Arumuga Gounden vs Chinnammal

Sundara Aiyar, J.—This second appeal which is preferred by the defendant arises out of a suit by the plaintiff for recovering the value of

paddy secured to her for maintenance by an agreement between the defendant and his brother. The plaintiff says she was the concubine of the

defendant''s father. Whether she was an unmarried woman continuously kept by the defendant''s father or not does not appear. It is alleged here

that she was not such a concubine, but this position was not taken up in the courts below. There was a suit for partition between the defendant and

his brother. That suit was referred to arbitration, and while the case was before the arbitrators the parties put in a razinama in pursuance of which

an award was passed, and the award afterwards passed into a decree. According to this razinama the defendant and his brother agreed to give a

certain quantity of paddy every year for plaintiff''s maintenance. The plaintiff seems to have instituted a prior suit (i.e., prior to the present one)

against the defendant for the paddy due to her according to this agreement between the defendant and his brother, and that suit was settled by a

compromise. But what the terms of the compromise were do not appear. The suit was dismissed on account of the compromise. The plaintiff now

alleges that the paddy due to her was given her for two or three years but subsequently it was withheld by the present defendant. In the written

statement the plaintiff''s right to. recover what she claimed is denied. Her claim is characterised as fraudulent. There is no express denial of the

razinama in pursuance of which the award was passed. On the other hand, as I read the written statement, the defendant admits the razinama by

implication. The lower courts have passed a decree in favour of the plaintiff entitling her to recover the paddy sued for under the razinama. It is

contended here that the plaintiff not being a party to the arbitration proceedings and the award is not entitled to sue on the basis thereof. But the

award in this case was based on a contract of compromise between the defendant and his brother. The question therefore for decision is not

whether an award passed by the arbitrators in invitum in favor of a person not a party to the arbitration will entitle the party to maintain a suit on the

basis of it. The question really is whether the plaintiff is not entitled to sue on the agreement between the defendant and his brother which was

enforced by the award and subsequently by a decree of court. It must be remembered that the plaintiff was not a stranger to the family. Whether

she was one who would legally be entitled to enforce the claim for maintenance against the parties to the agreement or not, it was not denied in the

lower courts that she was a concubine of the defendant''s father. According to the decision in Shuppu Ammal v. Subramanyam ILR (1910) M.

238 which is binding on me, sitting as a single judge, a person in the position of the plaintiff in this suit would be entitled to maintain a suit for the

recovery of what is secured to her on the agreement of compromise though she was not a party to it. I am unable to agree with the argument for

the appellant that that judgment is based on the ground that there was a charge created in favour of the plaintiff in that suit. On the other hand the

learned Judges say : ""The decisions in Rukmabai v. Govind (1904) 6 Bom. L.R. 421 and Husaini Bagam v. Khwaja Muhammad Khan ILR

(1906) A. 151 justify an action by her on the ground that she is the beneficiary."" Then they proceed to mention another ground on which their

decision could be sustained, namely, that there was a charge created in favour of the plaintiff. The recent decision of the Judicial Committee of the

Privy Council in Khwajah Mahammad Khan v. Husaini Begum ILR (1910) A. 410 would seem to show that the rule that a person not a party to a

contract cannot sue to enforce any rights created by it is one which would require considerable modification in the circumstances of this country. I

should consider that if the rule is subject to exceptions a very proper class of exceptions would be where coparceners in a Hindu family agree that

payments should be made to female members for maintenance, and the exception need not be confined to cases where the maintenance provided

is in favour of persons who have a strict legal right to it. I am, therefore, of opinion that the plaintiff is entitled to sue for the enforcement of the right

created in her favour by the razinama. I ought to observe that the defendant raised a further plea that he had settled the plaintiff''s right to

maintenance. The statement is not quite specific, but I am inclined to think that it refers to her claim according to the razinama. If this construction

be right then the defendant would be taken to have acquiesced in and consented to abide by the terms of the razinama in so far as they related to

the plaintiff. Defendant''s plea is not a meritorious one. I am of opinion that he has also tailed to sustain it in law.

I dismiss the second appeal with costs.