Kushro S. Gandhi & Ors Vs. N.A.
Gajdar & Ors  INSC 298 (27 November 1968)
27/11/1968 SIKRI, S.M.
CITATION: 1970 AIR 1468 1969 SCR (2) 959 1969
SCC (1) 358
Tort-Suit against several tort-feasors for
conspiracy- Unconditional apology by one-Accepted by plaintiff and decree
passed-If operates as release of other joint tort- feasors.
Code of Civil Procedure (5 of 1908), ss. 24
and 115- Revisional Jurisdiction-Revision against order regarding payment of
court fee-If High Court could decide other issues-Consent of parties-Effect
of-S. 24, scope of.
A suit for damages was filed on the
allegations that the plaintiffs and defendants were all members of an
association and that the defendants committed a tort against the plaintiffs by
conspiring and preventing the plaintiffs from being elected to the office of
trustees of the association.
One of the defendants tendered an
unconditional apology which was accepted by the plaintiffs and a decree was
passed in terms of the compromise. The other defendants, thereafter, filed
written statements contending that the release of one of the defendants from
his joint liability as a tort-lessor extinguished the plaintiff's rights
against the remaining defendants and raised questions regarding valuation and
court-fees. The trial court took up the issue regarding court-fees, held there
was a deficiency and granted time to the plaintiffs to make good the
The plaintiffs, instead, applied for
amendment of the plaint and the trial court allowed the application. The High
Court, in revision filed by the defendants gave appropriate directions
regarding payment of court-fee. The High Court, also decided, with the consent
of both sides, that the decree against one of the defendants namely, the
compromise decree, was complete accord and satisfaction and that the cause of
action against all the defendants being one and indivisible, the decree
operated as a bar against further proceedings against the remaining defendants.
In appeal to this Court, it was contended
that the subject matter of revision before the High Court being only the order
of the trial court regarding court-fee, the High Court had no jurisdiction to
decide any other point.
HELD: (1) The High Court had no power to
decide any other issue even if the parties had consented. The order of the High
Court could not be justified under s. 24, Civil Procedure Code, because, it was
not a case of the High Court withdrawing the case to itself and trying the
[9'63 D--E] (2) The High Court having decided
the question of maintainability of the suit against the. other defendants, the
trial court would feel handicapped if the matter were to be remitted to it. The
appropriate procedure is for this Court to decide the question. [963 E-F] (3)
The rule which is in consonance with equity, justice and good conscience and
which also recognises that the liability of tort-feasors is joint and several,
is that, before the other joint tort-feasors can rely on accord and
satisfaction, a plaintiff must have received full satisfaction or L6Sup.
CI/69-10 960 what the law must consider as such from one of the tort- feasors.
What is full satisfaction would depend on the facts and circumstances of each
case. [970 C--E] In the present case, the apology which was embodied in a
decree could not be treated as full satisfaction for the tort alleged to have
been committed by the defendants. But it must be treated as an election on the
part of the plaintiffs to pursue their several remedy against the defendant
tendering the apology. [970 E--F] Ram Kumar Singh v. Ali Husain, (1909) I.L.R.
173, Makhanlal Lolaram v. Panchamal
Sheoprasad, A.I.R. 1934 Nag. 226; Har Krishna Lal v. Haji Qurban Ali, (1942)
I.L.R. 17 Luck. 284 and Shiva Sagar Lal v. Mata Din A.I.R.
1949 All. 105; and English and American Law,
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 632 of 1962.
Appeal by special leave from the judgment and
order dated January 5, 1960 of the Allahabad High Court in Civil Revision No.
325 of 1957.
G.N. Kunzru, B.C. Misra, P.K. Chakravarti and
Om Prakash, for the appellants.
J. P. Goyal and S.P. Singh, for the
The Judgment of the Court was delivered by
Sikri, :1. This appeal by special leave is directed against the judgment of the
Allahabad High Court (Dhavan, J.) allowing the revision under s. 115, C.P.C.,
and dismissing the suit brought by the appellants hereinafter referred to as
The relevant facts for the purpose of
,appreciating the points raised before us are as follows: The four plaintiffs,
out of which three are appellants before us the fourth having died, brought a
suit for damages against the six defendants (one defendant had in the meantime
died and four are respondents before us). The allegations in the plaint, in
brief, were that the plaintiffs and the defendants were members of an
,association called Parsi Zoroastrian Anjuman;
that the defendants, alongwith some other
members of the association, formed a group and each of them conspired among
themselves to injure and harass the plaintiffs and a few others in various
ways; that at a meeting held on May 5, 1954, in connection with the election of
Trustees, when defendant N.A. Guzder occupied the chair, he gave a ruling that
the plaintiffs Kershasp S. Gandhi and B.T.J. Shapoorji, since deceased, were
unfit candidates for the office of Trustees and thus prevented them from
seeking election, and contrary to the rules of the Anjuman and without taking
votes declared the defendant, F.J. Gandhi, and one A.F. Cama duly elected. It
was further alleged that on 961 July 3, 1954, another meeting of the Anjuman
was held when the plaintiffs Khushro S. Gandhi and Framroze S. Gandhi were
candidates for election to the office of the trustees, and defendant F.J. Gandhi
gave a perverse ruling rejecting the nominations of the above plaintiffs and
after taking votes declared G.T. Shappoorjee as duly elected trustee; that by
the aforesaid rejections the plaintiffs had suffered an injury for which
defendants Nos. 1 to 6 were jointly and severally liable and the plaintiffs
were entitled to recover damages from the defendants.
The plaint was filed on January 21, 1955.
Before any written statement was submitted, on February 13, 1955 the sixth
defendant S. Rabadi, entered into a compromise with the plaintiffs. The terms
of the compromise were:
"1. I, Shavak Dorabjee Rabadi, defendant
No. 6 have considered the subject matter of the suit and am sincerely sorry and
apologies to the plaintiffs unconditionally for whatever I have done. I realise
that I was m error *and was misguided.
2. The plaintiffs above named accept the
apology tendered by Shri Shavak Dorabjee Rabadi defendant No. 6 and the suit
against him may be disposed of treating the aforesaid apology and its
acceptance by the plaintiffs as a settlement of the dispute between the
plaintiffs and the defendant No. 6.
3. The plaintiffs do not claim any costs
against the defendant No. 6 and defendant No. 6 will bear his own costs.
It is therefore prayed that the claim against
defendant No. 6 may be disposed of in terms of the above settlement." A
decree was passed in terms of this compromise against defendant No. 6.
On May 14, 1955, the other defendants filed a
written statement and inter alia alleged:
"That the release of defendant No. 6 Sri
S. Rabadi, an alleged joint tort feasor and the compromise entered into behind
the back of the answering defendants with him in full settlement of their suit
for damages, appears to be collusive and dishonest and the release by the plaintiffs
of defendant No. 6 from his joint liability as a tort feasor has in law
extinguished the plaintiffs' rights to sue the others remaining defendants and
claim damage from them." - 962 It was further alleged that "the four
plaintiffs could not be legally allowed to totalise the sum of their individual
damage, alleged to have been suffered, and thereby procure the trial of the
suit in the court of higher jurisdiction," and that the suit had been
In a statement dated March 17, 1956, the
plaintiffs clarified that the "damages are being claimed by the plaintiffs
in respect of all the facts mentioned in the plaint and particularly as a
result of the facts that have been mentioned in paragraphs 17 and 19 the
plaint", and further "that on account of all the facts complained of
each plaintiff is entitled to claim Rs. 10,100 as damages but the plaintiffs
have claimed only Rs. 10,100 and have given up rest of the claim." Two of
the issues framed by the Civil Judge, may be set out:
"Issue No. 5. What is effect of the
compromise between plaintiffs and defendant No. 6, as against rights of the
other defendants ? Is the suit not maintainable against other defendants ?
Issue No. 11. Is the court-fee paid by the plaintiffs insufficient ?" By
order dated September 18, 1956, the Civil, Judge held that the court-fee paid
by the plaintiffs was insufficient and that there was a deficiency of Rs.
905/12/- in the court-fee which the plaintiffs had to make good. The plaintiffs
were given 15 days time to make good the deficiency. Instead of paying the
money the plaintiffs applied under O.VI, r. 17, C.P.C., for amendment of the
plaint. The plaintiffs stated in this application that they would in
consideration of the order of the Court split the amount of Rs. 10,100/- into
two portions claiming Rs.
5,050/- each in respect of the two separate
incidents dated July 3, 1955, and May 5, 1955, respectively. The defendants
filed an application contending that as the plaintiffs had failed to make good
the deficiency in the court-fee within the time given, the plaint should be
rejected in view of the provisions of the O. VII, r. 11, C.P.C. and s. 6, U.P.
Court Fees Act. By order dated November 28, 1956, the Civil Judge allowed the
plaintiffs' application for amendment on payment of Rs. 30/- as costs, and also
rejected the defendants' application. Against this order the defendants filed a
Dhavan, J., first dealt with the point
whether the plaintiffs could renounce a part of the claim instead of making
good the deficiency in court-fee. He came to the conclusion that the suit
contained four causes of action, and that the plaintiffs had to pay court-fee
on four separate causes of action of the value of Rs. 2,525/- each. As the
learned counsel for the plaintiffs had 963 given an undertaking to make good
any deficiency in court- fee, Dhavan, J., directed the plaintiffs to pay
court-fee on the four separate causes of action valued at Rs. 2525/- each. He
also directed an amendment to be made in the plaint.
The learned Judge felt that it would be in
the interest of justice that the question covered by issue No. 5 being one of
law should be decided by him in the revision. It appears that the counsel for
both parties conceded that the Court had power to decide the issue as the
entire record was there, although the learned for the plaintiffs felt that the
decision should be left to the Trial Court.
The learned counsel for the appellants
contends before us that the High Court had no jurisdiction to decide issue No.
5 in a revision. He says that the subject-matter of the revision was the order
of the Civil Judge dated November 28, 1956, and the High Court could not decide
any other point and convert itself into an original court. The learned counsel
for the respondents tried to justify the decision regarding jurisdiction of the
High Court under s. 24, C.P.C.
This section inter alia, provides that the
High Court may withdraw any suit, appeal or other proceeding pending in any
Court subordinate to it and try and dispose of the same. We are unable to
appreciate how the order of the learned Judge can be justified under s. 24. He
has not purported to withdraw 'any suit and try the same. What he has done is
to try an issue arising in a suit in a revision arising out of an interlocutory
order. It seems to us that the High Court, even if the parties conceded, had no
power to decide the issue. But if we set aside the order of the High Court and
remit the case to the Civil Judge to try it according to law, the Civil Judge
would feel handicapped in deciding the case properly because he will feel bound
to follow the opinion given by the learned Judge on issue No. 5. Under the
circumstances we heard arguments on the issue.
Dhavan J., following the English Common Law,
held that the decree against Rabadi was complete accord and satisfaction and
the cause of action against all the defendants being one and indivisible, the
decree operated as a bar against further proceedings against the remaining
Winfield on Tort (8th edn.) p. 661 states the
English Law thus:
"The liability of joint tort feasors is
joint and several, each may be sued alone, or jointly with some or all the
others in one action; each is liable for the whole damage, and judgment
obtained against all of them jointly may be executed in full against any one of
them. At common law, final judgment obtained against one 964 joint tort-feasor
released all the others, even though it was wholly unsatisfied. This was
established in Brinsmead v. Harrison(1) and the reason put by Blackburn J., was
Interest reipublicae ut sit finis litium.
Kelly C.B. urged that if the rule were
otherwise, then in a second action the second jury might assess an amount
different from that in the first action and the plaintiff would not know for
which sum he should levy execution. The rule was abolished by the Law Reform
(Married Women and Tortfeasors) Act, 1935.
It has long been settled that the release of
one joint tortfeasor releases all the others, because the cause of action is
one and indivisible. This rule has not been affected by the Act of 1935. It
applies to a release under seal and to 'a release by way o,f accord and
satisfaction, and probably to nothing else. A mere covenant or agreement not to
sue, as distinguished from an actual release, does not destroy the cause of
action, but merely prevents it from being enforced against the particular
tortfeasor with whom it is made." That was not the law in England in the
beginning. The history of the law on this point is set out in William's 'Joint
Torts and Contributory Negligence' (p. 35 footnote) as follows:
"In Y.B. (1305) 33-35 E. 1, R.S. 7, it
was apparently held that in trespass against four, a verdict against two did
not of itself prevent continuance against the other two.
The verdict may not, however, have been
embodied in a judgment. The former rule appears more clearly from Y.B. (1342)
16 E. 3, 1 R.S. 171, where judgment against one did not bar the action against
the others. That the parties were joint tortfeasors appears plainly from the
note from the record, ibid, 175 n.
7. See also Y.BB, (1370) P. 44 E. 3. 7b, pl.
4; (1412/ 13) H. 14 H. 4.22b, 131. 27; in the
latter it is said that in trespass against two, if one be condemned and the
plaintiff has execution against him with satisfaction, he shall be barred
against the others thus implying that the mere judgment would not bar.
Cp. Hickman v. Machin (1605) 1 Ro. Ab. 896,
(F) 4, 7, from which case, however (sub.
nom. Hickman v. Payns), a different inference
is drawn in Broome v. Wooton (1605) Yelv. 67, 80 E.R. 47. The first discussion
of the question in the Year Books is in Y.B, (1441) M. 20 H. 6, 11a, pl. 24,
where X had first sued A, B, and C in trespass and (1) (1871-72) L.R. 7 C.P.
965 obtained judgment against A, who alone
appeared to the writ; later X, not having levied execution under this judgment,
Paston and Fulthorpe expressed opinions that
he was not barred by the first judgment, but Newton C.J. thought that he was.
(1495)M. 11 Ii. 7. 5b, pl. 23 (Bro. Trespas
428) it was said that one can release one joint tortfeasor after judgment
,against another without affecting that other; such a release would have been
unnecessary if the judgment had discharged all other joint tortfeasors. Cp. Y.
BB. (1474) T. 14 E. 4. 6a, pl. 2; (1475) T. 15 E. 4. 26b, pl. 3. The rule was
not settled in 1584, for it was then made a question whether even satisfaction
following on judgment would discharge the others (above 9 n.2); and see Cocke
v. Jennor (n.d.) Hob. 66, 80 E.R. 214, where it was said that if joint
tortfeasors be sued in several actions, satisfaction by one would discharge the
others; it was not said that judgment against one would discharge." The
common law rule was first established by the case of Broome (Brown) v.
Wooton(x) and the only reason given was that transit in rem judicatam.
Goldrel Foucard & Sons v. Sinclair and
Russian Chamber of Commerce in London(2) Sargant, L regarded the rule in
Brinsmead v. Harrison(a) highly technical.
The rule was changed in England by
legislation vide The Law Reform (Married Women and Tortfeasors) Act, Pt. II (25
& 26 Geo. 5, c. 30). Section 6(1)(a) and (b) of that Act read as follows:
"Where damage is suffered by any person
as a result of a tort (whether a crime or not)- (a) judgment recovered against
any tortfeasor liable in respect of that damage shall not be a bar to an action
against any other person who would, if sued, have been liable as a joint
tortfeasor in respect of the same damage;
(b) if more than one action is brought in
respect of that damage by or on behalf of the person by whom it was suffered,
or for the benefit of the estate, or of the wife, husband, parent or child of
that person, against tortfeasors ,liable in respect of the damage (whether as
joint tortfeasors or otherwise) the sums recoverable under. the (1) 80 E.R, 47.
(2)  K. B, 180, 192, (3) (1871-72) L.R. 7 C.P. 547, 966 judgments given
in those actions by way of damages shall not in the aggregate exceed the amount
of the damages awarded by the judgment first given; and in any of those
actions, other than that in which judgment is first given, the plaintiff shall
not be entitled to costs unless the court is opinion that there was reasonable
ground for bringing the action." This provision has been adopted in other
parts of the Commonwealth.
Recently in Egger v. Viscount Chelmsford(1)
Lord Denning M.R., observed:
"I cannot help thinking that the root of
'all the trouble is the tacit assumption that if one of the persons concerned
in a joint publication is a tortfeasor, then all are joint tortfeasors. They
must therefore stand or fail together. So much so that the defence of one is
the defence of all; and the malice of one is the malice of all. I think this
assumption rests on a fallacy. In point of law, no tortfeasors can truly be
described solely as joint tortfeasors. They are always several tortfeasors as
well. In any joint tort, the party injured has his choice of whom to sue. He
can sue all of them together or any one or more of them separately. This has
been the law for centuries. It is well stated in Serjeant Williams' celebrated
notes to Saunders' Report (1845 ed.) of Cabell v. Vaughan (1669) 1 Saund. 291
several persons jointly commit a tort, the
plaintiff has his election to sue all or any number of the parties; because a
tort is in its nature the separate act of each individual'. Therein lies the
gist of the matter. Even in a joint tort, the tort is the separate act of each
individual. Each is severally answerable for it; and, being severally
answerable, each is severally entitled to his own defence. If he is himself
innocent of malice, he is entitled to the benefit of it. He is not to be
dragged down with the guilty. No one is by our English law to be pronounced a
wrongdoer, or be made liable to be made to pay damages for a wrong, unless he
himself has done wrong; or his agent or servant has done wrong and he is
vicariously responsible for it. Save in the case where the principle respondent
superior applies, the law does not impute wrongdoing to a man who is in fact
innocent." (1)  1 Q.B.D. 248, 264.
967 Gatley on 'Libel and Slander' (Sixth
Edition), in a footnote at p. 367, remarks regarding the approach of Lord
Denning in Egger v. Chelmsford ( 1 ):
"His approach is also not easy to
reconcile with the law on the release o.f joint tortfeasors".
In the United States of America, in an early
decision, Lovejoy v. Murray(2), the United States Supreme Court refused to
follow the English Common Law. Miller J.
speaking on behalf of the Court, observed,
after referring to Broome (Brown) v. Wooten ( 3 ) and other cases:
"The rule in that case has been defended
on two grounds, and on one or both of these it must be sustained, if at 'all.
The first of these is, that the uncertain claim for damages before judgment
has, by the principle of transit in rem judicatam, become merged into a
judgment which is of a higher nature. This principle, however, can only be
applicable to parties to the judgment; for as to the other parties who may be liable,
it is not true that plaintiff has acquired a security of any higher nature than
he had before. Nor has he, as to them, been in anywise benefited or advanced
towards procuring satisfaction for his damages, by such judgment.
This is now generally admitted to be the true
rule on this subject, in cases of persons jointly and severally liable on
and no reason is perceived why joint
trespassers should be placed in a better condition. As remarked by Lord
Ellenborough, in Drake v. Mitchell, 3 East, 258, 'A judgment recovered in any
form of action, is still but a security for the original cause of action, until
it be made productive in satisfaction to the party; and, therefore, till then,
it cannot operate to change any other collateral concurrent remedy which the
party may have.' The second ground on which the rule is defended is, that by
the judgment against one joint trespasser, the title of the property concerned
is vested in the defendant in that action, and therefore no suit can afterwards
be maintained by the former owner for the value of that property, or for any
injury done to it.
This principle can have no application to
trespassers against the person, nor to injuries to property, real or personal,
unaccompanied by conversion or change of (1) 1Q.B.D.248, (2) 18L. ed.
(3) 80 E.R. 47.
968 possession. Nor is the principle admitted
in regard to conversions of personal property.
Prior to Brown v. Wootton, Cro. jac. 73, the
English doctrine seems to have been the other way, as shown by Kent, in his
Commentaries, 2 Kent, Com. 388, referring to Shepherd's Touchstone, Title,
Gift; and to Jenkins, p.
109, ease 88.
We have already stated the only two
principles upon which it rests. We apprehend that no sound jurist would attempt,
at this day, to defend it solely on the ground of transit in rem judicatam. For
while this principle, as that other rule, that no man shall be twice vexed for
the same cause of action, may well be applied in the case of a second suit
against the same trespasser, we do not perceive its force when applied to a
suit brought for the first time against another trespasser in the same matter.
But in all such cases, what has the defendant
in such second suit done to discharge himself from the obligation which the law
imposes upon him, to make compensation ? His liability must remain, in morals
and on principle, until he does this. The judgment against his co-trespasser
does not affect him so as to release him on any equitable consideration. It may
be said that neither does the satisfaction by his co-trespasser, or a release
to his co-trespasser do this; and that is true. But when the plaintiff has
accepted satisfaction in full for the injury done him, from whatever source it
may come, he is so far affected in equity and good conscience, that the law
will not permit him to recover again for the same damages. But it is not easy
to see how he is so affected, until he has received full satisfaction, or that
which the law must consider as such.
We are, therefore, of opinion that nothing
short of satisfaction, or its equivalent, can make good a plea of former
judgment in trespass, offered as ,a bar in an action against another joint
trespasser, who was not party to the first judgment." In India the English
Law has been generally followed.
The learned counsel for the appellant relies
on Ram Kumar Singh v. Ali Husain(1). The facts in that case in brief were as
follows. The plaintiff sued several defendants jointly to recover damages (Rs.
325/-) in respect of an alleged assault committed on him by (1) (1909) I.L.R.
31 All. 173, 175, 969 and accepted Rs. 25/- representing his proportionate
share of damages. The High Court held:
"The fact that one of several
tortfeasors in the progress of a suit 'admits his liability' as well as that of
the other defendants and agrees to pay a sum of money in satisfaction of his
liability does not exonerate the other defendants, who may be rouged
responsible for the acts complained of, from liability. In the case of
Brinsmead v. Harrison(1), one of the tort leasors was sued for damages for
trover of a piano and damages were recovered as against him. In that case it
was held that a suit against the other tortfeasor could not be sustained for
the same cause of action, notwithstanding the fact that the judgment already
recovered remained unsatisfied. That is a very different case from the case
before us. In the case before us all the tortfeasors were sued in one and the
same suit and judgment was not recovered only against the party who had admitted
his liability in the progress of the suit and had agreed to pay a sum of money
in satisfaction of his liability." This case was followed in Hat Krishna
Lal v. Haji Qurban Ali(2). But in these cases the decree was not passed first
against the tortfeasor admitting liability.
The learned counsel for the respondent relies
on Makhanlal Lolaram v. Panchamal Sheoprasad(5).. It was held in that case that
"an accord and satisfaction in favour of one joint tortfeasor operates in
favour of them all." Vivian Bose, A.J.C., observed:
"An accord and satisfaction in favour of
one joint tortfeasor operates in favour of them all; 9 QB 819, 11 A & E 453
and 6 Bing (N.C.) 52, Odgers on Libel and Slander, Edn. 6, p.
521, Ratanlal on Torts, Edn. 10, p. 71. The
basis of these decisions is that where the injury is one and indivisible it can
give rise to but one cause of action. Consequently if satisfaction is accepted
'as full and complete and against one person it operates with respect to the
entire cause of action." In Shiva Sagar Lal v. Mata Din(4) the facts as
stated in the head-note, in brief, were:
"Plaintiff filed a suit to recover
damages for malicious prosecution 'against five defendants of whom defendant 1
was a minor. It was alleged that the other defendants had instigated defendant
1 to make a complaint against (1) (1871-72) L.R.7 C.P. 547.
(2) (1942) I.L.R. 17 Luck. 284.
(3) A.I.R. 1934 Nag. 226, 227.
(4) A.I.R. 1949 All. 105.
970 the plaintiff. Subsequently, the
plaintiff filed an application that there had been a settlement between him and
defendant 1 and he had consequently released him. The application was allowed
and defendant 1 was discharged." Following Duck v. Mayeu(1) it was held
that the discharge' of defendant 1 amounted merely to a covenant not to sue him
and not to a release of all the joint tortfeasors. The English Courts adopted
this line of reasoning in order to soften the rigour of the common law, but in
the present case it cannot be said that the compromise amounted to a covenant
not to sue, as a decree was passed.
It seems to us, however, that the rule of
common law prior to Brown v. Wooton(2) and the rule adopted by the United
States Supreme Court is more in consonance with equity, justice and good
conscience. In other words, the plaintiff must have received full satisfaction
or which the law must consider as such from a tortfeasor before the other joint
tortfeasors can rely on accord and satisfaction. This rule would recognise that
the liability of tortleasors is joint and several.
What is full satisfaction will depend on the
facts and circumstances of the case. For example, the acceptance of Rs. 25/- in
the case of Ram Kumar Singh v.Ali Hussain(3) would not be a case of full
In this case an apology was received from the
defendant Rabadi and accepted and embodied in 'a decree.
This cannot be treated to be a full
satisfaction for the tort alleged to have been committed by the respondents-
defendants. But this must be treated as 'an election on the part of the
plaintiffs to pursue their several remedy against the defendant Rabadi.
The learned counsel for the respondents urges
that if a decree is passed against them for damages, the defendant Rabadi, who
compromised, would be liable to contribute in accordance with the rule laid
down in Dharni Dhar v. Chandra Shekhar(4) in which it was held that the rule in
Merry weather v. Nixon(5) did not apply in India. It is not necessary to decide
whether the Full Bench decision of the Allahabad High Court lays down the law
correctly, because even if it is assumed that this is the law in India it would not affect the rights of the plaintiffs.' In the result the appeal is
allowed, the judgment ,and decree of the High Court set aside and the case
remitted to the Trial Court. He shall dispose of the suit in accordance with
this judgment and law. No order as to costs.
V.P.S. Appeal allowed.
(1)  2 Q.B.D. 511.
(2) 80 E.R. 47.
(3) (1909) I.L.R. 31 All. 173 (4) I.L.R.
 1 All. 759 (F.B.).
(5) (1799) 8 T.R. 186.