JUDGMENT Misra, J. - This is a Defendant's second appeal arising out of a suit for recovery of Rs. 550 on the basis of a mortgage. The suit has been decreed against Defendant by the Courts below. 2. The facts which gave rise to the litigation were as follows. One Mst. Mahdei was in possession of certain properties as a Hindu widow, and she sold those properties to one Ishri. On 6th November, 1931, Ishri mortgaged this property to Chaturbhuj, father of the present Plaintiff Respondent, for a sum of Rs 300 at an interest of 3 pies per rupee per month for a period of one year. A few months after executing the mortgage deed Ishri on 4th March, 1932, sold the equity of redemption to Kali. The sale-deed is not on the record, but it is admitted that in the consideration the mortgage money due to Chaturbhuj was made dehaneed to the mortgagee. Kali did not pay the entire sum due upon the mortgage but made 29 small payments from time to time between April, 1932, and January 1935, the total of which was Rs. 157-6-0. Chaturbhuj has died, and his interest has been inherited by his son, Ram Autar, who brought the present suit on the 17th November, 1938 for recovery of Rs. 550, principal and interest due upon the mortgage deed of 1931. Originally the suit was for sale of the mortgaged property, but on 12th January, 1939, the plaint was amended so as to include also a relief for personal decree against Kali on the ground that he had undertaken to pay the mortgage money. It appears that by this time Mst. Mahdei who had merely a widow's interest in the property had died, and her estate having terminated, a decree for sale of the mortgaged property would have been more or less infructuous in view of a declaration which had already been obtained by the reversioner of Mst. Mahdei's husband. The main contest, therefore, centred round the question whether Kali could be held to be personally liable for the discharge of the mortgage debt. Kali, of course, denied this and pleaded that there was no privity of contract between himself and Chaturbhuj so as to entitle the Plaintiff to enforce a personal obligation upon him. Mahdei's husband. The main contest, therefore, centred round the question whether Kali could be held to be personally liable for the discharge of the mortgage debt. Kali, of course, denied this and pleaded that there was no privity of contract between himself and Chaturbhuj so as to entitle the Plaintiff to enforce a personal obligation upon him. There was a further plea that the deed in suit had been held to be fictitious in the previous litigation between the reversioners and the lady in which Chaturbhuj was also a party and in which he had made an admission regarding the fictitiousness of the transaction. On both the pleas the trial Court gave a finding against Kali, but while decreeing the claim he directed that the Plaintiff's right to a personal decree against the second Defendant was to be reserved. The learned Civil Judge, Mohanlalganj, in appeal upheld the findings of the learned Munsif. He was of opinion that in the previous suit of the reversioners all that was held was that the alienation complained of was not binding on them. During her lifetime, however, it could not be said that the mortgage, did not bind the parties thereto It is not necessary to go into greater details about this latter finding in view of the fact that the question has not been re agitated in second appeal by the learned Counsel for the Defendant-appellant. As regards the Plaintiff's right to enforce personal liability against Kali, the decision was based on two grounds, (1) that the acceptance by him of the obligation in the sale deed of 1932 to repay the mortgage money created a trust in favour of Chaturbhuj and (2) that independent of the trust there was a subsequent agreement between Kali and Chafurbhuj that the money would be paid to the latter personally by the Defendant and that the agreement in that behalf was acted upon inasmuch as the sum of Rs. 157-6-0 was in fact paid. 157-6-0 was in fact paid. The lower appellate Court was thus of opinion that the appeal should be dismissed on merits but he considered that the direction in the trial Court's judgment for reservation of the Plaintiff's right to personal decree was wrong, because under Order 34, Rule 6, CPC a decree could be passed only against the mortgagor and not against the purchaser of equity of redemption, the cause of action for such a decree being a personal covenant in the mortgage deed. As the basis of liability in the present case was entirely different, the learned Civil Judge directed that the decree be amended so as to incorporate therein a direction that in addition to the mortgage decree for sale, Kali was also personally liable to pay the amount due under the mortgage. 3. In second appeal it is urged for the Defendant-appellant that the view taken by the Courts below about the Plaintiff's right to enforce the personal liability against Kali is legally wrong. The stipulation for making payment to Chaturbhuj contained in the sale deed, it cannot be denied, was between Ishri and Kali, and to this stipulation Chaturbhuj was no party. Ordinarily no stranger to a consideration can take advantage of a contract, even though it may be for his benefit. The rule in this behalf is, however, subject to certain exceptions. One of these exceptions occurs in cases where circumstances establish that the Plaintiff holds the position of a cestui que trust in relation to the obligee. This exception has been evolved by Courts of equity in England and has been accepted by Courts in India, In Touche v. Metropolitan Railway Warehousing Co. (1871) 6 Ch. App. Cas. 671 two persons Touche and Delman, who were the projectors and original promoters of a scheme which was subsequently incorporated with an undertaking called the Metropolitan Railway Warehousing Company, had incurred considerable expenses in organising the scheme. The Company was duly registered, and the Articles of Association provided that it had been arranged between the Company and one Walker who was its director that the latter should pay to Touche and Delman the sum of 2,000 as soon as the Company commenced business, and this sum was eventually left with Walker for the purpose of payment to Touche and his co-promoter. As the amount was, however, not paid, these persons filed their bill against the Metropolitan Railway Warehousing Company stating that Walker alleged that he was not personally liable and praying that the Defendants might out of the assets of the Company pay 2,000 and interest. The Company denied any agreement between themselves and the Plaintiffs, though it was admitted that there was an understanding between the Plaintiffs and Walker that if the Company commenced business and adopted the scheme, 2,000 should be paid by the Company through Walker to the Plaintiffs, Vice-Chancellor Stuart gave the Plaintiffs a decree, and Lord Chancellor Hatherley, while dismissing the appeal, observed as follows:-- "The case comes within the authority that where a sum is payable by A.B. for the benefit of C.D., C.D. can claim under the contract as if it had been made with himself. It is possible that Walker may, as he states in his answer, not be under any personal liability to the Plaintiffs; but I think that, on the evidence, the Plaintiffs were to be paid when Walker got the money, and they knew that by the Articles of the Company he was to be paid." 4. Walker was thus treated as holding the sum which he received from the Company, under the agreement between himself and the Company as a trustee for the Plaintiffs, and it was found as a fact that Walker was to receive the money as a trustee for the Plaintiffs. In re: Empress Engineering Co. (1880) 16 Ch. D. 125, Jessel M.R., observed:-- "I know of no case where, when A simply contracts with B to pay money to C, C has been held entitled to sue A in equity." Dealing with Touche v. Metropolitan Railway Warehousing Co. (1871) 6 Ch. App. Cas. 671, it was said-- "In that case the Lord Chancellor finds, as a fact, that Walker was to receive the money as a trustee for the Plaintiffs. If you can make out that Jones and Pride are cestui que trust that alters the case. It appears to me that they are not. The bromoters were liable to Jones and Pride who are simply their creditors. A being liable to B, C agrees with A to pay B. That does not make B a cestui que trust." 5. If you can make out that Jones and Pride are cestui que trust that alters the case. It appears to me that they are not. The bromoters were liable to Jones and Pride who are simply their creditors. A being liable to B, C agrees with A to pay B. That does not make B a cestui que trust." 5. Jessel M.R. thereafter discussed another question and held that the company was under no liability to Jones and Pride. He went on to say-- "supposing, however, that it was, it is then contended that a mere contract between two parties that one of them shall pay a certain sum to a third person not a party to the contract will make that third person a cestui que trust. As a general rule that will not be so. A mere agreement between A and B that B shall pay C (an agreement to which C is not a party either directly or indirectly) will not prevent A and B from coming to a new agreement the next day releasing the old one. If C were a cestui que trust it would have that effect. I am far from saying that there may not be an agreement like that in Gregory v. Williams (1877) 3 Mer 582, where the agreement was to pay out of the property, and one of the parties to the agreement may constitute himself a trustee of the property for the benefit of the third party. So again, it is quite possible that one of the parties to the agreement may be the nominee or trustee of the third person." 6. The next English case to which reference might in this connection be made is Nandy v. Gandy (1885) 30 Ch. D. 57. The rule here laid down by Lord Justice Cotton was as follows-- "Now of course, as a general rule; a contract cannot be enforced except by a party to the contract, and either of two persons contracting together can sue the other, if the other is guilty of a breach of or does not perform the obligations of that contract. But a third person, a person who is not a party to the contract, cannot do so. But a third person, a person who is not a party to the contract, cannot do so. That rule, however, is subject to this exception; if the contract, although in form it is with A, is intended to secure a benefit to B, so that B is entitled to say he has a beneficial right as cestui que trust under that contract; then B would, in a Court of Equity, be allowed to insist upon and enforce the contract. That, in my opinion, is the way in which the law may be stated." 7. Lord Justice Cotton then referred to the judgment of Lord Hatherley in Touche v. Metropolitan Railway Warehousing Co. (1871) 6 Ch. App. Cas. 671, and remarked as follows-- "Now, if that is intended to lay down the rule as a general proposition of law in the general terms there used, it is not consistent with the other case referred to in re Empress Engineering Co., (1880) 16 Ch. D. 125, but it may be that on the facts of the former case it was considered that the contract between Walker and the Company was entered into by Walker as a trustee for and on behalf of the Plaintiffs; and if so, that is in accordance with what I understand to be the law." 8. Cases like Nawab Khwaja Muhammad Khan and Nawab Husaini Begam (1910) 37 I.A. 152, and Debnarayan Dutt v. Chunilal Ghose (1914) 41 Cal. 137, are based upon the rule laid down by Lord Justice Cotton in Gandy v. Gandy (1885) 30 Ch. D. 57. 9. In the present case the only circumstance that appears from the oral pleadings on the record is that in the sale of 1932, Ishri made a dehaneed of the money due on the mortgage. It is thus a mere agreement between A and B that B shall pay C. 10. In Jamna Das and Pandit Ram Autar Pande (1912) 39 I.A. 7 it was contended that by retaining in his hands part of the purchase money and expressly or impliedly agreeing to pay the amount to Jamna Das, the Defendants became personally liable. Lord Macnaghten while delivering the judgment of the Judicial Committee observed-- "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. Lord Macnaghten while delivering the judgment of the Judicial Committee observed-- "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." 11. There is another Privy Council case, Nanku Prasad Singh v. Kamta Prasad Singh AIR 1923 P.C. 54 (1) to the same effect the facts of which will appear from Kamta Prasad Singh v. Nanku Prasad Singh AIR 1919 Pat. 583. In that case Kamta Prasad Singh and others were the purchasers of the mortgaged property, and they had given a verbal undertaking to the mortgagors to pay off the mortgage and collaterally with that undertaking a clause had been inserted in the sale-deed to the effect that the mortgagors-vendors had lett in deposit with the said purchasers the sum necessary to redeem the property. Upon this covenant in the deed of sale Nanku Prasad and others, mortgagees, sought to saddle a personal liability for repayment upon Kamta Prasad and others. The learned Judges of the Patna High Court observed that the clause inserted in the deed of sale is no more than an admission of the buyer's statutory rights and the oral contract to pay is no more than an admission of the buyer's statutory liability. They went on to say that in the absence of a direct contract with the encumbrancer the seller has no liability towards him. Upon this view the Plaintiffs' suit was dismissed When the case went up to their Lordships of the Privy Council, they, while delivering the judgment, observed as follows-- "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...." 12. In Waliuddin Ahmad v. Thakur Ram Rakhan Singh 1936 O.W.N. 483, a sum of Rs. 13,000 was left with the vendees-defendants for payment to the Plaintiffs on account of a mortgage, and the main question that arose in appeal was whether the Plaintiffs were entitled to a personal decree against the purchaser. In Waliuddin Ahmad v. Thakur Ram Rakhan Singh 1936 O.W.N. 483, a sum of Rs. 13,000 was left with the vendees-defendants for payment to the Plaintiffs on account of a mortgage, and the main question that arose in appeal was whether the Plaintiffs were entitled to a personal decree against the purchaser. It was argued that a trust was created in favour of the Plaintiffs by reason of the obligation undertaken by the vendees to pay the Plaintiffs. The contention after a consideration of the entire case law on the point was repelled, and reliance for the view adopted was placed upon 39 I.A.,7 and AIR 1928 P.C, 54 (1). The view expressed in a previous decision of this Court reported in Musammat Husaini Bandi Khanam v. Gauhar Begam (1931) 8 O.W.N. 1191, was not accepted as laying down correct law inasmuch as the decisions of their Lordships in Jamna Das and Pandit Ram Autar Pande (1912) 39 I.A. 7 and Nanku Prasad Singh v. Kamta Prasad Singh AIR 1923 P.C. 54 (1) were not brought to the notice of the Court and were in consequence not considered. 13. In support of the judgment of the Courts below the learned Counsel for the Respondents has placed reliance upon Musammat Husaini Bandi Khanam v. Gauhar Begam (1931) 8 O.W.N. 1191, Ram Dhan v. Lala Chauth Mal 1935 O.W.N. 1001, AIR 1937 99 (Oudh) and AIR 1932 566 (Lahore) . It has already been pointed out that the rule, which found acceptance in 8 O.W.N 1191, was not considered to be sound in a subsequent Bench decision of this Court. The other cases cited by the learned Counsel for the Respondents dealt with the circumstances very different from the one which prevailed in the present case. Ram Dhan v. Lala Chauth Mal was a case where a public body called Dharam Sabha of Colonelganj in the Gonda district sought to enforce against a firm of grain dealers in the Colonelganj Bazar payment of sums realised by the Defendants from cartmen for the Dharam Sabha. Ram Dhan v. Lala Chauth Mal was a case where a public body called Dharam Sabha of Colonelganj in the Gonda district sought to enforce against a firm of grain dealers in the Colonelganj Bazar payment of sums realised by the Defendants from cartmen for the Dharam Sabha. It was observed that there were concurrent findings of both the lower Courts that the Defendants realised the dues from cartmen in the name of and for the Sabha and it was held that in realising these levies they constituted themselves trustees for the Sabha, and as such the Sabha as the cestui que trust was entitled to maintain the suit. AIR 1937 99 (Oudh) , certain properties were set apart for the Plaintiffs by means of an agreement the latter being no party thereto. By another clause of the agreement the Defendant, who had no present right to the taluqa, got by relinquishment the entire estate. It was found that the terms upon which the property was given to the Defendant included a stipulation that he would make good to the Plaintiff the property when the latter attained majority. It was held that this constituted the Defendant a trustee. The case eventually went up to the Privy Council and is reported in Rana Uma Nath Baksh Singh v. Jang Bahadur 1938 O.A. 707 : A.W.R. (P.C.) 175 : O.W.N. 796, and their Lordships accepted the view that the obligations undertaken by the Defendant were the terms upon which immediate possession of the property was surrendered to him, and that the provision for the Plaintiff was to come out of the property which was being surrendered. In their Lordships view the effect of the agreement was to create a trust in favour of the Plaintiff enforceable at his instance. In Torabaz Khan v. Nanak Chand A I Rule 1932 Lah. 566. an arrangement had been made between the lessor and the lessee for the payment of the lease money to a third person, a there was evidence upon the basis of which it was found that the third person could for all practical purposes be treated as if he himself was a party to the transaction. 14. 566. an arrangement had been made between the lessor and the lessee for the payment of the lease money to a third person, a there was evidence upon the basis of which it was found that the third person could for all practical purposes be treated as if he himself was a party to the transaction. 14. In view of what has been said above, it must be held that by the sale deed of 4th March, 1932, Kali did not become a trustee for the payment of the dehaneed money to the father of Ram Autar Plaintiff. 15. The next question is whether there was a subsequent agreement for payment of money between Kali and Chaturbhuj upon the basis of which a personal liability could be fastened on the Defendant. The learned lower Court has found it as a fact that the Appellant agreed with Chaturbhuj to pay off the debt personally. Therefore it remains only to be considered whether upon the basis of such an agreement the present suit could be legitimately founded. In Waliuddin Ahmad v. Thakur Ram Rakhan Singh 1936 O.W.N. 483, to which reference has been made in an earlier part of this judgment, certain sums of money had been paid by the Defendants-purchasers on account of interest on their mortgage dues to the Plaintiffs-mortgagees at different times. It was observed that the payments were not made as desired under the contract entered into by the Defendants with the vendor. Basing his argument upon this observation of the learned Judges of this Court in the above case a contention has been advanced that the agreement was of no avail to the Plaintiff. In Subbu Chetti v. Arunachalam Chettiar (1930) 53 Mad. 270, the following proposition was laid down-- "Where on a contract between A and B, B agrees to pay a sum of money to C and no more circumstances appear, C being a stranger to the contract, cannot sue B for the money, though all the parties to the contract are parties to the suit. 270, the following proposition was laid down-- "Where on a contract between A and B, B agrees to pay a sum of money to C and no more circumstances appear, C being a stranger to the contract, cannot sue B for the money, though all the parties to the contract are parties to the suit. This is the general rule, though some exceptions to the rule arise under the following circumstances e.g. (a) where B afterwards agrees with C to pay him direct or becomes estopped from danying his liability to pay him personally; "(b) where the contract between A and B creates a trust in favour of C; (c) where the contract charges the money to be paid out of some immovable property or (d) where it is due to C under a marriage settlement, partition or other family arrangement." 16. In S.M.N.R.M. Lakshmanan Chettier Vs. S. Rm. Ar. Ramanathan Chettiar, and Another, AIR 1935 Mad 115 , the mortgagor sold the mortgaged property, and an arrangement was reached between the parties to the sale that the purchaser should retain a part of the purchase money in his hands to pay off the mortgagee, and in pursuance of it the purchaser communicated with the mortgagee and informed him that he held a certain sum of money for him, and that he should not press the mortgagor for repayment, it was held that the purchaser was personally liable to discharge the mortgagee. After stating the facts it was said-- "On these facts the purchaser occupies a different position to what he would have occupied, had he not communicated the undertaking to the mortgagee. After stating the facts it was said-- "On these facts the purchaser occupies a different position to what he would have occupied, had he not communicated the undertaking to the mortgagee. This is much nearer the case in 10 I.C. 98, Siva Subramania Mudaliar v. Gnanasambanda Pandara Sannadhi) where according to the head-note it was held that a person who directs another to pay money to a third person is entitled to countermand that order before that person has entered into direct relations with the third person and agreed to pay it to him; but where the agent is directed or authorised by his principal to pay to a third person money existing or accruing in his hands to the use of the principal, and he expressly or impliedly contracts with such third person to pay to him, or to receive or hold the money on his behalf for his use, he is personally liable to pay such third person, or to receive or hold the money on his behalf." 17. It appears that Chaturbhuj desired to enforce his mortgage against Ishri for the entire amount during the lifetime of Mst. Mahdei, but he was persuaded by the Defendant to give up that position and to accept the personal liability of Kali for future payments. Under these circumstances I am of opinion that Ram Autar is sufficiently competent to base his claim against Kali upon personal obligation also. 18. The learned Counsel for the Appellant also sought to argue that the suit for enforcement of personal liability was barred by limitation. This question was not raised before the trial Court or before the Court of first appeal, and it was for the first time in second appeal that a ground embodying the question of limitation was taken. In AIR 1930 18 (Privy Council) , the plea of limitation was mentioned in the written statement, but no issue was directed to bear upon the question before the trial Judge and the point was not taken at the bar in the Court below. Their Lordships in these circumstances did not think that the point could be opened on appeal. The question of limitation is not purely dependent upon legal considerations, and there may be facts which may operate to the advantage of the Plaintiff. I am, therefore, reluctant to enter into this question at this late stage. 19. Their Lordships in these circumstances did not think that the point could be opened on appeal. The question of limitation is not purely dependent upon legal considerations, and there may be facts which may operate to the advantage of the Plaintiff. I am, therefore, reluctant to enter into this question at this late stage. 19. The result of the above discussion is that the suit has been rightly decreed by the Courts below. This appeal fails and is dismissed with costs.