MANNATH VEETTIL ITTI PANKU MENON Vs. THAZHETH MELADEM DHARMAN ACHAN AVERGAL, AND KEIZHEKKEMELADATHIL DHARMAN ACHAN

JUDGEMENT

(1.) This appeal raises a question of some difficulty. In 1904 the plaintiff, jenmi, who was entitled to redeem in 1905 a kanom granted by him to the 2nd defendant in 1893, executed a melcharth in favour of the 1st defendant by which the latter became entitled to redeem the 2nd defendant on the expiry of his kanom and to hold the lands himself on a fresh kanom. The kanom debt payable to the 2nd defendant on redemption was subject to reduction by the amount of the arrears of rent due from the 2nd defendant to the plaintiff under the kanom even though a suit for the arrears had become barred, and the 1st defendant was required on redemption to deduct this amount from the kanom debt and pay it over to the plaintiff, or in other words to collect the arrears due to the plaintiff. He did nothing till 1909 when he assigned his rights under the melcharth to the kanomdar, the 2nd defendant, stipulating at the same time that the 2nd defendant should pay the plaintiff the arrears of rent due under the kanom which he had bound himself to collect and pay on redeeming the 2nd defendant.

(2.) One of the questions argued before us is Whether the plaintiff is entitled to sue on this contract made between the 1st defendant and 2nd defendant. As regards this I agree with Abdur Rahim, J. that he cannot, and that the question is concluded by the recent decision of the Privy Council in Jamna Das v. Ram Autar Pande (1911) I.L.R. 34 A. 63. (P.C.) where Lord Macnaghten delivering their Lordships judgment held that a purchaser s contract with his vendor to pay off a mortgage on the property sold could not be enforced by the mortgagee. "The mortgagee has no right to avail himself of . that. He was no party to the sale. The purchaser entered into no contract with him and the purchaser is not personally bound to pay off the mortgage debt." This, in my opinion, recognises the general applicability in India of the common law rule that the parties to a contract are the proper parties to sue on it, which was also the rule in equity except in so far as equity made an exception as explained in Gandy v. Gandy (1885) L.R. 80 Ch. D. 57-69 in cases where the contract was made for the benefit of a third party and in such circumstances as to give rise to a trust in his favour which is not the case here. In the earlier case of Kwaja Muhammad Khan v. Husaini Begman (1910) I.L.R. 32 All. 410. (P.C.) their Lordships held that this common law rule was not applicable to the facts and circumstances of that case in which the agreement executed by the defendant had specifically charged immoveable property for the allowance which he had bound himself to pay to the plaintiff then a minor in contemplation of her marriage. Their Lordships observed that, although no party to the document, she was clearly entitled in equity to proceed to enforce her claim, and observed that in India, where marriages are contracted for minors by parents and guardians, it might occasion serious injustice if the common law doctrine was applied to agreements or arrangements entered into in connection with such contracts. It is clear however from the later case that their Lordships did not intend to lay down that the common law rule had no application to India. In Tweddle v. Atkinson (1861) 1 Band Section 393, to which their Lordships referred, reliance had been placed on certain old cases in which persons not parties to the contract had been allowed to maintain an action in assumpsit apparently, as observed by Crompton, J. on the ground that the action of assumpsit was in its origin an action of trespass on the case. In Gandy v. Gandy (1885) L.R. 30 Ch. D. 57 Bowen, L.J. considered that it would be mere pedantry now to go through the history of that idea; and this is probably why their Lordships in the case we are considering disposed of the case of Tweddle v. Atkinson (1861) 1 B & S., 593 with the remark that it was an action of assumpsit; but, as I have already said, they did not mean by this that the common law rule on the basis of which that action was dismissed was generally inapplicable in India.

(3.) This however does not appear to me to dispose of the present case. The assignment by the 1st defendant of his right under the melcharth to the 2nd defendant has been recognised by the plaintiff who by the notice Exhibit B, dated 8th January 1912 demanded payment of the arrears from the 2nd defendant by reason of the assignment and has also framed the present suit upon it; and, even if it could be said that the melcharth contained an implied covenant against assignment to the 2nd defendant, I do not think the validity of the assignment can now be questioned. I think however that by reason of this assignment the 2nd defendant became bound to redeem the old kanom and to hold the demised lands for a further term for the old kanom debt less the amount of arrears which were due at the date of redemption, and that the plaintiff jenmi when he came to know of the assignment, which was apparently shortly before he served the notice Exhibit B on the 2nd defendant, became entitled to insist on his so redeeming the old kanom and to treat the arrears as money in the 2nd defendant s hands had and received to the plaintiff s use and to recover it under Article 62 and I think he must be taken to have exercised this right when he demanded payment of the arrears from the 2nd defendant by Exhibit B on the basis of the assignment. I do not think we are bound to treat the redemption as having taken place on the date of the assignment by the 1st defendant to the 2nd defendant seeing that the arrears were not paid over to the plaintiff as they should have been. Even if we were, I should be prepared to hold that under Article 62 read with Section 18 of the Limitation Act time would not run against the plaintiff so long as he was kept in the dark as to the manner in which his rihgts had been affected by the assignment of the 1st defendant s melcharth rights to the 2nd defendant.