Chaudhari Amir Ullah v. Central Government — 1958 DIGILAW 303 (ALL)

JUDGMENT R.K. Chowdhary, J. - This is a second appeal by the plaintiffs Choudhri Amir Ullah and Hafiz Abdul Rahman. They sued only the Central Government (Indian Dominion) through the Secretary Indian Posts and Telegraphs Department. Subsequently, they impleaded as defendant firm Haji Peer Mohammad Shamshuddin of Sadar Bazar New Delhi as then carrying on business in Pakistan through the Manager of the firm. 2. On 11-6-1947 currency notes of Rs. 1,0001- were remitted in an insured cover from the Sadar Bazar Post Office Delhi to the plaintiffs at Shahjahanpur. The insured cover was not delivered to the addressees. Thereupon the plaintiffs filed the present suit in the court of the Munsif of Shahjahanpur for recovery of the amount from the Central Government. Under Sec. 33 of the Indian Post Offices Act (VI of 1898) the liability for compensation in respect of postal articles insured is to the sender thereon. The plaintiffs alleged in the plaint that the said firm was only the ostensible sender, the real senders being the plaintiffs themselves. 3. Against the Central Government the trial court decreed the suit holding that the real senders were the plaintiffs. The suit had proceeded ex parte against the defendant firm in Pakistan. On an appeal by the Central Government the learned Civil Judge of Shahjahanpur dismissed the suit reversing the said finding of the trial court. The lower appellate court was of the view that the ostensible sender was the real one. An alternative plea taken on behalf of the plaintiffs, namely, that they were in any case entitled to a decree as beneficiaries under a trust, was also not accepted by the lower appellate court. The plaintiffs have now come up in second appeal to this Court. 4. A preliminary objection was raised by the learned counsel for the defendant-respondent, the Central Government, based on Sec. 50 of the Administration of Evacuee Property Act, 1950. That section provides: "50. (1) If in any suit it appears to the civil or revenue court that a question relating to the property of an evacuee or an intending evacuee is involved, the court shall not proceed to determine that question until after notice has been given to the Custodian. That section provides: "50. (1) If in any suit it appears to the civil or revenue court that a question relating to the property of an evacuee or an intending evacuee is involved, the court shall not proceed to determine that question until after notice has been given to the Custodian. (2) A Court may, at any stage of a suit or proceeding, either on its own motion or an application made in this behalf by the Custodian, make an order that the Custodian shall be added as a party to the suit or proceeding, if the court is satisfied that such addition is necessary or proper for the satisfactory determination of the suit or proceeding." 5. It was submitted by the learned counsel that, no notice to the Custodian having been given in this case, and the Custodian not having been impleaded as a party, the suit should be dismissed in view of the above provisions. It is noteworthy, to begin with, that the above section is no bar to the maintainability of a suit: it only says that the Court shall not proceed to determine the question relating to the property of an evacuee until notice had been given to the Custodian. Furthermore, in order that the defendant-respondent could have the benefit of this section it was necessary that it be shown that the question involved in the case related to the property of an evacuee. It was nobody's case that the property in question was evacuee property. This plea was not taken by the defendant-respondent in any of the two courts below. The applicability of the aforesaid section would no doubt depend primarily on the allegations made in the plaint; but, as just noticed, no such allegation finds mention in the plaint. For these reasons the preliminary objection in question would appear to have no force. Coming to the merits of the appeal, the plaintiffs cannot of course succeed on foot of the provisions of Sec. 33 of the Indian Post Offices Act in view of the finding of fact of the lower appellate court that the plaintiffs were not the senders. 6. The learned counsel for the plaintiffs appellants sought to base their claim in the alternative on the ground that the plaintiffs were the owners of the property in suit, the currency notes worth Rs. 1,000. 6. The learned counsel for the plaintiffs appellants sought to base their claim in the alternative on the ground that the plaintiffs were the owners of the property in suit, the currency notes worth Rs. 1,000. No such plea was however taken in the plaint, and no issue on that score was accordingly framed. The plea was not taken in the lower appellate court either. And it is noteworthy that that plea, now urged for the first time in the course of arguments, does not find mention even in the grounds of appeal filed in this Court. That being so, this alternative ground sought to be urged on behalf of the plaintiffs-appellants in this Court for the first time cannot be entertained. For the same reason the prayer of the learned counsel that the case be remanded to the court below for an issue on this ground being framed and decided cannot also be allowed. 7. The other ground based on trust, taken in the lower appellate court and reiterated here, would appear however to be well-founded. I must however say at once that the decision of the Madras High Court cited in the Court below, and also again here, Narasimhulu v. Adiappa, I.L.R. 13 Mad.242 is not applicable to the facts of the present case. The dispute considered in that case was one between an attaching creditor and the sender of currency notes in an insured cover. The liability of the post office did not at all arise for consideration in that case. The principles according to which a stranger, not a party to a contract, may sue on the basis of the same on foot of a, trust was laid down in Iswaram Ptillai v. Sonnivaveru Taragan, I.L.R. 38 Mad. 753 These were reiterated in a subsequent decision of that court reported as Subbu Chetti v. Arunachalam Chettiar, I.L.R. 53 Mad.270 at 277 The facts of the earlier case and the principles laid down therein were enunciated in the later case as follows: "The question has been elaborately considered by Ayling and Tayabji, JJ., in lswaram Pilllai v. Sonivaveru Taragan, I.L.R. 38 Mad. 753 That was a case where A mortgaged his lands to B and part of the consideration was B's premise to discharge a debt of A to C. C sued B and it was held that G 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 immovable property by the promisor 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 Sec. 23 of the Specific Relief Act, and (d) estoppel as against the promisor owing to transactions between the plaintiff and the promisor." 8. I am in respectful agreement with the principles laid down in that case, based as they are on well-established English law on the same subjects Gandy v. Gandy, (1885) 30 Ch. D.57. 9. The learned counsel for the plaintiffs, appellants submitted that the plaintiffs' case fall within the exception (a) above, namely, the creation of a trust in favour of the plaintiffs in respect of the amount sued for. There was a contract between the sender, the defendant firm, and the Central Government in respect of the insured article under which the latter became liable for compensation under Sec. 33 of the Indian Post Office Act on non-delivery of the Article insured. That the beneficiaries under this contract were the plaintiffs would appear to admit of no doubt since it was to the plaintiffs that the insured articles were to be delivered. Sec. 5 of the Indian Trusts Act, 1882, lays down as follows: "Trust of immoveable property. No trust in relation to immoveable property is valid unless declared by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee. Trust of moveable property. No trust in relation to immoveable property is valid unless declared by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee. Trust of moveable property. No trust in relation to moveable property is valid unless declared as aforesaid, or unless the ownership of the property is transferred to the trustee." Those rules do not apply where they would operate so as to effectuate a fraud." That such a trust should be deemed to have been declared by the sender in this case would appear from the fact that the insured cover was addressed as deliverable to the plaintiffs. In this connection Sec. 94 of the Trusts Act may also be referred, to. It lays down: "Constructive trusts in cases not expressly provided for - In any case not coming within the scope of any of the preceding sections, where there is no trust but the person having possession of property has not the whole beneficial interest there in, he must hold the property for the benefit of the persons having such interest, or the residue thereof (as the case may be) to the extent necessary to satisfy their just demands." 10. The property in this case was in possession of the post office, and the post office had no beneficial interest in that property whatsoever. The persons having such beneficial interests were the plaintiffs as addressees. That being so, a constructive trust would appear to have been created of which the plaintiffs were entitled to have the benefit as against the trustee, the Central Government through the post office. I am therefore of the view that the lower appellate court was in error in not accepting this alternative ground based on trust which had been pleaded before it in the alternative. Accepting that ground, I am of the view that the plaintiff's suit should be decreed. 11. In the result, the appeal is allowed, the judgment and decree of the lower appellate court are set aside and the judgment and decree of the trial court decreeing the plaintiffs' suit are restored. The plaintiffs-appellants are awarded their costs throughout. 12. Accepting that ground, I am of the view that the plaintiff's suit should be decreed. 11. In the result, the appeal is allowed, the judgment and decree of the lower appellate court are set aside and the judgment and decree of the trial court decreeing the plaintiffs' suit are restored. The plaintiffs-appellants are awarded their costs throughout. 12. In view of a question of law of some importance being involved in this case, the prayer of the learned counsel for the defendant-respondent, the Central Government for to file a special appeal against this judgment is granted.