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Madras High Court
Subrahmania Pattar vs Narayanan Nayar And Ors. on 7 September, 1900
Equivalent citations: (1901) ILR 24 Mad 130
Bench: A White, Boddam


JUDGMENT

1. The only question argued before us in this second appeal is whether the plaintiff can sue in his own name to recover certain property belonging to the devasom of the fourteenth defendant and demised on kanom to the first defendant.

2. In June 1892 the fourteenth defendant and the other adult members of the devasom executed to the plaintiff the document put in as exhibit Y which is called a ‘lease alias Kuthaka Karar.’ This document has already been the subject of judicial interpretation by the High Court in Appeal No. 191 of 1898, and it was then held to be an authority coupled with an interest and was irrevocable.

3. The plaintiff’s suit was dismissed both by the District Munsif and by the Subordinate Judge on the ground that the document did not enable the plaintiff to recover devasom properties in a suit brought in his own name.

4. It was argued before us that by the document in question the plaintiff became an agent with interest, and that he, therefore, had a right to sue in his own name and Willams v. Millington 1 H. Bl. 81 : 2 R.R. 724. Robinson v. Rutter 24 L.J.Q.B. 250; Gray v. Pearson L.R. 5 C.P. 568, and other cases and text-books were cited in support of this proposition, and Pestanji Mancharji Wadia v. Matchett 7 Bom. H.C.R. (A.C.J.) 10 was also cited as a further authority for the same proposition. The proposition as stated is in our judgment too wide, In Williams v. Millington 1 H.B1. 81 : 2 R.R. 724 and Robinson v. Rutter 24 L.J.Q. B. 250 the agents who were held entitled to sue were agents who had made the contract with the defendant as auctioneers, and it was held that, though they had contracted as agents having an interest, they were entitled to sue in their own names. In Gray v. Pearson L.R. 5 C.P. 568 the plaintiff’s suit was dismissed. There, there was no contract entered into between the plaintiff and the defendant. The plaintiff was merely the manager for others and the words used by Willes, J., in his judgment, to which our attention was called, do not assist the plaintiff’s contention. He says the proper person to bring the action is the person whose right has been violated. Though there are certain exceptions to the general rule, for instance, in the case of agents, auctioneers or factors, these exceptions are in truth more apparent than real, &c. The real proposition of law, which these and other cases establish, is that where an agent enters into a contract as such, if he has interest in the contract, he may sue in his own name. Unless the contract for the breach of which the action is brought is one made by the agent, he has no cause of action because there is no privity between himself and the defendant, and Montague Smith, J., in his judgment in Grey v. Pearson L.R. 5 C.P. 568 puts this point says, “There is no privity between the plaintiffs and the defendant. The contract is between the defendant and the other members of the association.” The mere fact that after a contract has been made between A and B, A gives G authority be act for him for a consideration, does not create any privity between C and B, so as to enable C to sue B for breach of his contract with A. If there is a breach and C wishes to sue B, he must do so in the name of A, that is in the name of the person whose right has been violated.

5. The case of Pestanji Mancharji Wadia v. Matchett 7 Bom. H.C.R. (A.C.J.) 10 does not in any way touch the question, There, Matchett had given Pestanji a power of attorney to sue one Nowell for a debt due to Matchett out of which Pestanji was to pay himself a debt due to him from Matchett, but in spite of this power Matchett had himself sued Nowell for the debt to the exclusion of Pestanji. There the Court held that the power was irrevocable, because Pestanji had a pecuniary interest which was consideration for the power, and in the result, Pestanji having been joined as a co-plaintiff, the Court entered judgment for the amount due to Pestanji first, the balance, if any, to be paid to Matchett. Here the action was brought in Matchett’s name, and all that the case decided was that Matcehett, having given an irrevocable power of attorney to Pastanji, could not sue to the exclusion of Pestanji.

6. In the case before us there is no privity between the plaintiff and the defendant. The authority to bring suits in the document does not purport to give the plaintiff the right to sue in his own name, and so far as we are aware, nothing else has happened which could authorise the plaintiff to sue the defendant in his own name.

7. We are of opinion, therefore, that the plaintiff’s suit was rightly dismissed in the Courts below, and we dismiss this second appeal with costs.


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