Court at Midnapore, the decision of the Munsif was reversed. The learned Subordinate Judge for reasons which commended themselves to him (but do not commend themselves to us) came to the conclusion that the kobala under which the deceased husband's land passed to defendant 4 did not show that there was any consideration for the promise of defendant 4 to pay the maintenance. Moreover the learned Judge was of the opinion that the terms of the kobala showed no charge upon the land and that the only liability to the widow rested with the Mahalas.

(2.) It seems to us that the whole question turns on whether or not the facts giving rise to this litigation and the terms of the agreements entered upon can be brought within the well-known rule laid down in the English leading case of Tweddle V/s. Atkinson (1861) 1 B & S 393, a decision which has long been recognised in the Indian Courts as binding upon them. The principle of that case is this: that, where in a contract it can be shown that a third party holds a beneficial interest in its performance, and, where, the Court can properly appraise the position of the third party as one of a cestui que trust, the third party is entitled to sue for the purpose of obtaining a declaration enforcing his right. This rule is an equitable corrective of the Common law principle which lays down that a stranger to the consideration of a contract cannot sue upon the contract, as there is no legal nexus between the contracting parties and himself. We think that when Fakir Chandra Pal purchased the land from the Mahalas, he established himself in a fiduciary capacity, qua the payment of Haramani Dasi's maintenance, under the specific clause in the sale deed undertaking the payment; and we further consider that Haramani Dasi in these circumstances held a beneficial interest in the contract between the Mahalas and Fakir Chandra Pal; and that she was impliedly in the position of a cestui que trust vis-a-vis the contracting parties. It is not necessary for us to consider whether we come to this conclusion because of our agreement with the recent decision of Mr. Justice Lort- Williams and Mr. Justice M.C. Ghose in Khirode Bihari Datta V/s. Mangobinda 1934 Cal 682, a decision which was greatly pressed upon us. This case appears to us to be an extension of the rule in Tweddle V/s. Atkinson (1861) 1 B & S 393, on general grounds of equitable policy which do not necessarily apply to the case before us.

(3.) We see no reason to doubt that in law an assignment for value of a beneficial right under a contract can be enforced under the principle discussed, just as much as the right of the original assignor. The assignment of the arrears of maintenance by Haramani Dasi to the appellant was a transfer of an advantage under the contract; and this class of assignment has always been recognised in law. For these reasons we are of the opinion that the decision of the Subordinate Judge is wrong and that the original decision of the Munsif, save that Haramani Dasi will be dismissed from the suit, must be restored in the appellant's favour, with costs both here and below. As Haramani Dasi did not appear there will be no order for costs either for or against her.