JUDGMENT
Roe, J.
1. The question in issue in this appeal is one of some importance and has been the subject of an abortive reference to a Full Bench of the Calcutta High Court, The facts are briefly that the appellants have contracted with Government to maintain the rights of all tenure holders entered in the Record of Rights prepared prior to the giving of a kabuliyat by the appellants. They nevertheless bring this action for a declaration that one of the tenure-holders covered by this Record of Rights has obtained a fraudulent entry therein and has no such rights as those recorded. The learned Judge has decided as a question of law that having regard to the terms of this kabuliyat the appellant cannot maintain this action. On this ground the appellant appeals to this Court and quotes in the first instance the reference to the Full Bench of the Calcutta High Court made by Coxe, J., and Imam, J., [Manmatha Nath Mitter v. Rai Kishore Mahanti 7 C.L.J. 70 (Notes) ]. The cases relied on in support of the contention of the respondents are those of Gour Chandra Saha v. Mani Mohan Sen 32 C. 463 and Jahandar Baksh Mallick v. Ram Lal Hazra 5 Ind. Cas. 565 : 11 C.L.J. 364;14 C.W.N. 470 : 37 C. 449. But in relying upon the latter case, it seems to me, the learned Vakil has lost sight of the distinction which Mookerjee, J., drew between the Gour Chandra’s case 32 C. 463 and the cases of Tapanidhi Raghunath Puri v. Pitambar Gajendra Mahapati 5 C.L.J. 67 and Chandramoni Mohanti v. Manmatha Nath Mitter 5 Ind. Cas. 301 : 11 C.L.J. 68. The reference to the Fall Bench seems to be based chiefly upon the decision in Tweddle v. Atkinson (1861) I B.& S. 393 : 30 L.J.Q.B. 265 : 4 L.T. 468 : 9 W.R. 781 : 8 Jur. (N.S.) 332 : 121 E.R. 762;124 R.R. 610 and the decision of the Judicial Committee in Jamni Das v. Ram Autar Pande 13 Ind. Cas. 304 : 39 I.A.7;16 C.W.N. 97 : 11 M.L.T. 6 : 9. A.L.J. 37 : (1912) M.W.N. 32 : 15 C.L.J. 68 : 14. Bom. L.R. 1 : 21 M.L.J. 1158 : 34 A. 63 (P.C.). That the rule in these cases is not of universal application is clear from the decision in Rogers v. Hosegood (1900) 2 Ch. 388 : 69. L.J. Ch. 652 : 83 L.T. 186 : 48 W.R. 659 : 16 T.L. 489, which is clear authority for the proposition that in contracts relating to land a third party may take the benefit of the contract if they have a beneficiary interest in its purpose. In Nawab Khwaja Muhammad Khan v. Nawab Husaini Begum 7 Ind. Cas. 237 : 37 I.A. 152 : 14 C.W.N. 865 : 7A.L.J. 871 : (1910) M.W.N. 3(SIC)3 : 8 M.L.T. 147 : 12 C.L.J. 205 : 12 Bom. L.R. 638 : 20M.L.J. 614 : 32 A. 410 (P.C.) the principle of Tweddle v. Atkinson (1861) I B.& S. 393 : 30 L.J.Q.B. 265 : 4 L.T. 468 : 9 W.R. 781 : 8 Jur. (N.S.) 332 : 121 E.R. 762;124 R.R. 610 was held to be inapplicable to a case in which, though the respondent was no party to the original agreement, she was clearly entitled to proceed in equity to enforce her claim. The cases of Gour Chandra Saha v. Mani Mohan Sen 32 C. 463 and Jahandar Baksh Mallick v. Ram Lal Hazra 5 Ind. Cas. 565 : 11 C.L.J. 364;14 C.W.N. 470 : 37 C. 449, as Mookerjee, J., explains, were based on the principle that the tenants themselves had waived the conditions imposed upon the landlord by the Government and could not now resile from their waiver. There has in the case before as been no waiver of the conditions imposed by the Government. I am of opinion that these conditions prevail and that advantage may be taken of them by the tenant and that the cases before us are not maintainable until the condition has been removed by waiver on the part of the tenants on the estate or by the Government who were parties to the original contract. The appeal should, therefore, be dismissed with costs.
Chapman, J.
2. I agree.