Sm. Janaki Bala Debya vs Maheswar Das

Chatterji, J.—This is an appeal by the plaintiff in a suit for recovery of arrears of maintenance. The plaintiff is the widow of the only predeceased son of Bidyadhar of whom the defendant is the surviving brother. Some years after Bidyadhar''s death his widow Sakuntala brought a suit (No. 224 of 1921) u/s 9, Specific Relief Act, against the defendant for possession of certain lands on the allegation that since the death of her huaband who was separate from the defendant, she had been in possession of the disputed lands, but the defendant wrongfully dispossessed her therefrom. In that suit a compromise decree was passed on 16th December 1921 to the effect that the defendant would remain in exclusive possession of all the lands standing in his name or in the name of his deceased brother and that he would pay maintenance in kind to Sakuntala during her lifetime, and after her death he would give similar maintenance to her daughter-in-law, the present plaintiff, to the extent of 21 aras of paddy, 6 kuris of mug and 2 kuris of biri every year and if he failed to deliver the grains he would be liable to pay the equivalent market value of the same.

The plaintiff''s case is that in accordance with the terms of the compromise decree the defendant was giving maintenance to Sakuntala during her lifetime and after her death he also gave the plaintiff maintenance for some years, but subsequently he stopped payment. Accordingly she brought the present suit for recovery of arrears of maintenance for the years 1342-41 Fs. claiming Rs. 562-20 as the market value of the grains, together with interest at one per cent, per mensem, total Rs. 650. The claim was laid entirely on the basis of the terms of the compromise decree.

The suit was resisted by the defendant on all possible grounds, but the Munsif gave the plaintiff a decree, reducing interest to six per cent, per annum. On appeal by the defendant the learned Subordinate Judge dismissed the entire suit, holding that the plaintiff, not being a party to the compromise, was not entitled to maintain the suit. On the merits of her claim, however, he held that it was correct except that she would not be entitled to interest; hence this second appeal by the plaintiff. Mr. B.C. De on behalf of the appellant oontends that the plaintiff, although not a party to the compromise, is entitled to obtain the maintenance from the defendant. He relies on Section 23(c), Specific Relief Act, (Act 1 of 1877) and on the decisions in Khwaja Muhammad Khan v. Husaini Begam 32 All. 410, Awadh Sarju Prasad Singh v. Sita Ram Singh 29 All. 37 , Protap Narain Mukerjee v. Sarat Kumari Debi 5 C.W.N. 386, Debnarayan Dutt v. lal Ghose AIR 1914 Cal. 129 and Khirod Behari Dutt Vs. Man Gobinda and Ors, ; Mr. B.C. De also refers to certain English decisions, but as I shall presently show, this case is clearly governed by the provisions of Section 23(c), Specific Relief Act. That section provides that:

Except as otherwise provided by this chapter the specific performance of a contract may be obtained by....(c) where the contract is a settlement on marriage, or a compromise of doubtful rights between members of the same family, any person beneficially entitled thereunder.

The learned Subordinate Judge refers to this section, but for reasons which it is very difficult to follow he holds that it is not applicable. He says:

The plaintiff was no party to the agreement whatsoever and in fact there was no family arrangement entered into by this compromise. In a family arrangement all the members of the family should be parties and if all the members of the family are parties to the compromise and settle their doubtful rights by virtue of the compromise certainly any one of them beneficially entitled under the terms can obtain a specific performance of the contract. This is clearly not the case here.

The suit u/s 9, Specific Relief Act, was brought on the allegation that the then plaintiff''s husband Bidyadhar was separate from the defendant. On the other hand the defendant apparently asserted, as would appear from the compromise decree, that he was entitled to remain in exclusive possession of all the lands belonging to himself and his brother. In this case also he asserts that his brother was joint with him. There can be no doubt that the real dispute which led to the institution of that suit was whether the two brothers were joint or separate. If they were joint, the defendant would be entitled by survivorship to the entire joint family properties. On the other hand if they were separate, Bidyadhar''s widow would be entitled to separate possession of the properties left by him. Even if the brothers were joint, Bidyadhar''s widow and daughter-in-law would be entitled to maintenance out of the properties left by Bidyadhar. The effect of the compromise was to settle the dispute between the members of the family. The compromise was obviously "a compromise of doubtful rights between members of the same family" as contemplated by Section 23(c), Specific Relief Act. Mr. B.N. Mitter on behalf of the respondent suggests that all the members of the family, that is to say, the sons of the defendant and the present plaintiff not being parties to the compromise, it cannot be regarded as a family settlement, within the meaning of Section 23(c). He has not been able to support this contention by any authority. Here the position is quite clear. There were two branches of the family. One branch was represented by the defendant and the other branch (assuming that it was separate) by the widow Sakuntala. Having regard to the nature of that suit, it cannot possibly be suggested that the other members of the family were necessary parties to it. Section 23(c) speaks of "members of the same family." The compromise was arrived at between parties who for the purpose of the suit represented the two branches of the family. It is difficult to see why such a compromise will not be a family settlement within the meaning of Section 23(c). Under the terms of the compromise the defendant clearly agreed to give the plaintiff maintenance at the rate claimed by her. In view of the provisions of Section 23(c) the plaintiff is entitled to enforce the terms of the compromise decree against the defendant.

In the Privy Council case in Khwaja Muhammad Khan v. Husaini Begam 32 All. 410, the facts were these: In accordance with an arrangement made between the defendant and the father of the plaintiff (then a minor) on the occasion and in consideration of her marriage with the defendant''s son, (also a minor), the defendant executed a document whereby he agreed to continue to pay the sum of Rs. 500 a month in perpetuity to the plaintiff for her pandan (betel nut expenses, etc.) from the date of the marriage, i.e., from the date of her reception, and made the payment of the allowance a charge on certain immovable property specified in the agreement. The plaintiff''s reception into her husband''s house took place in 1883. The husband and wife lived together till 1896, when owing to difference she left her husband''s house and resided elsewhere, when the defendant stopped the payments. The plaintiff then sued the defendant to recover arrears of the allowance. It was held that the plaintiff, though not a party to the agreement, was entitled in equity to enforce her claim. Their Lordships referred to the case in Tweddel v. Atkinson (1861) 1 B. & Section 393, which laid down the rule of common law in England that a stranger to a contract cannot sue on it, though he is entitled to some benefit under it. With reference to this case, their Lordships said:

First, it is contended, on the authority in Tweddel v. Atkinson (1861) 1 B. & S. 393, that as the plaintiff was no party to the agreement, she cannot take advantage of its provisions. With reference to this it is enough to say that the case relied upon was an action of assumpsit, and that the rule of common law on the basis of which it was dismissed is not, in their Lordship''s opinion, applicable to the facts and circumstances of the present case. Here the agreement executed by the defendant specifically charges immovable property for the allowance which he binds himself to pay to the plaintiff; she is the only person beneficially entitled under it. In their Lordships'' judgment, although no party to the document, she is dearly entitled to proceed in equity to enforce her claim.

The reasoning adopted by their Lordships applies with still greater force to the present case. Here the plaintiff as a Hindu widow was entitled to maintenance out of the property in which her husband was coparcener at the time of his death. The defendant by survivorship became entitled to the exclusive possession of the entire joint family property. Under the Hindu law he was bound to maintain the present plaintiff. By the terms of the compromise he agreed to do what he was bound in law to do. There can be no stronger case in which a person beneficially entitled under a contract, though he or she is not a party to it, is entitled in equity to enforce the contract.

In Awadh Sarju Prasad Singh v. Sita Ram Singh 29 All. 37, the facts were these: By a deed of partition executed by the adult members of a joint Hindu family it was agreed that a certain minor member of the family, represented in the execution of the deed by his father, should receive a certain share in a particular village by right of primogeniture, and the agreement further recited that the member in question had been put into possession of the share allotted to him. It was further agreed that, inasmuch as the property thus dealt with was subject to two mortgages, the other members of the family would be responsible for the payment of the mortgage debts and would indemnify the recipient of the mortgaged property in case of proceedings being taken against such property for satisfaction of the mortgage debts. The minor after attaining majority brought a suit to compel reimbursement by the other members of the family. It was held that the partition deed was enforceable in favour of the plaintiff, just as much as, if just and equitable, it would have been binding upon him, and that the plaintiff was entitled to sue for any benefit which the deed purported to secure to him. It was further held that on a construction of the partition deed the plaintiff was also entitled to sue, having regard to the terms of Section 23(c), Specific Relief Act. This decision, so far as it was based on Section 23(c), Specific Relief Act, is applicable to the facts before us.

The case in Protap Narain Mukerjee v. Sarat Kumari Debi (01) 5 C.W.N. 386 was decided with reference to Section 23(c), Specific Relief Act. There was a previous suit to set aside a deed of partition between the members of the same family. The suit was compromised, one of the terms of the compromise being that some of the parties to the compromise who were brothers would pay Rs. 5000 to each of their two sisters who were not parties to the compromise. One of these sisters sued to recover Rupees 5000 from the brothers. The defence was that the plaintiff, not being a party to the compromise, was not entitled to maintain the suit. This defence was overruled. Their Lordships (Maclean C.J. and Banerjee, J.) held that the case fell u/s 23(c), Specific Relief Act. This case is almost on all fours with the present.

In the case in Debnarayan Dutt v. Chunilal Ghose AIR 1914 Cal. 129 the facts were that the transferee of a debtor''s liability acknowledged his obligation to the creditor for the debt to be paid by him under the provisions of the registered instrument conveying to him all the moveable and'' immovable properties of the original debtor, and the acknowledgment was communicated to the creditor and accepted by him. Upon these facts Jenkins C.J. and Mookerjee, J. held that the obligation undertaken by the transferee was for, and intended to be for, the benefit of the creditor and that the creditor was entitled to sue the transferee on the registered instrument. The facts, therefore, are quite different from those before us and the case, in my opinion, is not in point. However, Sir Lawrence Jenkins C.J. observed:

More than that we now have ample authority for saying that the administration of justice in these Courts is not to be in any way hampered by the doctrine laid down in Tweddel v. Atkinson 1861 1 Bom 393. That I take to be the result of the decision of the Privy Council in the recent case, Khwaja Muhammad Khan v. Husaini Begam 32 All. 410.

This remark, as I shall presently show, was criticised in several subsequent cases. For the present, purpose, however, it is unnecessary to pronounce any opinion as to how far that remark is correct.

In Khirod Behari Dutt Vs. Man Gobinda and Ors, which was decided by Lort-Willlams and M.C. Ghose, JJ., Lort-Williams, J. who delivered the leading judgment went further and said:

There is ample authority for saying that the administration of the law of contract in British India is not affected by the doctrine laid down in Tweddel v. Atkinson 1861 1 Bom. 393, that only a person who is a party to the contract, can sue upon it. In British India the aim is to do complete justice in one suit.

In that case a zamindar sued upon a contract made between his mokarraridar and darmokarraridar, whereby the latter undertook to pay the mokarraridar''s rent direct to the zamindar. It was held that the zamindar could obtain a decree for his rent direct against the darmokarraridar. The facts being thus quite distinguishable, the decision in my opinion has no application here. It is therefore unnecessary to consider how far the view taken by Lort-Williams, J. is correct. It is worthy of notice that Ghose J. in his judgment did not endorse the view of Lort-Williams J. though he agreed to the order passed.

The learned Subordinate Judge has relied on the Full Bench decision of the Madras High Court in Thirumulu Subbu Chetti Vs. Arunachalam Chettiar, and on the decision of this Court in Achuta Ram and Others Vs. Jainandan Tewary and Others, . Mr. B.N. Mitter who appears on behalf of the respondent has further relied on Jiban Krishna Mullik Vs. Nirupama Gupta and Another, , Krishna Lal Sadhu and Another Vs. Mt. Promila Bala Dasi, , Adhar Chandra Mondal Vs. Dolgobinda Das and Others, , District Board Vs. Rai Bahadur Chandra Ketu Narayan Singh, and The National Petroleum Company Ltd. Vs. Popatlal Mulji, .

It may be mentioned at the outset that in all these cases there was a discussion as to whether the Privy Council case in 32 All. 4101 had the effect of laying down that the principle in Tweddel v. Atkinson (1861) 1 B&S 393 has no application in India; but I must ob'' serve that their Lordships of the Privy Council in the last mentioned case did not intend to lay down any such general proposition but were careful enough to say that the principle in Tweddel v. Atkinson (1861) 1 B&S 393 was not applicable to the facts and circumstances of that particular case.

In the Full Bench case in 53 Mad. 2707 their Lordships reviewed all the leading authorities on the point and laid down:

Where on a contract between A and B, B agrees to pay a sum of money to C and no more circumstances appear, B being a stranger to the contract, cannot sue C for the money, though all the parties to the contract are parties to the suit. This is the general rule, though some exceptions to the rule, arise under the following circumstances e.g., (a) where B afterwards agrees with C to pay Aim direct or becomes estopped from denying his liability to him personally, (b) where the contract between A and B creates a trust in favour of C, (c) where the contract charges the money to be paid out of some immovable property or (d) where it is due to C under a marriage settlement, partition or other family arrangement.

It is thus clear that though the general rule, as kid down in Tweddel v. Atkinson (1861) 1 B&S 393 is that a stranger to a contract cannot sue on it, there are certain recognized exceptions. The last exception mentioned in the Madras Full Bench case clearly covers the present case, because here, as I have already found, the compromise was nothing else but a family arrangement.

In Achuta Ram and Others Vs. Jainandan Tewary and Others, , a mortgagor subsequent to the execution of the mortgage sold the mortgaged property to a third party who under the terms of the sale deed agreed to pay up the mortgage. The plaintiff mortgagee, however, was not a privy to this contract. The plaintiff asked for a personal decree not only against the mortgagor but also against the purchaser on the terms of the sale deed. It was held that the purchaser was not personally liable. This case is quite distinguishable. The purchaser of a mortgaged property is entitled under the provisions of Section 55(5)(b), T.P. Act, to retain out of the purchase money the amount of any incumbrance on the property existing at the date of the sale and is bound to pay the amount so retained to the person entitled thereto. This liability, however, is not personal, but attaches to the property. The covenant in the sale deed in the above case that the purchaser would pay off the mortgagee did no more than give effect in express terms to the implied statutory liability. The liability under the covenant, like that under the statute, would arise only as between the vendor and the purchaser and would not give any right to the mortgagee to make the purchaser, personally liable. Consequently, the position of the purchaser is quite different. It may be observed that Foster, J., in his separate judgment (the leading judgment being by Buoknill J.) refers to a class of cases in which minors or other third parties can sue under family or marriage settlements, although they may not be parties to those settlements. The present case comes within this class.

In Jiban Krishna Mullik Vs. Nirupama Gupta and Another, , A, a patnidar, created a darpatni in favour of B for Rs. 244 per annum B created a sepasni by an instrument in favour of O for Rs. 344 per annum, out of which Rs. 244 was to be paid to A for the darpatni rent, and Rs. 100 was to be paid to B, the darpatnidar. C paid the Rs. 244 to A for some time, and then fell in arrear. In a suit brought by A against C for rent, it was held that mere payment of a sum of money by C to A could not be made the foundation of a legal obligation on the part of 0 to pay to A a like sum in like circumstances in the future and that there was no consideration passing to C from A to bind any such agreement. Page, J. who delivered the leading judgment (Cuming J. agreeing) criticised the remark of Jenkins C.J. in Debnarayan Dutt v. Chunilal Ghose AIR 1914 Cal. 129 , and observed that the last mentioned decision must be taken to have been based upon the ground that under the contract a trust was created in favour of the third party. However, the facts of the case in Jiban Krishna Mullik Vs. Nirupama Gupta and Another, have no resemblance to those of the present case.

In Krishna Lal Sadhu and Another Vs. Mt. Promila Bala Dasi, , the facts were that on the death of the plaintiff''s husband who had effected a life insurance policy certain decree-holders who obtained a decree against his sons attached the money payable under the policy. The plaintiff who was the nominee of her husband under the policy preferred a claim and that claim having been dismissed she brought a suit. It was held that the plaintiff was not entitled to realise the money from the insurance company. The plaintiff relied on the terms of the policy, but as she was no party to the contract, her claim was held to be unenforceable. Their Lordships proceeded upon the general principle that a person who is not a party to the contract cannot enforce it. Rankin C. J, expressed some doubt on the observation made by Jenkins C.J. in the earlier case in Debnarayan Dutt v. Chunilal Ghose AIR 1914 Cal. 129, and observed:

In my judgment, it is erroneous on the basis of that case, Khwaja Muhammad Khan v. Husaini Begam 32 All. 410, or on the observations of Jenkins C.J., in Debnarayan Dutt v. Chunilal Ghose AIR 1914 Cal. 129 to suppose that in India persons who are not parties to a contract can be admitted to sue thereon, except where there is an obligation in equity amounting to a trust arising out of the contract. I say nothing as to whether special rules of law may be applicable to communities among whom marriages are contracted for minors by parents and guardians. But putting aside such cases, I see no reason to think that the law in India contains a series of exceptions to the principle that a contract can only be sued upon as such by a party thereto.

It is to be observed that in that case their Lordships were not required to consider the provisions of Section 23(c), Specific Relief Act. Therefore, the decision cannot be regarded as an authority, so far as the present case is concerned.

In Adhar Chandra Mondal Vs. Dolgobinda Das and Others, it was held that an agreement between the darpatnidar, and patnidar, providing for payment of the rent of the patni taluk by the darpatnidar, does not entitle the zamindar to enforce the covenant in the darpatni kabuliat against the darpatnidar, and any payment made by the sepatnidar direct to the superior landlord to save the tenure from sale for arrears of rent is a voluntary payment, so far as the darpatnidar is concerned, and cannot be recovered from the latter. D.N. Mitter, J., who delivered the judgment (Patterson J. concurring), after reviewing the authorities said:

The rule deducible from the authorities above cited is that it is a general principle both at Common law and at equity that a stranger to the contract cannot sue although the stranger takes benefit under it. There are, however, several apparent exceptions from this principle.

Exceptions to the general rule were thus recognized by this decision. Section 23(c), Specific Relief Act, is one of the statutory exceptions.

In District Board Vs. Rai Bahadur Chandra Ketu Narayan Singh, Biswas, J. who delivered the leading judgment (Henderson J. agreeing), Stated the law to be that "neither on principle nor on authority and neither in law nor in equity can a stranger to a contract sue thereon, apart from any reference to trust or agency simply by virtue of the fact that the contract is for his benefit."

Upon the facts, however, the plaintiff was held entitled to sue on a contract to which he was not a party. The facts were quite different and their Lordships had no occasion to refer to Section 23(c), Specific Relief Act. This case is therefore of no avail to the defendant.

In The National Petroleum Company Ltd. Vs. Popatlal Mulji, the facts may be thus briefly stated. As the result of certain dealings between the plaintiff and defendant 2 the latter became indebted to the former in a sum of Rs. 3649-8-0. Besides this, the plaintiff had deposited with defendant 2 the sum of Rs. 1000 at the time of the commencement of the transaction in accordance with the terms of the agreement entered into between them, the'' amount deposited to be refunded when the agreement would be terminated. Subsequently defendant 2 assigned his business to defendant 1 company which took over all the assets and liabilities of the business. As part of the consideration for the sale, defendant 1 company undertook to pay, satisfy and discharge all debts and liabilities of defendant 2. Shortly afterwards, the plaintiff gave notice terminating his agreement with defendant 2 and then he demanded from defendant 1 the return of his deposit of Rs. 1000 and payment of the balance due to him from defendant 2. Defendant 1 having failed to comply with this demand, the plaintiff brought the suit. One of the defences taken by defendant 1 was, the plaintiff, not being a party to the agreement between defendant 1 and defendant 2 was not entitled to sue on that agreement. The trial Judge, overruling the defences, decreed the suit. On appeal Beaumont C.J., and Rangnekar, J. dismissed the suit against defendant 1, principally on the ground that "the plaintiff having elected to pursue his claims against defendant 2 to judgment has abandoned any claim he preferred against defendant 1." However, their Lordships proceeded to consider whether the plaintiff could sue on the agreement between defendant 1 and defendant 2 to which he was not a party. While reviewing the authorities bearing on the point, their Lordships expressed their dissent from the decision in Debnarayan Dutt v. Chunilal Ghose AIR 1914 Cal. 129 and Khirod Behari Dutt Vs. Man Gobinda and Ors, . In their Lordships'' view "the general rule is that only those persons can sue upon a contract who are parties to it. This rule is subject to certain well recognized exceptions, e.g., where a person has been allowed to sue on a contract to which he is not a party on the ground that he claims through a party to the contract, or that he is in the position of a cestui que trust or that he is principal suing through an agent or that he claims under a family settlement."

A family settlement is thus one of the exceptions, and the present case falls within that exception.

Reference may also be made to the case in Jahandar Bakah v. Ram Lal 1910.37 Cal. 449 in which Mookerjee and Teunon, JJ., observed:

In England, the rule is well settled that, subject to certain exceptions which may briefly be described as cases of trust....quasi contract....or near relationship....where two persons make a contract in which one of them promises to confer benefits upon a third party, the latter cannot enforce performance thereof.

Upon the authorities it may be taken to be well settled that the rule in Tweddel v. Atkinson (1861) 1 B&S 393 is subject to certain exceptions. Whether the present case falls within those exceptions or not, though I think it does, is quite immaterial, because it clearly comes u/s 23(c), Specific Relief Act.

In my view, therefore, the plaintiff, though not a party to the compromise decree, is entitled to enforce (its terms against the defendant.

The learned Subordinate Judge has held that if the plaintiff''s suit were otherwise maintainable, he would have decreed the claim except for the interest. So far as interest prior to the suit is concerned, Mr. De does not press the claim. The plaintiff, however, will be entitled to interest pendente lite at 6 per cent.

I would accordingly allow the appeal and decree the suit for Rs. 562-2-0 with proportionate costs throughout. The plaintiff will be entitled to interest from the date of the suit to the date of this decree at 6 per cent, per annum. The decretal amount will carry future interest at 6 per cent, till realisation.

Rowland, J.

I entirely agree. I would like to say something about the rule in Tweddel v. Atkinson (1861) 1 B&S 393 of which we have heard so much at the bar and so much has been said in reported decisions. The English common law required the plaintiff to be able to give an affirmative answer to two questions: first, was the promise made to you? and secondly, did the consideration come from you? The two points have not always been kept distinct. In Tweddel v. Atkinson (1861) 1 B&S 393 the ground of decision was that the consideration did not come from the plaintiff. Wightman, J. said: "It is now established that no stranger to the consideration can take advantage of a contract, although made for his benefit." Crompton J. said: "The consideration must move from the party entitled to sue upon the contract." Blackburn J. stated the admitted rule to be that "in general no action can be maintained upon a promise, unless the consideration moves from the party to whom it is made." Thus all three Judges who decided that case founded their decision on the fact that the plaintiff was not the person from whom the consideration proceeded. We have only to look to Section 2(d), Contract Act, to see that the law in India is different; the statute makes it a good consideration for a promise if something has been done either by the promisee or by any other person. I need say no more as to the applicability of Tweddel v. Atkinson (1861) 1 B&S 393 in India, in so far as that decision rests on the doctrine of consideration; but it may be noticed that in argument for the defendant reliance was placed on Price v. Easton, which is reported in 1833.110 E.R. 518. Here Patteson J. said: "No promise to the plaintiff is alleged; but merely a promise to pay the plaintiff." Although the question of consideration is also referred to by the other Judges who heard that case, I have cited this observation of Patteson J. to show that this case fell under the rule that the promise must be made to the plaintiff.

Both these rules are stated as fundamental principles of English common law in Dunlop Pnumatic Tyre Co., Ltd. v. Selfridge and Co. Ltd 1915. A.C.C. 847 in which Lord Haldane L.C. said: "Only a person who is a party to a contract can sue on it." That is the rule that the plaintiff must be a person to whom the promise was made. He also said:

A second principle is that if a person with whom a contract not under seal has been made is to be able to enforce it, consideration must have been given by him to the promisor or to some other person at the promisor''s request.

The distinction drawn in England between contracts under seal and contracts not under seal, is not drawn in India; Section 2, Indian contract Act, seems to me to show that the principle of consideration does not apply by Statute to any contracts in India. Neither should it be adopted as a principle of equity and good conscience. In the same case Lord Dunedin said:

My Lords, I confess that this case is to my mind apt to nip any budding affection which one might have had for the doctrine of consideration. For the effect of that doctrine in the present case is to make it possible for a person to snap his ringers at a bargain deliberately made, a bargain not in itself unfair, and which the person seeking to enforce it has a legitimate interest to enforce. Notwithstanding these considerations I cannot say that I have ever had any doubt that the judgment of the Court of appeal was right.

But as was said in 60 Bom. 9541 "the fact that consideration may move from a third party does not involve the proposition that a third party can sue upon the contract." The real question is how far in India the rule prevails that "only a person who is a party to a contract can sue on it."

To answer the question who may sue and be sued on a contract in India we had best look to the statute, Sections 23 and 27, Specific Relief Act, 1877, of which Section 23 Clause (a) says that specific performance may be obtained by any party to the contract and Section 27 says from whom it is to be had. The defendant here is a person referred to in Section 27(a) and we have not to look further. The plaintiff is not a party referred to in Section 23(a) but the section does not limit the right to sue to parties referred to in Clause (a). There are no less than seven other classes of persons entitled to sue who are referred to in Clauses (b) to (h) of the section. In this litigation we are concerned with Clause (c) which runs thus: "Where the contract is a settlement on marriage, or a compromise of doubtful rights between members of the same family, any person beneficially entitled thereunder." It is difficult to reconcile this provision with Tweddel v. Atkinson (1861) 1 B&S 393 and where they conflict the statute must prevail. It only remains to see whether the contract relied upon by the plaintiff is such a compromise as is referred to in the clause. The Subordinate Judge thinks not because, he says:

In a family arrangement all the members of the family should be parties and if all the members of the family are parties to the compromise and settle their doubtful rights by virtue of the compromise certainly any one of them beneficially entitled under the terms can obtain a specific performance of the contract.

The Subordinate Judge has not seen that if all the members of the family had been parties to |he compromise then any one of them would have been entitled to enforce it u/s 23(a). Therefore on the view taken by the Subordinate Judge Section 23(c) is a dead letter from the start; but I know of neither principle nor authority in support of the proposition that there can be no compromise of doubtful rights between members of the same family unless it is between all the members of the family; and it seems to me Clause (c) was specifically designed to meet such cases as where the senior members of the family compromise a dispute regarding the rights both of themselves and of the other members of their respective branches. I have not the least doubt that the compromise in this case was one falling precisely within the letter and spirit of Section 23(c), Specific Relief Act. The facts of this case are not distinguishable from those in Protap Narain Mukerjee v. Sarat Kumari Debi (01) 5 C.W.N. 386 in which also Sub-section (c) of Section 23 was relied on. The facts fall within the decision of the Judicial Committtee of the Privy Council in Khwaja Muhammad Khan v. Husaini Begam 1910. 32 All. 410 . It is not clear to me whether that case falls within Clause (c) of Section 23, Specific Relief Act. If it does not, then there may be exceptions in India to the English Common law rule besides those mentioned in Section 23, Specific Relief Act. In Sundararaja Aiyangar and Another Vs. Lakshmiammal through her Husband and Next Friend Srinivasa Aiyangar, the view was expressed that a plaintiff can sue on a deed of contract containing arrangements for the performance of her marriage and this was based on the theory of a trust; but it might also have been held to fall within Section 23(c) had that matter been considered. I have nothing further to add to the comments of my learned brother on the other conflicting decisions cited at the bar.