TaxTMI 
TaxTMI 
1941 (6) TMI 11
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....pril 1933, respectively, but on both these occasions the payments were made by defendants 1 to 3 only and not by defendant 4. On 20th June 1932, defendants 1 and 2 executed a kobala in respect of certain properties in favour of defendant 4 who was an officer as well as a relation of theirs and as consideration for the same defendant 4 undertook to pay the debts due to the plaintiff as well as to another creditor named Prokash Chandra Nag Choudhury whose names were specifically mentioned in the schedule to the conveyance. It was recited in the document that defendant 4 had stood surety in respect of both these loans and he had given hopes to defendants 1 and 2 that he would be able to induce the creditors to abandon their claim for interest and give full acquaintance to the debtors on receipt of the principal sums only. The value of the properties was stated in the kobala to be Rs. 3000 and that was exactly the principal amount advanced by these creditors. As no money was paid by any of the defendants, the plaintiff instituted the present suit on 19th June 1935 and the claim was laid at Rs. 5000 which was the principal and interest due on the two hundis. As against defendant 4, the ....
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....een whom and the stranger no privity exists, creates privity by his conduct and by acknowledgment or otherwise constitutes himself an agent of the third party. There are numerous authorities, both English and Indian, which have laid down these propositions of law and reference may be made, among others, to the decisions in In re Empress Engineering Co. (1881) 16 Ch. D. 125, Lloyds v. Harper (1881) 16 Ch. D. 2902, Gandi v. Gandi (1885) 30 Ch. D. 57, Dunlop Pneutnatic Tyre Co. v. Selfridge (1915) 1915 A.C. 847, Jiban v. Nirupama ('26) 13, Krishna Lal Sadhu v. Pramila Bala Dasi AIR 1928 Cal5 18, Adhar Chandra v. Dalgobinda AIR 1936 Cal 663, District Board Malda v. Chandraketu AIR 1937 Cal 625, and Ramaswami v. Krishna and Sons AIR 1935 Mad 904. There are a number of cases in India where under marriage settlements or in connexion with family arrangements or otherwise a charge is created on specific immovable property for the benefit of a third person or provisions are made for the maintenance or marriage expenses of female members. In such cases the beneficiaries, though not parties to the contract, are entitled to sue : vide Khwaja Muhammad Khan v. Husaini Begum ('10) 32 All. ....
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....e Ka,-and you having agreed to release us from the liability of the debts due to the creditors described in schedule Ka and having agreed to take the properties in kobala in consideration thereof, we are, for, that consideration, selling the properties described in schedule Kha...." The rest of the document is not material except the last paragraph which runs as follows: You will release us from our debts by liquidating the dues of those creditors in any way you can. If you do not liquidate these debts and they sue us in Court you will be liable for it. 5. Taking the document as it stands, the first branch of Dr. Roy's contention seems to be manifestly untenable. It cannot be said that the property itself was transferred to defendant 4 charged with the payment of debt due to the plaintiff. It was a case of a sale out and out and the vendee took the property without any limitation whatsoever though the consideration for the transfer was the promise made by him to pay the debts due to the creditors. The decision of the Privy Council in Uma Nath v. Jang Bahadur upon which Dr. Roy relies has no application to the facts of the present case. We now come to the other branc....
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.... of Gregory's debt, though the actual debt was in excess of that. A question was raised as to whether Gregory could enforce the agreement to which he was not a party. Sir William Grant, M. R. in his judgment dealt with the point in the following manner: Now, it may be of doubt whether they could have recovered at all upon this agreement; for the agreement is not made directly to Gregory, it is made to Parker only and the consideration is furnished by Parker, for, it is Parker alone that does the acts which constitute the consideration for the agreement. Gregory himself furnishes no part of the consideration and he is no party to the contract. Parker acts as his trustee and Gregory may derive an equitable right through the medium of Parker's agreement. 5. So, what was decided by Sir William Grant was not that Williams was a trustee of the property for Gregory but that Parker being a trustee for Gregory in respect of the promise made to him by Williams, Gregory could sue Williams through Parker on the ground that the promise was made to the latter as his trustee. Whether Williams was a trustee for Gregory has nowhere been adverted to or discussed in the body of th....
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....ties of which there are more than one, namely, Gregory v. Williams (1817) 3 Mer. 582, before Sir William Grant, Lamb v. Vice (1840) 6 M. & W. 467, and many other cases which proceed on the principle that if A is trustee for B, A can sue on behalf of B. 8. The very same principle was invoked in Les Affreteurs Reunis. v. Leopold Walford (1919) 1919 A.C. 801, where the charterer sued the shipowner for the amount of broker's commission and the claim was allowed against the shipowner on the ground that the charterer was the nominee or trustee for the broker. If this principle were to be invoked in the present case, then defendants 1 and 2, the promisees, ought to be regarded as trustees for the plaintiff and the plaintiff should have sued through them for enforcement of the contract against defendant 4. This is not however the plaintiff's case and Dr. Roy makes it clear in his argument that he is not relying on this principle in support of his client's case. He relies entirely on the first proposition enunciated by Sir George Jessel in In re Empress Engineering Co. (1881) 16 Ch. D. 125, which was accepted by this Court in Dwarka Nath v. Priya Nath ('18) 5 A.I.R. 1918 ....
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....ngement which he might be able to make with them. He took the chance of his being able to induce the creditors to give up their claim for interest either in whole or in part. But it is perfectly clear that it was for the benefit of the vendors themselves and not for the benefit of the creditors that this bargain was made. If the transferee has not made good his promise, it is open to defendants 1 and 2 under the terms of the kobala to sue defendant 4 for the recovery of the sum that has been decreed to the plaintiff against them. We cannot hold, however, that defendant 4 was in any way a trustee for the plaintiff in respect of the money due to him. The first contention of Dr. Roy, therefore, must fail. 10. The other point raised by Dr. Roy relates to the question of limitation. As has been said already, the only payment which was made by defendant 4 towards the interest due on the hundis was on 8th August 1927, and the suit is admittedly filed more than three years after that date. The question is whether the payment by the other debtors could save limitation against defendant 4. Dr. Roy argues that defendant 4 being only a surety for the debtor, a payment by the principal defen....