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Calcutta High Court
Jiban Krishna Mullik vs Nirupama Gupta And Anr. on 6 May, 1926
Equivalent citations: 96 Ind Cas 846
Author: Page
Bench: Cuming, Page


Page, J.

1. The suit in respect of which this appeal arises was brought by a putnidar against a se-putnidar for arrears of rent. The putnidar had created a durputni in favour of one Umesh Chandra Biswas under which Umesh became liable to pay-rent at the rate of Rs. 244 per annum. Subsequently, Umesh executed a document by which he created a seputni in favour of the defendants under which a jama of Rs. 344 was fixed, It was further provided that by virtue of the se-putni right you shall be in title and possession of the same and out of the settled se-putni jama of Rs. 344 you shall pay Rs. 244, dur-putni rent, to the putnidar and shall take the rent receipt in my name and you shall pay me the said, rent receipt and the remaining Rs. 100 as per kist in the schedule below.” It is unnecessary to consider the other provisions in the document creating the se-putni.

2. The trial Court decreed the claim in parti. But the lower Appellate Court allowed an appeal by the defendant and dismissed the suit.

3. The question which we have to determine in this appeal is whether the plaintiff has made out any claim to recover from the defendant the moneys in suit as rent or otherwise.

4. Dr. Pal on behalf of the putnidar contended that the plaintiff was entitled to recover the sum claimed either in the form of rent or by virtue of the instrument under which the se-putni was created upon three grounds.

5. He contended that the plaintiff was entitled to recover the arrear of rent as the assignee of the rent from the dur-putnidar. But it was neither found by the lower Courts, nor has it been contended before us that there was any assignment of the rent to the plaintiff by the dur-putnidar. It is enough to say that there is no substance in the contention that any assignment of the rent by the assignor to the plaintiff was proved.

6. The learned Vakil further contended that inasmuch as the defendant had paid Rs. 244, which was payable as rent under the se-putni, to the putnidar over a period of years, the Court ought to hold that there was an implied contract that the said rent should be paid by the defendant to the plaintiff in future. We are unable to accede to this view. The mere payment of a sum of money by A to B cannot be made the foundation of a legal obligation on the part of A to pay to B a like sum in like circumstances in the future. Moreover, there was no consideration passing to the defendant from the plaintiff to found any such agreement. In our opinion this contention also fails.

7. Thirdly, Dr. Pal contended that inasmuch as under the document by which the se-putni was created an obligation was undertaken by the se-putnidar to pay Rs. 244 to the, plaintiff, that obligation conferred a benefit upon the putnidar which in equity entitled the plaintiff to enforce the obligation against the defendant. In support of his contention the learned Vakil referred to the cage of Deb Narain Dutt v. Ram Sadhan Mandal 20 Ind. Cas. 630 : 41 C. 137 : 17 C.W.N. 1143 : 18 C.L.J. 603. In that case in the course of his judgment Jenkins, C.J., observed that–“There is a valuable exposition of the law by Lord Hatherley in the first of these last two cases that is, Touche v. Metropolitan Railway Warehousing Co. (1871) 6 Ch. A. 671 which was adopted by Lord Justice Cotton in the second. The Lord Chancellor-said: “The case comes within the authority that, where, a sum is payable by A B for the benefit of CD, CD can claim under the contract as if it had been made with himself.” Jenkins, C.J., added: “That appears to me to be a principle which is of distinct use in the consideration of this case.” Now, if the broad proposition laid down by Lord Hatherley is to be accepted without qualification, it would support Dr. Pal’s contention. But these observations of Lord Hatherley must be taken with reference to the context in which they appear; and in Touches case (1871) 6 Ch. A. 671 it is clear that Walker was treated as holding the sum which he received from the Company under the agreement between himself and the Company as the trustee for the plaintiff. Lord Hatherley’s observations in Touch’s case (1871) 6 Ch. A. 671 were considered in In re Empress Engineering Co. (1881) 16 Ch. D. 127 : 43 L.T. 742 : 29 W.R. 342. In that case Jones and Pride were Solicitors who claimed in the liquidation to the Company for work done in connection with the promotion of the Company upon instructions received by one of the promoters. In the course of the argument Jessel, M.E., observed, in reference to Gregory v. Williams (1817) 3 Mer. 582 : 17 R.R. 136 : 36 E.R. 224 that–“In that case Sir W. Grant appears to have considered that there was a declaration of trust. I know of no case where, when A simply contracts with B to pay money to C,C has been held entitled to sue A in equity.” Referring to Touche v. Metropolitan Railway Warehousing Co. (1871) 6 Ch. A. 671, Jessel, M. R, observed that–“In that case the Lord Chancellor finds, as a fact, that Walker was to receive the money as a trustee for the plaintiffs. If you can make out that Jones and Pride are cestui que trust, that alters the case. It appears to me that they are not. The promoters were liable to Jones and Pride, who are simply their creditors. I being liable to B,C agrees with A to pay B. That does not make B a cestui que trust.” In the course of his judgment Jessel, M.R., after holding that inasmuch as the agreement by the promoters with the Solicitors was made as agents for the Company, which then was non-existent, such a contract could not subsequently be ratified by the Company after incorporation, and the Company was under no liability to the Solicitors, added: “Supposing, however, that there was, it is then contended that a mere contract between two parties that one of them shall pay a certain sum to a third person not a party to the contract, will make that third person a cestui que trust. As a general rule that will not be so. A mere agreement between A and B that B shall, pay C (an agreement to which C is not a party either directly or indirectly) will not prevent A and B from coming to a new agreement the next day releasing the old one. If C were a cestui que trust it would have that effect. I am far from saying that there may not be agreements which may make C a cestui que trust. There may be an agreement like that in Gregory v. William (1817) 3 Mer. 582 : 17 R.R. 136 : 36 E.R. 224, where the agreement was to pay out of property and one of the parties to the agreement may constitute himself a trustee of the property for the benefit of the third party. So, again, it is quite possible that one of the parties to the agreement may be the nominee or trustee of the third person.” In Gandy v. Gandy (1885) 30 Ch. D. 57 : 54 L.J. Ch. 1154 : 53 L.T. 306 : 57 W.R. 803 the equitable principle again came under consideration by the Court of Appeal, and the true rule was laid down by Cotton, L.J., in the folio wing terms: “Now, of course, as a general rule, a contract cannot be enforced except by a party to the contract and either of two persons contracting together can sue the other, if the other is guilty of a breach of or does not perform the obligations of that contract. But a third person–a person who is not a party to the contract–cannot do so. That rule, however, is subject to this exception: if the contract, although in form it is with A, is intended to Secure a benefit to B, so that B is entitled to say he has a beneficial right in cestui que trust under that contract; then B would, in a Court of equity, be allowed to insist upon and enforce the contract. That, in my opinion, is the way in which the law may be stated.” His Lordship proceeded to refer to Touche v. Metropolitan Railway Warehousing Co. (1871) 6 Ch. A. 671 and after citing the passage from Lord Hatherley’s judgment which I have cited observed: “Now, if that is intended to lay down the rule as a general proposition of law in the general terms there used, it is not consistent with the other case referred to in In re Empress Engineering Co. (1881) 16 Ch. D. 127 : 43 L.T. 742 : 29 W.R. 342; but it may be that on the facts of the former case it was considered that the contract between Walker and the Company was entered into by Walker as a trustee for and on behalf of the plaintiffs: and, if so,” that is in accordance with what I understand to be the law.” His Lordship then added that the observations of Jessel, M.R., in In re Empress Engineering Co. (1881) 16 Ch. D. 127 : 43 L.T. 742 : 29 W.R. 342 which I have cited above “show that the general terms used by Lord Hatherley must be taken with some qualification as laying down the general law.” The rule laid down by Cotton, L.J., in Gaudy’s case (1885) 30 Ch. D. 57 : 54 L.J. Ch. 1154 : 53 L.T. 306 : 57 W.R. 803 is illustrated by Khwaja Mohammad Khan v. Hussaini Begam 7 Ind. Cas. 237 : 37 I.A. 152 : 32 A. 410 : 14 C.W.N. 865 : 7 A.L.J. 871 : (1910) M.W.N. 313 : 8 M.L.T. 147 : 12 C.L.J. 205 : 12 Bom. L.R. 638 : 20 M.L.J. 614 : 37 I.A. 152 (P.C.) and the cases of Deb Narain Dutt v. Ram Sadhan Mandal 20 Ind. Cas. 630 : 41 C. 137 : 17 C.W.N. 1143 : 18 C.L.J. 603 and Dwarka Nath Ash v. Priya Nath Malki 36 Ind. Cas. 792 : 22 C.W.N. 279 : 27 C.L.J. 483 must be taken to have been based upon the same ground. Applying the equitable rule to the facts of this case it is clear from a consideration of the terms of the instrument by which the se-putni was created that that instrument was not executed for the benefit of the plaintiff in any sense, and that so far as the plaintiff was concerned the only effect of the instrument was that the se-putnidar agreed with the dur-putnidars to pay a portion of the rent due under the se-putni to the plaintiff as a nominee of the dur-putni-dar. The equitable rule should only be applied in rare cases and under exceptional circumstances, and can have no application in a case such as the one under appeal.

8. For these reasons, in my opinion, the appeal fails and must be dismissed with costs.

Cuming, J.

9. I agree.

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