Anakkaran Puthiyavallapal Mussan Haji vs Thiyan Thavara Koran and Others

Oldfield, J.—The lower Appellate Court has so for decided the case against the plaintiff-appellant, because it answered in the affirmative the question whether the person holding under a lease granted before a suit is bound by the decision against his lessor in that suit, although he is not a party to it. We cannot follow the lower Appellate Court in this; and in fact the only support adduced for its opinion is the quotation from an American author in Seshappaya v. Venkatramana Upadya 5 Ind. Cas. 732 . But the portion of that quotation at present material was not so for the purpose of the issue in that case and the learned Judges, in fact, after observing that it was inconsistent with the principle of English, Irish and Indian cases, declined to decide as to its correctness. On the other hand, although no case of tenancy has been shown to us, the principle applied to other cases of transfer in Sita Ram v. Amir Begnm 8 A. 3.4 , Joy Chandra Benerjee v. Steeneth Chutterjee 32 C. 377, Abdul Ali v. Msahhan Abdul Hussein 10 Ind Cas. 580 and Ramchandra Dhendo Kulkarni v. (sic) 66 Ind. Cas. 443 is in accordance with plaintiff''s contention. Adopting that principal, we must set aside the lower Appellate Court''s decree and remand the appeal to it for further hearing on its merits. Costs to date here and in the lower Appellate Court will be provided for in the decree to be passed. Stamp value will be refunded on application.

Ramesam, J.

I will only add that an illustration of the principle of privity by subordination Bigelow given is the Common Law case of feoffor and feoffes. This, he says, is Coke''s illustration. Then the mentions the case of landlord and tenant, for which no authority is cited. On the other hand, Black on Judgments, Volume II, Section 549, states the law in the other way, sitting (sic) v. Bless 36 California 489, so that, even in America, it is doubtful whether the law as to landlord and tenant is as stated by Mr. Bigelow. All other authority is against it. I agree in the order of my learned brother.