Old field, J. — The Lower Appellate Court has so far decided the case against the plaintiff-appellant, because it answered in the affirmative the question whether a person holding under a lease granted before a suit is bound by the decision against his lessor in that suit, although he is not a party to it. We cannot follow the Lower Appelate Court in this; and in fact the only support adduced for its opinion is the quotation from the American author in Seshappaya v. Venkataramana Upadya(1). But the portion of that quotation at present material was not so for the purpose of the issue in that case and the learned Judges in fact, after observing that it was inconsistent with the principle of English, Irish and Indian Cases, declined to decide as to its correctness. On the other hand, although, no case of tenancy has been shown us, the principle applied to other cases of transfer in Sita Ram v. Amir Begam Joy Chandra Banerjee v. Sreemath Chatterjee Abdul Alii v. Miakhan Abdul Hussain and Ramabadra Bando v. Malkajsa is in accordance with plaintiff's contention. Adopting that principle, we must set aside the Lower Appellate Court's decree and remand the appeal to it for further hearing on its merits. Costs to date here and in the Lower Appellate Court will be provided for in the decree to be passed. Stamp value will be refunded on application.
Ramesam, J.—I will only add that an illustration of the principle of Privity by Subordination Mr. Bigelow gives, (6th edition at p. 160) is the common law case of foeffor and feoffee. This he says is Coke's illustration. Then he mentions the case of landlord and tenant for which no authority is cited. On the other hand Black on Judgments, Vol II, Sect. 549 states the law in the other way citing Satterlee v. Bless(6)……so that even in America it is doubtful whether the law as to landlord and tenant is as stated by Mr. Bigelow. All other authority is against it. I agree in the order of my learned brother.
C.KCase remanded.