JUDGMENT <NAME>, C.J.

1. This appeal arises out of a suit for redemption, of what is alleged to be a mortgage, dated the 29th of August 1852, executed by the predecessors-in-title of the plaintiffs against the representatives of the alleged mortgagees.

2. The <ORG> below dismissed the plaintiffs' suit finding that the document in question was an. out and out sale-deed and not a mortgage. Against this decision, the present appeal has been preferred on the grounds that upon a true construction of the document in question and another document of the 8th of September, 1852, the transaction evidenced by them was a mortgage by way of conditional sale.

3. In the document of the 29th of August 1852, the entire of a Tillage called Murlipur Phul, which is stated therein to belong to the executants by right of inheritance, was conveyed to <NAME> and others in consideration of a sum of Rs. 5,500. The operative part of the document runs as follows: "We have now sold the entire 20 biswa zamindari property aforesaid together with all the rights and interests appertaining thereto for a sum of Rs. 5,500 to <NAME>, <NAME>, <NAME> and <NAME> and the aforesaid vendees purchased the aforesaid property from us in consideration of the aforesaid amount. The sale is valid, legal, lawful and enforceable. Accordingly the proposal and acceptance have taken place between the parties. We have received the whole of the consideration in respect of the property sold from the aforesaid vendees and have brought the same to our use. We have put the vendees into possession and enjoyment of the aforesaid property together with all that cesses and revenues." This document was presented for registration on the 18th of May 1853 by the executants, or persons representing them, and the receipt of the consideration admitted before the registering Officer.

4. On the 5th of September following, an agreement was entered into between <NAME>, <NAME>, <NAME> and <NAME> with the executants of the document of the 29th of August 1852, in which that document is recited as being a purchase of the village in question, and then an agreement for re-sale is stated in the following terms: "As we the executants are now willing to help and treat with kindness the vendors, we the executants of our own free will do hereby covenant and give in writing that if the aforesaid vendors after the lapse of 9 to 10 years from the date of the execution of the aforesaid sale-deed, do pay to us the purchase-money as entered in the sale-deed, i.e., the sum of Rs. 5,500, out of their own pocket without mortgaging or selling their property to other persons, we shall forthwith execute a fresh sale-deed on receipt of the sale consideral ion entered in this document and get mutation of names effected in the revenue papers. We shall never deviate from what we have agreed upon. In the event of oar refusal, they have power to deposit into the treasury attached to the <ORG> the amount of consideration entered in the sale-deed; and after the institution of a suit in <ORG> to purchase their property anew. Further if the aforesaid persons be not ready, to purchase the property and to pay the purchase-money within the aforesaid time, they shall have no claim to the aforesaid property after the expiry of the period of ten years."

5. This agreement was presented for registration by the executants on the 19th of May 1853, that is, the day after the date of registration of the earlier document. I may observe that documents of the kind were not at this time compulsorily registrable.

6. The learned Judge, after a review of the authorities, held that the document of the 29th of August 1852, was not a mortgage but an out and out sale and that any claim on foot of the subsequent document of the 5th of September 1852, was barred by limitation.

7. This appeal has been preferred and the contention of the learned Advocate for the appellants is that the two documents must be read together and that being so read, they are evidence of a mortgage by way of conditional sale, and that the case is governed by the ruling of their Lordships of <ORG> in <NAME> v. <NAME> 22 A. 149 : 27 I.A. 58. If his contention be well-founded, then the plaintiffs-appellants are entitled to redeem and to have an account from the defendants of the rents and profits of the property from the year 1852 up to the present time.

6. On the other hand, it is contended that the two documents are evidence of two different transactions, one being an out and out sale, the other an agreement to re-sell within a limited time and that the case is governed by the ruling of their Lordships of <ORG> in Bhagwan Sahai v. Bhagwan Din 12 A. 387 : 17 I.A. 98.

7. In my opinion this last contention is well-founded. I am unable to distinguish the case from that of <NAME> v. <NAME> 12 A. 387 : 17 I.A. 98. In that case the two documents, were contemporaneous, being dated the 20th of February 1838. By the first document. <NAME> and others, who professed to be the proprietors of certain property, declared that they had ,pf their own accord absolutely sold the entire property to <NAME> in consideration of a sum of Rs. 4,000. Then on the same day another document was executed by which <NAME> after the recital of the deed of purchase added "I have, as a matter of favour, mercy, kindness and indulgence, executed this deed, and do hereby stipulate that if all these vendors will, within a period of ten years from the date of this deed, pay in a lump sum and without interest the whole amount specified above I shall accept the same and cancel this valid sale. During the aforesaid term I shall remain in possession, collect the rents, enjoy the profits and be liable for loss; the vendors shall have no concern whatever. I shall, not claim interest from the vendors, nor will they demand profits from me after the expiry of the term. In case the whole of the principal is not paid the vendors shall not be able to cancel the sale by payment of the principal." Sir <NAME>, who delivered the judgment of their Lordships of <ORG>, held reversing the decisions of the <ORG> below that it was clear that "this case was not one of mortgagor and mortgagee but one of an absolute sale with a right to re-purchase within a period of ten years." In that case it will be observed both the documents were executed on the same day which lent colour to the contention that the two transactions were really one transaction. In the case before us there was an interval of 7 days between the execution of the two documents, and the registration of first document was effected on the 18th of May 1853, whilst the registration of the agreement was on the following day. From this it may reasonably be inferred that the parties intended that the transactions should be kept separate and distinct. The documents taken together do not, on the face of them, constitute a mortgage; and assuming that they are to be read together there is nothing in them to indicate that they represented a mortgage transaction. Prima facie an absolute conveyance, containing nothing to show that the relationship of debtor and creditor is to exist between the parties, does not cease to be no absolute conveyance merely because the vendor stipulates that he shall have a right to re-purchase. But there was in this case no stipulation on the part of the vendor that he should have a right to purchase. It was the executants who undertook to re-convey out of kindness to the vendors, just as in <NAME> v. <NAME> 12 A. 387 : 17 I.A. 98, the vendees "as matter of favour, mercy, kindness and indulgence" stipulated that their vendors should have that right.

8. The learned Advocate for the appellants strongly relied upon a passage contained in the agreement of the 5th of September 1852 which runs as follows: "In the event of our refusal (i.e., the refusal of the vendees to re-convey), they (the vendors) shall have power to deposit into the treasury attached to the <ORG> the amount of consideration entered in the sale-deed, and after institution of a suit in <ORG> to purchase their property again." His contention is that this provision is a strong indication that the transaction was one coming within the purview of Bengal Regulation I of 1798, a regulation to prevent fraud and injustice in conditional sales of land under deeds of bai-bil-wafa or other deeds of the same nature. By that Regulation, the mortgagor under deeds of this description was empowered to deposit the amount due on or before the stipulated date in the Dewani Adaulat of the city or zillah in which the land might be situate and redeem the property.

9. Reliance was placed on the language in question in view of the decision of their Lordships of <ORG> in the case of <NAME> v. <NAME> 22 A. 149 : I.A. 58. In that case <NAME> executed in favour of <NAME> and another, a firm of Bankers in Benares, a deed of sale of his estate, the price stated being Rs. 1,50,000. The consideration was not paid in cash, but consisted in part of money unpaid upon a previous mortgage to the banking firm, effected on the 8th of April 1872, and the rest of the consideration was a balance, retained by the banking firm, of the amount then due on an estimate of expenses for conducting certain factories which, they financed for the plaintiff. A second document was executed by the banking firm to the plaintiff on the same day whereby the firm agreed to re-sell the property to <NAME> if he paid on the 1st of March 1876 the sum of Rs. 1,65,000 and it was agreed that if the buyers or their heirs should raise any objection to receive the money and relinquish the property, the vendor should be competent to deposit the amount in cash in the <ORG> by virtue of the agreement and obtain possession of the property. It was further stipulated that if the estimate of the expenditure on the indigo factories should be varied by consent from year to year, then the vendor should be liable to pay along with the sum specified above whatever sum may be found to be due by him at this time. Their Lordships held that there were contained in the two documents indications that the parties intended to effect a mortgage by conditional sale, and that redemption had been rightly decreed in the <ORG>s below. Lord <NAME>, who delivered the judgment of their Lordships, in the course of his judgment pointed out that mortgages by conditional sale under various names were a common form of mortgage in India and that this form was introduced to enable Muhammadans, contrary to the precepts of their religion, to lend money at interest and obtain security for principal and interest, and that, therefore, one would expect to find that the transaction would be made to assume the appearance of a sale. Referring to the case of <NAME> v. Bhagwan Din 12 A. 387 : 17 I.A. 98, he observed: Their Lordships decided that case on the language of the deeds in question which they evidently considered showed that the transaction was not such a transaction as is described in the Regulation of 1806 and there was, therefore, no right of redemption after the expiry of "the date fixed." He then later on observes that "the documents in question contained important indications of the intention of the parties. The second deed or ikrarnama provides that if the bankers object to receive the money and relinquish, the property, the vendor may deposit the amount in the <ORG> 'by virtue of this agreement' and obtain possession over the ilaqa." This provision he said "at once suggests a reference to Regulation I of 1798 as being in the opinion of the parties applicable to the case. It was not suggested that there was any other statutory provision or practice by which such deposit could be made by virtue of the agreement alone without the intervention of the <ORG> in a suit for the purpose, while on the other hand the words exactly describe the procedure under the Regulation." Again he observed: "the estate was made redeemable only on payment as well of the amount which should be found due at the time of redemption on account of the Basharatpur concern as of the stipulated sum of Rs 1,65,000. The practical effect of this was, he held, to consolidate the debt on the factories account with the principal sum mentioned in the deed and to give the bankers a security on the taluka for the debt of the factories. This gives the transaction the character of a mortgage so far as the factory accounts are concerned and if it is to some extent a mortgage it may well be held to be so entirely."

10. The facts of that case are unlike those of the present. Here the agreement for re-purchase was at the price originally paid for the property, and there was no consolidation of the sum representing the price with a debt on any account such as would give the transaction the character of a mortgage to any extent. The words in the agreement whereby the vendors were empowered to deposit into the treasury the amount of the consideration mentioned in the sale-deed are vague and little weight can be attached to them. Unintelligent draughtsmanship would account for them. The subsequent words "after the institution of a suit in <ORG>" seem to indicate the course which the vendors were to adopt in the event of the vendee's refusal to fulfil his agreement to re-sell, namely, a suit for specific performance of the agreement. If this be so, the reference to a deposit in <ORG> pointed to a deposit of the purchase-money in the <ORG> having seisin of the suit for specific performance. Whatever be the meaning of this passage, it is too obscure and vague, in my opinion to justify us in holding that the two documents are to be read together and that being so read they constitute a mortgage by way of conditional sale. This is the main plank upon which the learned Advocate for the appellants based his argument in support of his contention that this case comes within the ruling in. <NAME> v. <NAME> 22 A. 149 : 27 I.A. 58. The best general test of the intention of the parties in cases such as the one before us is the existence or non-existence of a power in the original purchaser to recover the sum named as the price of the re-purchase. If there is no such power there is no mortgage. See <NAME> v. <NAME> 5 My & Cr. 305 : R.R. 322 : 12 L.J. Ch. 207 : 5 Jur. 114. <NAME> in Goodman v. <NAME> 12 R.R. 82 : 2 Ball. & B. 278, adopted a somewhat, similar test. He observed: "The fair criterion by which the <ORG>is to decide whether this deed be a mortgage or not, I apprehend to be this--are the remedies mutual and reciprocal, has the defendant all the remedies a mortgagee is entitled to?'" Tried by this test, there can be no doubt that the transactions before us did not constitute a mortgage, A sale with a provision for re-purchase is not common either in this country or in England but there is nothing illegal or objectionable in such a transaction. The document of the 29th of August 1852, purports in clear and unambiguous language to be a sale-deed. The document of the 8th of September 1852 likewise in explicit terms purports to be an agreement for re-sale within a limited period. There is nothing in them to indicate that the parties did not intend that these documents should operate according to their tenor. There is nothing illegal in a transaction of sale with an agreement for re-sale within a limited time and I fail to see why these documents should be interpreted differently from any other document. I would point out that no qualms of conscience in regard to the lending of money at interest and obtaining security for principal and interest could have had any influence on the parties to these transactions inasmuch as we find that a simple mortgage securing principal and interest was given and taken by the same parties on the day of the sale of Murlipur, Phul, that is the 29th of August 1852. This mortgage is No. 1230 of the record. In it we find an admission by the mortgagors of the receipt of Rs. 2,500, the consideration for the bond as also of the receipt of Rs. 5,500, the consideration for the purchase of <NAME>. By this mortgage another property of the mortgagors was hypothecated in the ordinary form, the mortgag-ors agreeing to pay principal and interest. It cannot, therefore, be said that it was to avoid the interest question that the other transaction was carried out in the form of a sale and agreement for resale. I am at a loss to understand on what principle of equity or good conscience the plaintiffs-appellants can justly claim a right now to redeem or repurchase the property. They or their predecessors-in-title allowed the period for repurchase to elapse and now after a lapse of more than half a century seek to convert a sale with an option of re-purchase within a limited period into a mortgage by, way of conditional sale. The <ORG> below, in my opinion, rightly dismissed their suit. I would, therefore, dismiss the appeal.

Banerji, J.

11. The question in this appeal is whether the two documents of 1852 together constituted a mortgage known as a bai-bil-wafa mortgage, that is, a mortgage, by way of conditional sale, or an out and out sale with a contract for re-purchase. The test in these cases is what was the intention of the parties. This is to be gathered from the documents themselves and from surrounding circumstances. The first circumstance to which I would refer is, as pointed out by Dr. <NAME> in his well known work on Mortgages, 3rd Edition, p. 114, that "a bonafide sale with a condition for re-purchase is very rare in this country, while it is a very common parctice with mortgagees to take a conveyance of the property from the mortgagor with a condition for repurchase as security for the loan; the mortgagee either taking the rents in lieu of interest or allowing the mortgagor to remain in occupation paying interest on the mortgage-money under the name "f rent." The next circumstance I would refer to is the fact that in these Provinces the Muhammadan forms of conveyancing were followed for a long time, specially in case in which one of the parties to the transaction was a Muhammadan. See the observation of Edge C.J. in <NAME> 14 A. 195 at. P. 199. Another circumstance which I may mention is that as Muhammadans are prohibited from taking interest they resort to the device of obtaining an absolute sale with a stipulation for re-purchase in order to evade the prohibition as to interest. This is the origin of bai-bil-wufa transaction under which in the garb of a sale the creditor enjoys the usufruct of the property in lieu of interest, the transaction being in reality a mortgage. Such mortgages were very common in earlier times and were effected sometimes by the execution of a deed of absolute sale containing a contract for re-purchase and often by the execution of two documents, one of which purported to be a deed of sale out and out and the other an agreement by the ostensible purchaser to re-convey the property to the apparent vendor. Such transactions have always been regarded as mortgages by way of conditional sale. Among Muhammadan lawyers a long term for re-purchase denotes a mortgage or security for a loan." (See Ghose on Mortgages, p. 77, 3rd Edition).

12. Bearing these circumstances in mind, if we look at the transaction in question it seems to me to be clear that it was a bxi-bil-wafa mortgage, that is, a conditional sale, and not an absolute sale with a right of re-purchase. The persons who, purported to be purchasers were Mohammadans and they were to take possession and enjoy the usufruct. They executed a document by which they agreed to reconvey the property "after the expiry of the term of 9 to 10 years" enjoying in the meantime the usufruct in lieu of the use of their money. It is true, the two documents bear different dates but they were presented for registration about the same time, the one on the 18th and the other on the 19th of May 1853 and neither of them was delivered before registrantion as the endorsement of the registering officers shows. They were, therefore, in fact contemporaneous documents, as in ordinary cases of bai-bil-wafa mortgage. The long term of ten years is another indication that the transaction was a mortgage. Further, the agreement provides that "in the event of the executants of it refusing to execute a sale-deed on receipt of the amount mentioned in the document, the nominal vendors would have power to deposit in the <ORG> attached to the <ORG> the amount of consideration entered in the sale-deed." This clause, in my opinion, refers to a deposit under Regulation I of 1798, as in the case of <NAME> v. <NAME> 22 A. 149 : 27 I.A. 58 and shows that the parties regarded the transaction as one of mortgage to which the Regulation applied. The absence of the words by virtue of this agreement seems to me to be immaterial and I do not agree with the <ORG> below that a suit for specific performance was contemplated. This case is in many respects similar to that of <NAME> v. <NAME> 22 A. 149 : 27 I.A. 58 referred to above and is distinguishable from that of <NAME> v. Bhagwan Dts 12 A. 387 : 17 I.A. 98 relied on by the <ORG> below. The transaction in question was, in my judgment, one of a mortgage by way of conditional sale. I would, therefore, allow the appeal, set aside the decree of the <ORG> below and remand the case to that <ORG> for trial on the merits.

13. The members of the Bench being divided the decree of>the <ORG> below will stand. We accordingly affirm the decree of the <ORG> below and dismiss the appeal but under the circumstances without costs.


JUDGMENT

1. The facts leading to this reference are these': The 1st defendant executed a sale-deed, dated the 21st of December, 1922, in favour of the 3rd defendant for Rs. 3,500 and he directed the vendee to pay the plaintiff Rs. 1,201) which he, the 1st defendant, owed the plaintiff. The plaintiff sued to recover the sum of Rs. 1,574-10-3 the balance which was due on a promissory note executed by the 1st and 2nd defendants, dated the 25th of June, 1921. He made the 3rd defendant a party on the ground that he was a vendee from the 1st defendant under an obligation to pay the debt due by the 1st defendant to the plaintiff.

2. The sale-deed has been filed as Ex. D in the case, It purports to be for Rs. 3,500. After reciting that the vendee had undertaken to pay Rs. 1,500 due to one <NAME> arid another sum of Rs. 500 due to the same creditor the material portion continues as follows:

Whereas you have consented to pay on my behalf to <ORG> firm carrying on money-lending business at <ORG>, Periyakulam Town, the amount due by me to him, and obtain a receipt, I am in receipt of Rs. 1, 200.

4. Then it proceeds to state the other creditors who were to be paid and the consideration is said to have been received in. that manner.

5. The 3rd defendant pleaded that there was no privity between him and the plaintiff and that there was no cause of action.

6. The District Munsif dismissed the suit against the 3rd defendant and passed a decree against the 1st and 2nd defendants. On appeal the Subordinate Judge reversed the judgment of the District Munsif and remanded the case for trial.

7. On appeal against this order of remand <ORG> set aside the order of remand and directed the Subordinate Judge to dispose of the case in the light of the observations made by <ORG>. One of the questions which <ORG> wanted the Sab-Judge to decide was whether the 3rd defendant undertook orally to pay the money to the plaintiff and pointed out that if the oral agreement was proved, the plaintiff would be entitled to a decree against the 3rd defendant, but if it was not proved, then the question whether the principle in Tweddle v. <NAME> (1861) 1 B. & S. 393 : 30 L.J. Q.B. 255 : 8 Jur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 134 R.R. 610 would apply would have to be considered.

8. The Subordinate Judge found on the evidence that the oral agreement was not proved and that the 3rd defendant did not apart from the obligation under Ex. A orally agree to pay the sum to the plaintiff. He, however, held following the decisions in <CITATION> 43 C.W.N. 625 : 41 M. 488 : 22 M.L.T. 543 : (1918) M.W.N. 98 : 34 M.L.J. 193 : 8 L.W. 118, Deb Narain Dutt v. <NAME> 20 Ind. Cas. 630 : 41 C. 137 : 17 C.W.N. 1143 : 18 C.L.J. 603 and <CITATION> 64 Ind. Cas. 962 : 20 L.W. 721 : 47 M.L.J 517 : (1924) M.W.N. 838 : A.I.R. 1924 Mad. 861 : 35 M.L.T. 103 that the principle in Twiddle v. <NAME> (1861) 1 B. & S. 393 : 30 L.J. Q.B. 255 : 8 Jur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 134 R.R. 610 did not apply and passed a decree against the 3rd defendant also.

9. Against that judgment this second appeal was filed which came on before <NAME> and <NAME>, JJ., and they were of opinion that in view of the conflict of decisions on the point of law it was desirable to have the decision of a Full Bench on the question.

10. On the findings of facts of the <ORG> below the only question for decision is whether a contract between A and B to pay C who is a creditor of A would without more entitle C to sue B. We have already set out the sale-deed and we think that on the terms of the sale-deed there is no trust express or implied created and that the sale deed merely constitutes the vendee the agent of the vendor to pay some of his creditors.

11. The law in England is that the mere payment of money by A to B with a direction to pay it to C in cases where B is not C's agent is revocable and confers no right of action. A distinction has been drawn between cases where the defendant has constituted himself the agent of plaintiff to pay him a particular sum of money received from a third person and cases where there is no such agency of trust express or implied.

12. A similar view has been taken in India in <CITATION> 12 Ind. Cas. 353 : M. 348 : (1911) 2 M.W.N. 227 : 10 M.L.T. 300 : 21 M.L.T. 983. There it was held that where A transferred his property to B in consideration of B agreeing to pay certain sums to third persons, A was himself entitled to sue B for the recovery of those sums as if they were due to him in case of B's failure to pay the creditors within a reasonable time The learned Judges have referred to all the cases bearing on the point. We may also refer to <CITATION> 49 Ind. Cas. 313 : 24 M.L.T. 260 : 35 M.L.J. 692.

13. The question has, therefore, to be decided on the footing that no trust has been created, that the 3rd defendant was not plaintiff s agent and that there was no novation or obligation undertaken by the 3rd defendant to the plaintiff.

14. The rule of Common Law laid down in <NAME> v. <NAME> (1861) 1 B. & S. 393 : 30 L.J. Q.B. 255 : 8 Jur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 134 R.R. 610 is that a stranger to the consideration cannot sustain an action on the promise made between two persons unless he has in some way intervened in the agreement.

15. As regards relief given by Courts of Equity, <NAME> v. <NAME> (1882) 30 Ch. D. 57 : 54 L.J. Ch. 1154 : 53 L.T. 306 : 67 W.R. 803 gives a right of action to the third person only when the person with whom the contract is made is a trustee express or implied for the third person for whom the benefit is intended. The conditions necessary to be fulfilled before a person not a party to a contract can enforce any claim under it in a Court of Equity are laid down in <NAME> v. <NAME> (1882) 30 Ch. D. 57 : 54 L.J. Ch. 1154 : 53 L.T. 306 : 67 W.R. 803, in In re Empress Engineering Co. (1881) 16 Ch. D. 125 : 43 L.T. 742 : 29 W.R. 342 and in In re <ORG> (1884) 25 Ch. D. 103 : 53 L.J. Ch. 290 : 59 L.T. 219 : 31 W.R. 131. The observations of Lord <NAME> in <NAME> v. Metropoliian Ry, Warehousing Co. (1871) 6 Cr. A. 671 have been dissented from as stating the rule too widely.

16. Section 23 of the Specific Relief Act deals with the persons for whom contracts may be specifically enforced and Clause (c) of, that section enacts that specific performance may be obtained where the contract is a settlement on marriage, or a compromise of doubtful rights between members of the same family by any person beneficially entitled thereunder.

17. There has been great divergence of opinion in <ORG>s in India as to how far a stranger to a consideration can enforce the contract and how far the rule in <NAME> v. <NAME> (1861) 1 B. & S. 393 : 30 L.J. Q.B. 255 : 8 Jur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 134 R.R. 610 is applicable in India. There are decisions which decide that the rule of English Law as laid down in <NAME> v. <NAME> (1861) 1 B. & S. 393 : 30 L.J. Q.B. 255 : 8 Jur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 134 R.R. 610 and <NAME> v. <NAME> (1882) 30 Ch. D. 57 : 54 L.J. Ch. 1154 : 53 L.T. 306 : 67 W.R. 803 will apply to cases in India. There are other decisions which are to the effect that the principle in <NAME> v. <NAME> (1861) 1 B. & S. 393 : 30 L.J. Q.B. 255 : 8 Jur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 134 R.R. 610 founded as it is on English Law on the form of action known as assumpsit is not applicable to contracts in India, governed by the Indian Contract Act where all the parties are before the <ORG> and the <ORG> can do complete justice between; them. There are other decisions which take a middle course and decide that the rule in <NAME> v. <NAME> (1861) 1 B. & S. 393 : 30 L.J. Q.B. 255 : 8 Jur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 134 R.R. 610 is applicable subject to certain specified exceptions which we shall refer to later on.

18. It is difficult to reconcile the various views and we think the balance of authority is in favour of the view that a stranger to a contract cannot without more sue to enforce it.

19. <CITATION> 2 Ind. Cas. 460 : 31 A. 352 : 6 A.L.J. 427 A mortgaged certain properties to B. He sold the property to C and left with him sufficient money out of the consideration to redeem B, B obtained a decree on his mortgage and as the sale-proceeds were insufficient to meet his claim he applied for a personal decree against C on the ground that C was liable as he retained part of the consideration payable to A agreeing to pay it to B. It was held by <NAME> and <NAME>, JJ., that C did not become liable to B, The learned Judges observed: "It is contended that by retaining in his hands part of the purchase-money and expressly or impliedly agreeing to pay the amount to <NAME> the respondent became personally liable. In our opinion this contention is not sound. <NAME> was no party to the contract between <NAME> and Pandit <NAME>. No Indian or English case has been cited to us in which it has been ever held or suggested that the transferee of the equity of redemption in mortgaged property becomes personally liable to the mortgagee" The case was carried in appeal to <ORG> and the decision of their Lordships of <ORG> is reported as <CITATION> 13 Ind. Cas. 304 : 34 A. 63 : 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 : 39 I.A. 7 (P.C.) and the decision of <ORG> was upheld. Lord <NAME> observed: "This is a perfectly plain case. The action is brought by a mortgagee to enforce against a purchaser of the mortgaged property an undertaking that he entered into with his vendor. The mortgagee has no right to avail himself of that. He was no party to the sale. The purchaser entered into no contract with him, and the purchaser is not personally bound to pay this mortgage-debt."

20. <CITATION> 43 C.W.N. 625 : 41 M. 488 : 22 M.L.T. 543 : (1918) M.W.N. 98 : 34 M.L.J. 193 : 8 L.W. 118 the question arose as to a third party's right to sue on a contract Sir <NAME>, C.J., and <NAME>, J., were of opinion that a jenmi was not entitled to sue on an assignment by a melkanomdar to a kanomdar whereby as between them the kanomdar agreed to pay the rent due by the melkanomdar to the jenmi. The case arose out of a difference of opinion between <NAME> and <ORG>., <NAME>, J, held that the jenmi can sue whereas <NAME>, J., differed. Sir <NAME>, C.J., observed: "One of the questions argued before US was whether the plaintiff is entitled to sue on this contract made between the 1st defendant and 2nd defendant. As regards this I agree with <NAME>, J., that he cannot, and that the question is concluded by the recent decision of <ORG> in <CITATION> 13 Ind. Cas. 304 : 34 A. 63 : 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 : 39 I.A. 7 (P.C.) where Lord Macnaghten in delivering; their Lordships' judgment held that a purr' chaser's contract with his vendor to pay off a mortgage on the property sold could not be enforced by the mortgagee." Then the ; learned Chief Justice refers to <CITATION> 7 Ind. Cas. 237 : 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 distinguishes the case on the ground that it was a contract made by a guardian for the benefit of a minor in contemplation ' of her marriage.

21. The question has been elaborately considered by Ayling and <NAME>, JJ., in <CITATION> 23 Ind. Cas. 951 : 38 M. 753 at p. 763 : 26 M.L.J. 127 That was a case where A mortgaged his laudato B and part of the consideration was B's promise; to discharge a debt of A to C.C. sued B and it was held that C who was a stranger to the contract cannot sue B for the payment of his debt without joining A as a party. The learned Judges deal exhaustively with the cases and lay down the general rule of law to be that a party who is a stranger to a contract cannot sue on the contract. The exceptions which the learned Judges enunciate are (a) the creation of a trust in favour of the plaintiff in respect of the amount sued for; (b) the creation, of a charge on immoveable property by the promisior or allocation by the promisor of the specific money in suit in favour of the plaintiff; (c) the creation of a settlement on marriage in which the plaintiff may be beneficially entitled as provided by Section 23 of the Specific Relief Act and (d) estoppel as against the promisor owing to transact tions between the plaintiff and the promisor.

22. This question again arose in O.S. No. 325 of 1926 on the Original Side of the High Court. <NAME>, <NAME>, after an exhaustive review of the authorities came to the conclusion that a second mortgagee who retained in his hands sufficient portion of the consideration to discharge the first mortgage and who does not discharge the first mortgage cannot be sued by the first mortgagee on the covenant between the mortgagor and the second mortgagee. This case was carried in appeal (O.S.A. No. 95 of 1927) where Sir <NAME>, C.<NAME>., and <NAME>, <NAME>., upheld the decision of <NAME>, <NAME>. Tae learned <NAME>udges observed: "The learned <NAME>udge held that as there was no privity between the plaintiff and 2nd defendant with regard to the mortgage, Ex. A(1), the plaintiff could not claim any benefit under it.... The point of law has been fully discussed by the learned <NAME>udge and he has considered all the important authorities. It is not disputed as a general rule of law that only those who are parties to a contract can sue on it. The <ORG> decisions in <CITATION> 13 Ind. Cas. 304 : 34 A. 63 : 16 C.W.N. 97 : 11 M.L.T. 6 : 9 A.L.<NAME>. 37 : (1912) M.W.N. 32 : 15 C.L.<NAME>. 68 : 14 Bom. L.R. 1 : 21 M.L.<NAME>. 1158 : 39 I.A. 7 (P.C.) and in Nanku <NAME> v. Kamta <NAME> 95 Ind. Cas. 970 : 26 C.W.N. 771 : 3 P.L.T. 637 : A.I.R. 1923 P.C. 54 (P.C.) are conclusive that the reservation of part of the purchase-money to pay a previous mortgagee does not of itself create a trust in favour of that previous mortgagee nor can the prior mortgagee make the purchaser personally liable. The case of such a reservation in a mortgage is indistinguishable from its reservation in a sale-deed. This decision was given on the 1st of May this year. In view of this decision of <NAME>, <NAME>., which was confirmed in appeal we think we may take it as settled law in Madras that a stranger to a contract cannot without more sue to enforce it. It is unnecessary, therefore, to refer with details to cases in Madras which took the opposite view. This view was based upon a decision of their Lordships of the <ORG> in <CITATION> 7 Ind. Cas. 237 : 32 A. 410 : 14 C.W.N. 865 : 7 A.L.<NAME>. 871 : (1910) M.W.N. 313 : 8 M.L.T. 147 : 12 C.L.<NAME>. 205 : 12 Bom. L.R. 638 : 20 M.L.<NAME>. 614 : 37 I.A. 152 (P.C.). In that case there was an arrangement made between the defendant and the father of the plaintiff who was then a minor on the occasion and in consideration of her marriage with the defendant's son who was also a minor that a certain sum should be paid to the plaintiff for her betel-nut expenses, etc, from the date of the marriage. A suit was filed to recover the arrears of allowance and the contention was that the plaintiff being a stranger to the contract could not sue on it, and reliance was placed on <NAME> v. <NAME> (1861) 1 B. & S. 393 : 30 L.<NAME>. Q.B. 255 : 8 <NAME>ur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 134 R.R. 610. Their Lordships of the <ORG> distinguished the case and said that the rule in <NAME> v. <NAME> (1861) 1 B. & S. 393 : 30 L.<NAME>. Q.B. 255 : 8 <NAME>ur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 134 R.R. 610 had no application to the circumstances of the case which they were trying in which the agreement specifically charged immoveable property for the payment of the allowance and the plaintiff was the only person beneficially entitled under it. Their Lordships pointed out that in India where marriages were arranged during minority and contracts for the benefits of the minors were entered into by parents and guardians, it would cause serious injustice if the strict rule of English Law were applied. Their Lordships in dealing with the contention based on the rule laid down in <NAME> v. <NAME> (1861) 1 B. & S. 393 : 30 L.<NAME>. Q.B. 255 : 8 <NAME>ur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 134 R.R. 610 observed "First it is contended, on the authority of <NAME> v. <NAME> (1861) 1 B. & S. 393 : 30 L.<NAME>. Q.B. 255 : 8 <NAME>ur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 134 R.R. 610, that as 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 Lordships' opinion applicable to the facts and circumstances of the present case. Here the agreement executed by the defendant specifically charges immoveable 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 clearly entitled to proceed in equity to enforce her claim. Their Lordships desire to observe that in India and among communities circumstanced as the Muhammadans, among whom marriages are contracted for minors by parents and guardians it might occasion serious injustice if the Common Law doctrine was applied to agreements or arrangements entered into in connection with such contracts."

23. This case has in some decisions of this Court been taken as laying down the rule that Indian Courts are not bound by the Common Law doctrine laid down in <NAME> v. <NAME> (1861) 1 B. & S. 393 : 30 L.J. Q.B. 255 : 8 Jur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 134 R.R. 610. <CITATION> 43 C.W.N. 625 : 41 M. 488 : 22 M.L.T. 543 : (1918) M.W.N. 98 : 34 M.L.J. 193 : 8 L.W. 118, one of us (<NAME>, J.,) took this view while Sir <NAME>, C.J. and <NAME>, J., took the opposite view. He referred to the numerous cases on the subject. The view he was inclined to take was that having regard to the definition of the word 'contract' in the Indian Contract Act and the observations of their Lordships of <ORG>, the ruling in <NAME> v. <NAME> (1861) 1 B. & S. 393 : 30 L.J. Q.B. 255 : 8 Jur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 134 R.R. 610 has no application and it was open to us to follow the rule laid down in <NAME> v. <NAME> (1688) 2 Lev. 210 : 83 E.R. 523 and earlier cases. We may also refer to <NAME> v, <NAME> 69 Ind. Cas. 957 : 16 L.W. 283 : 43 M.L.J. 129 : (1922) M.W.N. 42 : 31 M.L.Y. 156 : A.I.R. 1922 Mad. 397.

24. In Sungarayya v. Subbqya 64 Ind. Cas. 962 : 20 L.W. 721 : 47 M.L.J 517 : (1924) M.W.N. 838 : A.I.R. 1924 Mad. 861 : 35 M.L.T. 103 and in <CITATION> 99 Ind. Cas. 676 : 25 L.W. 190 : 38 M.L.T. 124 : A.I.R. 1927 Mad. 421 the same view was taken by <NAME>, J., and <NAME>, J.

25. A similar view was taken in <NAME> v. Chuni Lal Ghose 20 Ind. Cas. 630 : 41 C. 137 : 17 C.W.N. 1143 : 18 C.L.J. 603 but it was not followed in <CITATION> 96 Ind. Cas. 846 : 53 C. 922 : 30 C.W.N. 812 : A.I.R. 1926 Cal. 1009 and <CITATION> 114 Ind. Cas. 685 : 55 C. 1315 : 32 C.W.N. 634 ; 47 C.L.J. 587 : A.I.R. 1928 Cal. 518 : Ind. Rul. (1929) Cal. 258.

26. We do not think that in view of the current of authority in Madras which we have referred to and especially the last pronouncement by <NAME>, <NAME>,, confirmed on appeal by Sir <NAME>, C.<NAME>., and <NAME>, <NAME>., the view which some of our learned brothers took can be followed.

27. Cases where on a partition a benefit is secured to the female members of the family who would be entitled in law to maintenance or cases of family settlement stand on a different footing.

28. In <NAME> v. <NAME> 4 Ind. Cas. 1083 : 33 M. 238 : 19 M.L.J. 739 : 8 M.L.T. 249 there was a deed of partition whereby provision was made for the plaintiff's maintenance and it was held that although the plaintiff was no party to the document she was entitled to sue. The learned Judges held that a person who was not a party to a document but in whose favour a charge was created by such document was entitled to maintain a suit to enforce its terms, either as the actual beneficiary or as the charge-holder, and referred to Rukhmabai v. <NAME> 6 Bom. L.R. 421 and <CITATION> 29 A. 151 : A.L.J. 13 : A.W.N. (1907) 3.

28. <CITATION> 24 Ind. Cas. 943 : 38 M. 788 Oldfield, J., held that a person though not a party to at contract could sue to enforce its terms if it was a settlement by which some provision was made for him as a member of the family, e.g., for maintenance or marriage though the same was not made a charge.

29. We may also in this connection refer to <CITATION> 16 Ind. Cas. 428 : (1912) M.W.N. 908 : 12 M.L.T. 288 : 23 M.L.J. 355, <CITATION> 12 Ind. Cas. 185 : (1911) 2 M.W.N. 524 : 10 M.L.T. 214 : 21 M.L.J. 918 and <CITATION> 13 Ind. Cas. 205 : (1912) M.W.N. 39 : 11 M.L.T. 14 : 22 M.L.J. 159. Reference has been made by the respondent's Advocate to the observations of Coutts-Trotter. C.J., in <CITATION> 101 Ind. Cas. 386 : A.I.R. 1928 Mad. 23. All that was decided was that the case fell within the rule in <CITATION> 7 Ind. Cas. 237 : 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.). After referring to that case and to the provisions of Hindu Law he observes: "All I desire to say is that I think that in view of that the provisions of law in such matters should be applied with greater flexibility than they would be applied in England and that it is quite possible to argue that such a case as this if it occurred in England would be covered by the general principle I have referred to."

30. Cases of estoppel or of novation obviously stand on a different footing and have nothing to do with the principle laid down in <NAME> v. <NAME> (1861) 1 B. & S. 393 : 30 L.J. Q.B. 255 : 8 Jur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 134 R.R. 610.

31. We may point out in this connection that the view taken in <NAME> v. Chumlal Ghost 20 Ind. Cas. 630 : 41 C. 137 : 17 C.W.N. 1143 : 18 C.L.J. 603 by <NAME>, C.J., and <NAME>, J., which lays down broadiy that the doctrine in <NAME> v. <NAME> (1861) 1 B. & S. 393 : 30 L.J. Q.B. 255 : 8 Jur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 134 R.R. 610 is inapplicable to British Courts in India and that the aim of <ORG> in British India is to do complete justice in one suit according to the general principles of justice, equity and good conscience, has not been followed in later cases; We may refer to <CITATION> 96 Ind. Cas. 846 : 53 C. 922 : 30 C.W.N. 812 : A.I.R. 1926 Cal. 1009. In that case a patnidar created a darpatni and the darpatnidar created a sepatni in favour of another person. The sepatnidar was to pay certain sums due both to the patnidar and darpatnidar. The patnidar sued the sepatnidar for the rent due. It was held that he could not sue. <NAME>, J., referred to and discussed the English cases and was of opinion that the rule laid down by <NAME>, C.J., was too wide, and the learned Judge was inclined to support the decision in <NAME> v. <NAME> 20 Ind. Cas. 630 : 41 C. 137 : 17 C.W.N. 1143 : 18 C.L.J. 603 on the ground that it came within the ruling of <NAME>, in <NAME> v. <NAME> (1882) 30 Ch. D. 57 : 54 L.J. Ch. 1154 : 53 L.T. 306 : 67 W.R. 803.

32. <CITATION> 114 Ind. Cas. 685 : 55 C. 1315 : 32 C.W.N. 634 ; 47 C.L.J. 587 : A.I.R. 1928 Cal. 518 : Ind. Rul. (1929) Cal. 258 it was held that where a life policy was expressed to be for the benefit of the wife of the assured, she was not entitled to sue as no trust was created in her favour and she was a third party to the contract. So far as the decision that no trust was created in her favour was concerned, the learned Judges dissented from the view taken in <CITATION> 20 Ind. Cas. 934 : 37 M. 483 : 25 M.L.J. 65 : (1913) M.W.N. 697 : 14 M.L.T. 363 and to that extent this case may not be authority binding on us, but the view of <NAME>, <NAME>, and <NAME>, J., on the general question of the legal consequences following from that view supports the view taken in the Madras cases which we already referred to. <NAME>, J., at page 1321 <NAME> of 55 C--[Ed.] refers to the rule of English Law that if A contracts with B for a benefit to be given to C although that was the object and purpose of the contract, C may not sue on that contract unless in certain excepted cases and then refers to the excepted sases. After referring to <CITATION> 7 Ind. Cas. 237 : 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.) the learned Judge deals with <NAME> v. Chuni Lal Ghase 20 Ind. Cas. 630 : 41 C. 137 : 17 C.W.N. 1143 : 18 C.L.J. 603, and attempts to bring that case within the exceptions laid down in the English cases on the ground of the special facts of that case. The learned Judge, however, agrees with the criticism passedon that case by <NAME>, J., in <CITATION> 96 Ind. Cas. 846 : 53 C. 922 : 30 C.W.N. 812 : A.I.R. 1926 Cal. 1009, <NAME>, <NAME>, took the view that it was wrong on the authority of either <CITATION> 7 Ind. Cas. 237 : 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.), or <NAME> v. Chuni Lal <NAME> 7 Ind. Cas. 237 : 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.), to suppose that in India persons who were not parties to a contract could be admitted to sue thereon except where there was an obligation in equity amounting to a trust arising out !of the contract or in case of communities where marriages were contracted for minors by parents and guardians. The learned Chief Justice observed: "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. A trust may be founded on the contract and is capable of being enforced by a party to the trust in appropriate proceedings as was pointed out in <NAME> v. <NAME> (1852) 10 Hare 163 : 68 E.R. 882 : 90 R.R. 314. It is another matter altogether to say that a person not a party to a contract may bring a suit upon the contract by reason of near relationship to the promisee. Nearness of relationship is a fact which, like many other facts, cannot be disregarded in determining the question whether or hot a trust arises out of is founded on contract but it has no other importance. Cases such as the present can, be decided and ought to be decided on the settled principles of equity. In <NAME> v. <ORG> (1892) 1 Q.B. 147 : 61 L.J.Q.B. 128 : 66 L.T. 220 : 40 W.R. 230 : 56 J.P. 180, the <ORG> considered whether the policy amounted to a trust for the widow and, having found that it did not, determined the matter by the ordinary law of contract. This, in my judgment, is, the only method which can be justified in principle. To hark back to such cases as <NAME> v. <NAME> (1688) 2 Lev. 210 : 83 E.R. 523 and <NAME> v. <NAME> (1680) 86 E.R. 5 : 1 Ven. 6, is, in my judgment, a clear mistake, and the mistake is not cured by the circumstance that, under the Contract Act , the definition of 'consideration' is wider than in English Law."

33. A similar view was taken in <CITATION> 19 Ind. Cas. 736 : 37 B. 471 : 15 Bom. L.R. 320 where after holding that though the policy of insurance effected by the assured upon his own life was for the benefit of his wife, it did not create any trust in her favour, the learned Judges dealt with the question whether she could sue on the contract apart from any trust and observed: "It was, however, argued that as under Section 2 , Clause (d) of the Contract Act the consideration might be provided by some other person, the plaintiff could sue oh a policy the consideration for which was provided by her husband. There is, however, nothing in the present case to show that the plaintiff was either the promisor of the promisee and, therefore, a party to the agreement. There is nothing in the Act to show an intention that a person not a party to the contract can sue on it. So far as it goes, Section 2(i) is an indication to the contrary". The learned Judges distinguish <CITATION> 6 M. 351 and Chinnaya Rau v. Ramaya 4 M. 137 on the ground that there was a contract between the parties in those cases. This decision was referred to with approval in <CITATION> 85 Ind. Cas. 581 : 48 b. 673 : 26 Bom. L.R. 1035 : A.I.R. 1925 Bom. 353.

34. <CITATION> not a party or privy to a contract could not maintain an action to secure any benefit conferred on him by it. In that case A. executed a mortgage in favour of the plaintiff and subsequently sold the property to B. In the recital in the, sale-deed B agreed to pay off the mortgage and the plaintiff sued B. It was held that the plaintiff cannot avail himself of the stipulation in the sale-deed between the mortgagor and the vendee that the vendee was to redeem the mortgage. <NAME>, J., in the course of the judgment refers to <NAME> v. <NAME> 95 Ind. Cas. 970 : 26 C.W.N. 771 : 3 P.L.T. 637 : A.I.R. 1923 P.C. 54 (P.C.), where their Lordships of the Privy Council held that a recital in a sale by A to B that B is to pay of a mortgage would give no cause of action to the mortgagee to sue B. The learned Judge quotes the judgment of Lord <NAME> who dismissed the appeal with the following remark "Their Lordships have considered this case and they think it is clear that no personal liability was incurred by the purchasers of the equity of redemption. Their Lordships, therefore, think that the decree of <ORG> was right and that the point made by the appellant failed."

35. It is argued that where all the parties to a contract are before the <ORG> and complete justice can be done between them, there is nothing to prevent the <ORG> from giving a decree to a person although he is not a party to the contract and that this is one of the exceptions that should be grafted on the rule in <NAME> v. <NAME> (1861) 1 B. & S. 393 : 30 L.J. Q.B. 255 : 8 Jur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 134 R.R. 610, and reliance was placed on the observations of <NAME>, J., in <CITATION> 23 Ind. Cas. 951 : 38 M. 753 at p. 763 : 26 M.L.J. 127, where the learned Judge deals with the question as to how far the rule in <NAME> v. <NAME> (1861) 1 B. & S. 393 : 30 L.J. Q.B. 255 : 8 Jur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 134 R.R. 610, can be said to be a rule of procedure. There is nor thing in the observations of <NAME>, J. to indicate, that the mere presence of parties would make the rule in <NAME> v. <NAME> (1861) 1 B. & S. 393 : 30 L.J. Q.B. 255 : 8 Jur. (N.S.) 332 : 4 L.T. 468 : 9 W.R. 781 : 121 E.R. 762 : 134 R.R. 610 inapplicable.

36. Reliance has also been placed on the judgment of <NAME>, J., in <CITATION> 64 Ind. Cas. 962 : 20 L.W. 721 : 47 M.L.J 517 : (1924) M.W.N. 838 : A.I.R. 1924 Mad. 861 : 35 M.L.T. 103, where the learned Judge after referring to <CITATION> 23 Ind. Cas. 951 : 38 M. 753 at p. 763 : 26 M.L.J. 127, and the observations of Sir <NAME>, C.J., in <NAME> v. Chuni Lal Ghose 20 Ind. Cas. 630 : 41 C. 137 : 17 C.W.N. 1143 : 18 C.L.J. 603 observed: "But apart from that where a Court has before it all persons and is in a position to do complete Justice to the case, it would be straining the law to hold that the suit should fail on the ground that the defendant did not Contract with the plaintiff to pay the amount Which he contracted to pay on his behalf. The learned Judge also refers to the observations of <NAME>, J., in <CITATION> 75 Ind. Cas. 1016 : 18 L.W. 530 : 45 M.L.J. 69 A.I.R. 1924 Mad. 103.

37. With respect, it seems to us that if the law is that a person hot a party to a contract cannot sue on the contract though a benefit is secured to him and unless the case falls within the exceptions indicated in the cases above referred to the plaintiff has no cause of action, it is no answer to say that all the parties are before the <ORG>.

38. Order I, Rule 3, of the Civil Procedure Code is very clear. There should be a right to relief in respect of the transaction set out is the plaint before a party can be added as defendant. The addition of others would not so far as he is concerned alter his rights. We do not think that there is any legal basis for holding that the mere joinder of the original parties to the contract would give the plaintiff a cause of action which does not exist before the suit.

39. We are of opinion that where all that appears is that a person transfers property to another and stipulates for the payment of money to a third person, a suit to enforce that stipulation by the third party will not lie.


JUDGMENT <NAME> and <NAME>, J.

1. These cases were tried before a Judge and Jury. The Judge agreeing with a majority of the Jury, four to one, convicted the prisoners of an offence under Section 302 read with Section 149 of the Indian Penal Code, and sentenced them to transportation for life. The appeals, therefore, cannot succeed, unless the appellants can satisfy us that there was some misdirection by the learned Judge in his charge to the Jury. The first criticism upon the action of the Judge is that, whilst the verdict was delivered on the 29th May 1908, and the sentence was passed on the 5th June following, his charge to the Jury was not written out until the 29th June. Reference has been made to Section 367 of the Code of Criminal Procedure. That section does not assist the appellants, for there is a proviso that "in trials by Jury, the <ORG> need not write a judgment, but the <ORG> of Session should record the heads of the charge to the Jury." There is nothing there as to when it must be written, as in the case of a judgment by the <ORG> dealt with in a preceding part of the section. If we refer to the Circular Orders of this <ORG>, Chapter I, Order 59, we find an express order to the effect that it is not necessary that the direction to the Jury should be reduced to writing before delivery, but it is essential that the "heads of charge" ( Section 367 ) placed upon the record should represent with absolute accuracy the substance of the charge, and be such as to enable the High <ORG>, in the event of an appeal, to see distinctly, whether the case was fairly and properly placed before the Jury. Whilst, therefore, there is nothing in the point to assist the appellants, we think it is very unsatisfactory that the charge to the Jury was not, in the case before us, written out until the 29th June, nearly three weeks after the sentence. We are strongly of opinion that in these cases such charge ought to be written out as soon as possible after the charge to the Jury has been actually delivered, and when the facts of the case are fresh in the mind of the Judge.

2. The first point of misdirection is that the Judge did not read the medical evidence to the Jury, but one has only to look at the charge to see that there were frequent references to the medical evidence. There is nothing that makes it incumbent upon any Judge to read the whole of the depositions of the witnesses to the Jury, and, we think, in the present case the medical evidence was sufficiently attracted to their attention.

3. Then it is said that the Judge did not sufficiently warn the Jury that the omission of the prosecution to call certain witnesses, and particularly the palki-bearers, raised a presumption that their evidence would be unfavourable to the prosecution, and reference is made to Section 114 Ill. (g) of the Evidence Act . It is perfectly true that in his charge we do not find the word "presumption," but again and again the Judge has pointed out to the Jury that they might properly draw any inferences they pleased from the fact that these witnesses were not called. There is no substance in this point.

4. Then it is suggested that the Judge did not sufficiently explain to the Jury the provisions of Section 141 of the Indian Penal Code. But it appears from a note made by the Judge that in the charge to the Jury they were told that, if the five persons went in a body with the common object of murdering <NAME>, and, if he was killed in the prosecution of that common object, then, no matter which of them struck the blow or blows, which caused death, all would be equally guilty of murder under Section 302 , read with Section 149 of the Indian Penal Code. We scarcely think we should be justified in saying, if the Judge, as appears, so addressed the Jury, that there was any real misdirection on this point.

5. There only remains the question whether the <ORG> below was wrong in admitting oral evidence of a statement made to the police by a witness to corroborate that witness's deposition at the trial. The appellant relies upon two reported cases, namely, Queen-Empress v. <NAME> (1898) 2 C.W.N. 702 and the Full Bench case of <CITATION> (1907) I.L.R. 32 Bom. 111.

6. In the former it was held that the general provisions of Section 157 of the Indian Evidence Act of 1872 were overridden by the special provisions of Section 162 of the Code of Criminal Procedure. But the Code then under consideration was the Code of 1882; the language of the corresponding Section 162 of the present Code is materially different. That case is, consequently, distinguishable. In the other case the point now raised was not decided by the Full Bench in Bombay or before the <ORG>, though there are some obiter dicta upon it by one of the learned Judges, Mr. Justice <NAME>.

6. The language of the respective Codes of 1872, 1882 and 1898 are different. In that of 1872 Section 119 enacted: "No statement so reduced into writing shall be signed by the person making it, nor shall it be treated as part of the record or used as evidence." Section 162 of the Code of 1882, on the other hand, was thus expressed: "No statement, other than a dying declaration, made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced to writing, be signed by the person making it or be used as evidence against the accused." The present Section 162 provides that: "No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if taken down in writing, be signed by the person making it, nor shall such writing be used as evidence."

7. In the case of Reg. v. <NAME> (1874) 11 Bom. H.C. 120 it was held that the provisions of Section 155 of the Indian Evidence Act of 1872 were not controlled by Section 119 of the Act of 1872, the Criminal Procedure Code then in force. This view was approved of by <NAME> in <CITATION> (1881) I.L.R. 8 Calc. 154. The point may be shortly summed up thus. Section 157 of the Evidence Act allows the statement by way of corroboration to be proved. Section 162 of the Criminal Procedure Code, now in force, enacts that, if any such statement as is now under consideration is taken down in writing, the writing cannot be used as evidence. If it be said that it is a refinement to hold that the writing cannot be admitted, but that the statement, if not reduced to writing, can, the answer is that the <ORG> has chosen to alter its language in Section 162 of the present Criminal Procedure Code , drawing a distinction between the statement and the writing.

8. We may add that we have not overlooked the proviso to the present section, but that is confined to and for the benefit of the defence, as the prosecution have free access to all the police papers.

9. There is nothing, therefore, in the special provision of the existing Code to over-ride the general provisions of the Evidence Act as to the proof by oral evidence of former statements; consequently the oral evidence here objected to was rightly admitted by the lower <ORG>. "We may add that, apart from this, there is sufficient evidence on the record to sustain the conviction.

10. The result is that we affirm the conviction and sentences and dismiss these appeals.


JUDGMENT <NAME>, J.

1. These three appeals which have been filed in this Court with certificates issued by <ORG> under Art. 132(1) of the Constitution are directed against the orders passed by the said <ORG> by which clause 11B of Iron and Steel (Control of Production & Distribution) Order, 1941 (hereinafter called the Order) has been declared unconstitutional and inoperative, and the criminal proceedings commenced against M/s. <NAME> and others under the said clause 11B read with s. 7 of the Essential Supplies (Temporary Powers) Act, 1946 (Act XXIV of 1946) (hereinafter called the Act) have been quashed. M/s. <NAME> Ltd., is a private limited company having its registered office at Chawri Bazar, Delhi. Since 1948, it has been registered as a stockholder by the Iron and Steel Controller (hereinafter called the Controller) under clause 2(d) of the Order. It appears that under clause 11B of the Order notifications had been issued from time to time giving a schedule of base prices in respect of iron and steel. On December 10, 1949, the Controller issued a notification under clause 11B decreasing by Rs. 30 per ton the prices already fixed for all categories of steel. Several criminal cases were instituted (Nos. 385-410 of 1954) against the said company, its three directors, its general manager and two salesmen (hereinafter called respondents 1 to 7) on the allegation that they had sold their old stock of steel for prices higher than those prescribed by the said notification of December 10, 1949. When the respondents had thus to face several criminal proceedings they filed three writ petitions in <ORG> against the Union of India, the State of Punjab and others (hereinafter called the appellants). By their Writ petition No. 36 of 1954 (23-3-54) they prayed for a direction, order or writ restraining the appellants from enforcing or giving effect to clause 11B or the said notification, as well as a writ or order quashing the criminal proceedings commenced against them. The decision in this writ petition has given rise to Criminal Appeal No. 36 of 1955. Writ petition No. 37 of 1954 (23-3-54) prayed for a similar order specifically in respect of the criminal cases Nos. 385-410 of 1954 then pending against the respondents, and asked for an interim stay of the said proceedings. The order passed on this writ petition has given rise to Criminal Appeal No. 37 of 1955. It appears that under some of the criminal proceedings filed against the respondents orders for search had been passed by the trial Magistrate on May 12, 1953. These orders were challenged by the respondents by their Writ Petition No. 52-D of 1954 (7-4-54). An appropriate writ was asked for quashing the warrants issued under the said orders. From the orders passed on this writ petition, Criminal Appeal No. 38 of 1955 arises. In all these writ petitions the respondents' contention was that clause 11B was invalid and unconstitutional as it violated Arts. 19(1)(f) and (g) as well as Art. 31 of the Constitution. They also urged that the said clause was ultra vires the powers conferred on <ORG> by s. 3 of the Act. The notification issued by the Controller on December 10, 1949, was challenged by the respondents on the ground that it was issued under a clause which was invalid and was otherwise unreasonable and void. In substance the <ORG> has upheld the respondents' plea that clause 11B is ulra vires as it is violative of the fundamental rights guaranteed under Arts. 19(1)(f) and (g) of the Constitution. In the present appeals the appellants seek to challenge the correctness of this conclusion. Thus the main point which calls for our decision in this group of appeals is whether clause 11B of the Order is valid or not.

2.The impugned clause forms part of the Order which has been issued by <ORG> in exercise of its powers conferred by sub-r. (2) of r. 81 of the Defence of India Rules. Before considering the appellant's contention that clause 11B is valid it would be necessary to refer briefly to the parent Act, and to trace the vicissitudes through which it has passed, to examine its material provisions and their effect on the controversy in the present appeals. It is well-known that on September 29, 1939, the Defence of India Act was passed to provide for special measures to ensure the public safety and interest and the defence of British India and the trial of certain offences. The Act and the Rules framed thereunder were enacted to meet the emergency which had arisen as a result of the Second World War. Rule 81(2)(b) of the Rules authorised <ORG> inter alia, so far as appears to it necessary or expedient for securing the defence of British India or the efficient prosecution of war or for maintaining supplies and services essential to the life of the community, to provide by order for controlling the prices or rates at which articles or things of any description whatsoever may be sold or hired and for relaxing any maximum or minimum limits otherwise imposed on such prices or rates. This Act was followed by Ordinance No. XVIII of 1946, which was promulgated on September 25, 1946. Clauses 3 and 4 of this Ordinance are relevant for our purpose. Clause 3(1) provides inter alia that <ORG>, so far as appears to it necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their their equitable distribution and availability at fair prices, may by notified order provide for regulating or prohibiting the production, supply and distribution thereof, and trade and commerce therein; sub-clause 2(c) adds inter alia that without prejudice to the generality of the powers conferred by sub-s. (1), an order made thereunder may provide for controlling the prices at which any essential commodity may be bought or sold. This Ordinance was issued to provide for the continuance during a limited period of powers to control the production, supply and distribution of, and trade and commerce in, certain commodities which were treated as essential for national economy. The essential commodities which were covered by the Ordinance were defined by clause 2(a) as meaning any of the classes of commodities specified; they included iron, steel and coal. Having provided for delegation of the specified powers to <ORG> under clause 3 the Ordinance provided for sub-delegation by clause 4. Under this clause <ORG> was authorised to direct by a notified order that the power to make orders under clause 3 shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable by (a) such officer or authority subordinate to <ORG>, or (b) such <ORG> or such officer or authority subordinate to a <ORG>, as may be specified in the direction. This Ordinance was later followed by the Act (Act XXIV of 1946) which was passed on November 19, 1946. The preamble to the Act, the definition of essential commodity and the provisions for delegation and sub-delegation which were included in the Ordinance have been re-enacted by the Act. The life of the Act thus passed was continued from time to time until the Essential Commodities Act No. 10 of 1955 was put on the statute book as a permanent measure. The provisions of the Defence of India Act and the Rules framed thereunder came into force to meet the emergency created by the war; but even after the war came to an end and hostilities ceased the emergency created by the war continued and the economic problems facing the country needed the assistance of similar emergency provisions. That explains why those provisions have continued ever since 1939.

3. The Order of which clause 11B is a part was issued on July 26, 1941, by <ORG> in exercise of the powers conferred on it by r. 81(2) of the Defence of India Rules which correspond to the provisions of <CITATION> of the Act. It may be pointed out that as a result of the combined operation of clause 5 of Ordinance XVIII of 1946 and s. 7 of the Act, the Order must now be deemed to have been issued under <CITATION> of the Act. It is necessary to examine briefly the broad features of the scheme of this Order. The Controller specified in the Order is the person appointed as Iron and Steel Controller by <ORG> and includes any person described by clause 2(a) of the Order. The Order applies to all iron and steel of the categories specified in its Second Schedule. Clauses 4 and 5 regulate the acquisition and disposal of iron or steel, and clause 8 requires that the use of iron and steel must conform to the conditions governing the acquisition. This clause shows that, in exercise of the powers conferred on the Controller by the proviso to it, the Controller has to take into account the requirements of persons holding stocks, the requirements of persons needing such stocks, the transport facilities available and any other factor including a strike or lock-out affecting the production or fabrication. Clauses 10B and 10C empower the Controller to direct sale of iron and steel in cases specified in the said clauses. Clause 11A authorises the Controller, where he is satisfied that such action is necessary in order to co-ordinate the production of iron and steel with the demands of iron or steel which have arisen or are likely to arise, to prohibit or require production of the said commodities in the manner indicated by sub-cls. (a), (b) and (c) therein. That takes us to clause 11B the validity of which falls to be considered in the present appeals. It reads thus :

"11B. Power to fix prices - The Controller may from time to time by notification in the Gazette of India fix the maximum prices at which any iron or steel may be sold (a) by a producer, (b) by Stockholder including a Controller Stockholder and (c) by any other person or class of persons. Such price or prices may differ from iron and steel obtainable from different sources and may include allowances for contribution to and payment from <ORG> established by the Controller for equalising freight, the concession rates payable to each producer or class of producers under agreements entered into by the Controller with the producers from time to time, and any other disadvantages.

The Controller, may also, by a general or special order in writing, require any person or class of persons enumerated above to pay such amount on account of allowances for contribution to <ORG>, within such period and in such manner as the Controller may direct in this behalf.

(2) For the purpose of applying the prices notified under sub-clause the Controller may himself classify any iron and steel and may, if no appropriate price has been so notified, fix such price as he considers appropriate :

Provided that the Controller may direct that the maximum prices fixed under sub-clause (1) or (2) shall not apply to any specified stocks of iron or steel and may, in respect of such stocks specify the maximum prices at which such iron or steel may be sold and communicate the same in writing to the persons concerned and any person or persons holding such stocks of iron and steel for which prices have been so specified shall, at the time of the sale of such iron or steel or part thereof, mention the number and date of the order of the Controller in every Cash Memo, Bill or other document evidencing the sale or disposal out of the respective stocks to which the order of the Controller applies.

(3) No producer or stockholder or other person shall sell or offer to sell, and no person shall acquire any iron or steel at a price exceeding the maximum prices fixed under sub-clauses or (2)."

5. Clause 12 gives power to <ORG> to give directions to the Controller or other authorities in respect of the procedure to be followed by them in exercising their powers and generally for the purpose of giving effect to the provisions of the Order. It would thus be seen that in issuing this Order <ORG> have prescribed a self-sufficient scheme for regulating the production, supply and distribution of steel and iron at fair prices. The Controller is required to take an over-all view of the needs of national economy in respect of steel and iron and to issue appropriate directions in order to effectuate the policy of the Act. The appellants' contention is that if clause 11B is considered in the light of the scheme which the Order has in view it cannot be said that the said clause is violative of Arts. 19(1)(f) and (g) of the Constitution.

4. Before we address ourselves to the question about the vires of clause 11B it is necessary to make it clear that the validity of <CITATION> and 4 of the Act has not been disputed before us, and indeed it cannot be disputed, in view of the decision of the Court in <CITATION> . The challenge to the vires of clause 11B has, therefore, to be examined on the basis that <CITATION> and 4 of the Act are valid. It is relevant to set out the implications of this position. When it is assumed that <CITATION> and 4 are valid it necessarily means that they do not suffer from the vice of excessive delegation. When the <ORG> delegated its authority to <ORG> to provide by order for regulating or prohibiting the production, supply and distribution of steel and iron, it had not surrendered its essential legislative function in favour of <ORG>. The preamble to the Act and the material words used in <CITATION> itself embody the decision of the <ORG> in the matter of the legislative policy, and their effect is to lay down a binding rule of conduct in the light of which <ORG> had to exercise its powers conferred on it by <CITATION> . The <ORG> has declared its decision that the commodities in question are essential for the maintenance and progress of national economy, and it has also expressed its determination that in the interest of national economy it is expedient that the supply of the said commodities should be maintained or increased as circumstances may require and the commodities should be made available for equitable distribution at fair prices. The concept of fair prices which has been deliberately introduced by the <ORG> in <CITATION> gives sufficient guidance to <ORG> in prescribing the price structure for the commodities from time to time. With the rise and fall of national demand for the said commodities or fluctuations in the supplies thereof, the chart of prices may, in the absence of well planned regulation, prove erratic and prejudicial to national economy, and without rational and well-planned regulation equitable distribution may be difficult to achieve; and so the <ORG> has empowered <ORG> to achieve the object of equitable distribution of the commodities in question by fixing fair prices for them. Thus, when it is said that the delegation to <ORG> by <CITATION> is valid, it means that <ORG> has been given sufficient and proper guidance for exercising its powers in effectuating the policy of the statute.

5. Similarly the validity of s. 4 postulates that the powers conferred on the sub-delegate do not suffer from the vice of excessive delegation. Sub-delegation authorised by s. 4 is also justified because, like the delegate under <CITATION> , the sub-delegate under s. 4 has been given ample guidance to exercise his powers when he is authorised by <ORG> in that behalf. If <ORG> chooses to exercise its powers under <CITATION> itself it may pass appropriate orders to give effect to the policy of the Act in respect of matters covered by <CITATION> and (2). When it adopts such a course <ORG> would have exercised its own authority under <CITATION> ; and the exercise of its power cannot be challenged on the ground that it suffers from the vice of excessive delegation. Similarly where by a notified order passed by <ORG> under s. 3 the Controller is authorised to pass appropriate orders, the notified order cannot be challenged on the ground that it suffers from the vice of excessive delegation. In our opinion, this position is implicit in the assumption that <CITATION> and 4 are valid.

6. What does the Order purport to do ? It purports to prescribe a scheme for the guidance of the Controller or other authorities specified in it when they exercise their powers and attempt to effectuate the policy of the Act. There can be no doubt that in exercising its powers under s. 3 <ORG> could itself have prescribed a price structure for steel and iron from time to time. Similarly, if by a notified order issued under s. 3 <ORG> had authorised the Controller to do so, he could have himself prescribed a price structure in respect of steel and iron from time to time. Instead of passing a bare notified order authorising the Controller to take appropriate steps to effectuate the policy of the Act, the Order purports to give him additional guidance by making several relevant provisions in regard to the production, supply and sale of steel and iron. The several clauses of the Order constitute an integrated scheme which would enable the Controller to take steps to give effect to the policy laid down by s. 3 of the Act. Clause 11B itself provides for the fixation of maximum prices for iron and steel. First of all the Controller has to classify iron and steel into different categories according as they are tested or untested; <ORG> has to be established by him for equalising freight, and he has to take into account the concession which is payable to each producer or class of producers under existing valid agreements and any other disadvantages. He is empowered to require the parties concerned to make a contribution to <ORG>, and the maximum prices which he has to fix have to be fixed separately for the producers, the stockholders including the controlled stockholders and other persons or class of persons. Having fixed maximum prices as prescribed by clause 12 the provision confers power on the Controller to grant exemptions to specified stocks of iron and steel falling under the said proviso. After thus prescribing the procedure for fixing the maximum prices and after indicating some of the factors which have to be considered in fixing the maximum prices, sub-clause (3) of clause 11B imposes a statutory prohibition against the specified persons from selling or offering to sell iron and steel at a price exceeding the maximum price fixed under sub-clause (2).

7. It is obvious that by prescribing the maximum prices for the different categories of iron and steel clause 11B directly carries out the legislative object prescribed in s. 3 because the fixation of maximum prices would make stocks of iron and steel available for equitable distribution at fair prices. It is not difficult to appreciate how and why the <ORG> must have thought that it would be inexpedient either to define or describe in detail all the relevant factors which have to be considered in fixing the fair price of an essential commodity from time to time. In prescribing a schedule of maximum prices the Controller has to take into account the position in respect of production of the commodities in question, the demand for the said commodities, the availability of the said commodities from foreign sources and the anticipated increase or decrease in the said supply or demand. Foreign prices for the said commodities may also be not irrelevant. Having regard to the fact that the decision about the maximum prices in respect of iron and steel would depend on a rational evaluation from time to time of all these varied factors the <ORG> may well have thought that this problem should be left to be tackled by the delegate with enough freedom, the policy of the <ORG> having been clearly indicated by s. 3 in that behalf. The object is equitable distribution of the commodity, and for achieving the object the delegate has to see that the said commodity is available in sufficient quantities to meet the demand from time to time at fair prices. In our opinion, therefore, if clause 11B is considered as a part of the composite scheme evidenced by the whole of the Order and its validity is examined in the light of the provisions of ss. 3 and 4 of the Act, it would be difficult to sustain the plea that it confers on the delegate uncanalised or unbridled power. We are inclined to hold that the power conferred on <ORG> by s. 3 and on the authority specified by s. 4 is canalised by the clear enunciation of the legislative policy in s. 3 and that clause 11B seeks further to canalise the exercise of the said power; and so it is not a case where the validity of the clause can be successfully challenged on the ground of excessive delegation. We have referred to this aspect of the matter at some length because it appears to have influenced the final conclusion in the judgment under appeal. As we will presently indicate the argument before us has, however, centerd on the question as to whether the clause has violated Art. 19 of the Constitution.

8. It was faintly argued that clause 11B should have referred to the prices of some specified year as basic prices of the commodities and should have directed the Controller to prescribe the maximum prices in respect thereof by reference to the said basic prices. In support of this contention reliance is placed on the provisions of s. 3 of the English Prices of Goods Act, 1939. It appears that s. 1 of the said Act prohibits sale of price-regulated goods at more than permitted price, and s. 3 defines the expression "basic price" as the price at which in the ordinary course of business in the case of which those goods were to be sold, agreed to be sold or offered for sale at the 21st day of August, 1939. Section 4 defines the permitted increases. It is in the light of the operation of ss. 3 and 4 that the prohibition enacted by s. 1 becomes effective under the act. Reference is also made to the American Emergency Price Control Act 1942, under which the administrator is directed, in fixing prices, to give due consideration so far as practicable to prices prevailing during a designated base period and to make adjustments for relevant factors of general applicability (<NAME> : <NAME> v. United States ((1943) 321 U.S. 414). In our opinion, the analogy of the two statutes cannot effectively sustain the argument that in the absence of a corresponding provision in clause 11B it must necessarily be held to be unconstitutional. In deciding the nature and extent of the guidance which should be given to the delegate <ORG> must inevitably take into account the special features of the object which it intends to achieve by a particular statute. As we have already indicated the object which was intended to be achieved and the means which were required to be adopted in the achievement of the said object have been clearly enumerated by the <ORG> as a matter of legislative decision. Whether or not some other matters also should have been included in the legislative decision must be left to the <ORG> itself. The question which we have to consider is whether the power conferred on the delegate is uncanalised or unguided. The answer to this question must, we think, be in favour of the appellants. Having regard to the nature of the problem which the <ORG> wanted to attack it may have come to the conclusion that it would be inexpedient to limit the discretion of the delegate in fixing the maximum prices by reference to any basic price. Therefore, we must hold that clause 11B is not unconstitutional on the ground of excessive delegation.

9. It is of course true that though clause 11B may not be unconstitutional on the ground of excessive delegation its validity can still be attacked on the ground that it violates Arts. 19(1)(f) and (g) of the Constitution. Mr. <NAME> realised that the failure to appreciate the effect of this <ORG>'s decision in <NAME>'s case constituted the main infirmity in the judgment under appeal; and so he did not press the argument about excessive delegation. He contended that clause 11B was void because it violated Arts. 19(1)(f) and (g) inasmuch as the power conferred on the Controller by the said clause puts an unreasonable restriction on the respondents' fundamental rights guaranteed under Art. 19. In support of this argument he has relied on the decisions of this <ORG> in M/s.

<CITATION> . ( S.C.R. 803) and <CITATION> ( S.C.R. 982). On the other hand, the learned Solicitor-General has contended that the decision of this Court in the case of <NAME> in effect concludes the controversy between the parties in the present appeals. We will presently refer to these decisions; but before we do so we may mention the material facts on which the contention is raised. The challenge to the validity of the criminal proceedings pending against the respondents can be made on three alternative grounds; it can be urged that ss. 3 and 4 of the Act are ultra vires, and if that is so neither the Order subsequently issued nor clause 11B nor the fixation of prices would be valid. We have already shown that this form of challenge has not been adopted by the respondents. It can also be urged that either the whole of the Order issued by <ORG> or clause 11B in particular is invalid as offending Arts. 19(1)(f) and (g) of the Constitution. It is with this argument that we are at present concerned; or, alternatively it can be urged that the actual fixation of prices by which a flat reduction of Rs. 30 per ton was directed is itself unreasonable and violative of Arts. 19(1)(f) and (g). Now in regard to the challenge to clause 11B on the ground that it violative Art. 19 it is difficult to see how this clause by itself can be said to violate Art. 19. In so far as the argument proceeds on the assumption that the authority conferred on the Controller by clause 11B is uncanalised or unbridled or unguided, we have already held that the clause does not suffer from any such infirmity. Therefore reading clause 11B by itself we do not see how it would be possible to hold that the said clause is violative of Art. 19. In fact, if ss. 3 and 4 are valid and clause 11B does nothing more than prescribe conditions for the exercise of the delegate's authority which are consistent with s. 3 it is only the actual price structure fixed by the Controller which in a given case can be successfully challenged as violative of Art. 19. Let us therefore consider whether it is open to the respondents to challenge the said price structure in the present appeals.

10. In their writ petition the respondents had challenged the validity of the notification issued by the Controller on December 10, 1949, mainly, if not wholly, on the ground that it was issued under clause 11B which itself was void. It is true that in the course of the arguments it appears to have been urged before <ORG> that the flat deduction of Rs. 30 per ton directed by the impugned notification is unreasonable, and in its judgment <ORG> has characterised the said deduction as being confiscatory. It also appears that the price for sale by registered producers of untested articles was Rs. 333 per ton whereas the price for sale by controlled stock holders is Rs. 363 and the price at which the respondents could sell was Rs. 378 per ton. As a result of the deduction of Rs. 30 directed by the impugned notification the respondents were required to sell at Rs. 348 per ton. It is alleged on their behalf that they had purchased the commodity from the controlled stockholders at the rate of Rs. 363 per ton and in consequence compelling them to sell the commodity at the reduced price means a loss of Rs. 15 per ton. This part of the respondents' case has not been tried by <ORG> and since it was a matter in dispute between the parties it could not be tried in writ proceedings. But apart from it the petitions do not show that the respondents seriously challenged the validity of the notification on this aspect of the matter. Besides in considering the validity of the notification it would not be enough to show that a particular registered stockholder suffered loss in respect of particular transactions. What will have to be proved in such a case is the general effect of the impugned notification on all the classes of dealers taken as a whole. If it is shown that in a large majority of cases, if not all, the impugned notification would adversely affect the fundamental right of the dealers guaranteed under Arts. 19(1)(f) and (g) that may constitute a serious infirmity in the validity of the notification. In the present proceedings no case has been made out on this ground and so we cannot embark upon an enquiry of that type in appeal.

11. It still remains to consider the decisions of this <ORG> on which Mr. <NAME> has relied. In the case of M/s.

Dwarka Prasad Laxmi Narain ([1954] S.C.R. 803) the provision of clause 4(3) of the Uttar Prasad Coal Control Order, 1953, was held to be void as imposing an unreasonable restriction upon the freedom of trade and business guaranteed under Art. 19(1)(g) of the Constitution, and not coming within the protection afforded by clause (6) of the article. It is significant that in dealing with the validity of the impugned clause the court has expressly stated that the vires of ss. 3 and 4 of the Act were not challenged. The impugned clause, it was, however, held, had conferred on the licensing authority unrestricted power without framing any rules or issuing any directions to regulate or guide this discretion. Besides the power could be exercised not only by the State Coal Controller but by any person to whom he may choose to delegate the same and it was observed that the choice can be made in favour of any and every person. It is because of these features of the impugned clause that this <ORG> held that the clause cannot be held to be reasonable. It is difficult to see how this decision can help the respondents in attacking clause 11B. We have already indicated that the powers exercisable by the Controller under clause 11B are in terms made subject to the general power of <ORG> to give directions prescribed by clause 12. Incidentally we may point out that though clause 4(3) was struck down by this <ORG> cls. 7 and 8 which empower <ORG> to prescribe the terms and prices on which the commodity in question could be sold were upheld as valid. Mr. <NAME> contends that in upholding these two clauses this <ORG> has taken into account the formula prescribed by Schedule III and it appeared to the <ORG> that the application of the formula did not on the whole lead to any unreasonable result. Besides the explanation to clause 8 also provided some guidance to the authority fixing the price structure and that guidance was also taken into account by this <ORG> in upholding the validity of the two impugned clauses. That no doubt is true; but, in our opinion, it would be unreasonable to suggest, as Mr. <NAME> sought to do, that in the absence of provisions like the explanation to clause 8 or the formula to Schedule III clause 11B in the present case should be struck down as void. Such a contention finds no support in the decision in the case of M/s.

<NAME> ([1954] S.C.R. 380).

12. In the case of <NAME> ([1954] S.C.R. 982), this Court struck down the latter part of clause 25 of the Rajasthan Foodgrains Control Order, 1949. In this case again it is significant that the challenge to the impugned clause proceeded on the specific and express assumption that s. 3 of the Act was valid. Now it appears that the impugned clause empowered the <ORG> to requisition the stock at a price lower than the selling price thus causing loss to the persons whose stocks are freezed while at the same time the <ORG> was free to sell the same stocks at a higher price and make a profit. The case of the respondent which illustrated this vicious tendency of the impugned clause was treated as a typical case which showed how business of grain-dealers would be paralysed by the operation of the clause. It was on this view about the effect of the clause in general that the offending portion was struck down under Art. 19(1)(g) of the Constitution. It was held also to contravene Art. 31(2). This decision again does not assist the respondents' case because, as we have already pointed out, the validity of the impugned notification has not been challenged on any such ground in the present proceedings.

13. That takes us to the decision of this Court in the case of <NAME> on which the appellants strongly rely. In that case this Court has held that ss. 3 and 4 of the Act are not ultra vires. It appears that s. 6 of the Act was held to be ultra vires by <ORG> from whose decision the appeal arose. This court reversed that conclusion and held that s. 6 of the Act also was valid. The appellant had challenged not only ss. 3 , 4 and 6 of the Act but also the impugned Control Order. This order was the Cotton Textile (Control of Movement) Order, 1948. Section 3 of the Control Order in particular was challenged as infringing the rights of a citizen guaranteed under Arts. 19(1)(f) and (g). Broadly stated this section of the Control Order prohibited transport except under and in accordance with a general permit or special transport permit as prescribed by it. The argument was that the power conferred by s. 3 constituted an unreasonable restriction on the fundamental rights of the citizen under Arts. 19(1)(f) and (g) and that in substance it suffered from the same vice as clause 4(3) of the Uttar Pradesh Coal Control Order which had been struck down by this court in the case of M/s.

<NAME> ([1954] S.C.R 803). This argument was rejected and it was observed that the impugned clause was not at all similar to clause 4(3) with which this Court was concerned in the case of M/s.

<NAME> ([1954] S.C.R. 803). The appellants contend that the reasons given by this <ORG> in upholdings s. 3 of the Order applied with equal force to clause 11B in the present appeals. It cannot be said that there is no force in this contention. In the result we hold that neither clause 11B of the Order not the impugned notification issued by the Controller on December 10, 1949, violate the respondents' fundamental rights under Arts. 19(1)(f) and (g), and so their validity cannot be successfully challenged.

14. The orders passed by <ORG> on the writ petitions filed by the respondents before it would, therefore, be set aside and the said petitions dismissed.

<NAME>, <NAME>

15. I have had the advantage of perusing the judgment of my learned brother, <NAME>, J. I agree with his conclusion.

16. The question raised in this case is whether clause 11B of Iron and Steel (Control of Production And Distribution) Order, 1941, violates the fundamental rights enshrined in Art. 19(1)(f) and (g) of the Constitution. In view of the decision of this <ORG> in <CITATION> , which is binding on us, I agree with my learned brother that clause 11B of the said Order is valid. I do not propose to express my view on any other question raised in this appeal.

17. Appeals allowed.