1. This is an application to revise the judgment of the second Subordinate Judge, First Class, empowered under Section 18 of the C.P Courts act, Amraoti, in civil Suit No. 212 of 1944, decided on 26-7-1944. The applicant is an eye specialist of repute who has his place of practice at Nagpur and Amraoti. Non-applicant 1 Indarchandji is a substantial money-lender, non-applicant 2 Laxmibai is his wife and non-applicant 3 Mohanlal is his son-in-law. As alleged in the plaint Mohanlal with Mt. Laxmibai approached the applicant for getting the cataract in her left eye removed. They agreed to pay the operation and incidental charges. The applicant accordingly performed the operation on 5-12-1943 and she remained as an indoor patient in the applicant's hospital until she was discharged on 14-12-1943.
2. The applicant sued to recover an amount of Rs. 188 as the price of the professional work done by him in accordance with the agreement with Mohanlal and Mt. Laxmibai. As against Indarchandji it was alleged that he was liable to pay as the husband of Mt. Laxmibai. The case proceeded ex parte against the defendants and the claim was decreed against Mohanlal alone. The applicant pressed for a decree to be passed against Indarchandji and his wife Mt. Laxmibai on the ground that both of them were benefited by the professional services rendered by the applicant. It is unfortunate that the applicant himself did not go into the witness-box to prove the particulars of the contract effected by the parties. He examined his compounder who simply said that Mohanlal had brought Mt. Laxmibai for operation and that there was an agreement to pay Rs. 150 as fees for the operation and the room rent Rs. 2 per day during the period of her treatment as an indoor patient for ten days. A letter purported to have been received by the applicant from Indarchandji is filed in the case and is shown as having been proved by Gopal. But there is nothing to be found with reference to this document in the deposition of Gopal except that Indarchandji was the husband of Mt. Laxmibai. That document cannot properly be taken into consideration as evidence in the case. As I read the evidence of Gopal in the light of the averment made in para. 1 of the plaint regarding Mohanlal and Mt. Laxmibai, it appears clear that Mt. Laxmibai acting jointly with Mohanlal settled the terms of the operation with the applicant. Consequently, Mt. Laxmibai would be liable as a principal party to the agreement. I therefore see no difficulty in agreeing with the applicant as to the liability of Mt. Laxmibai.
3. The case against Indarchandji is sought to be rested on his relationship as the husband of Mt. Laxmibai. His liability would conceivably arise in any of the following ways:
(1) That he was a party to the agreement with the applicant. (2) That the agreement with his wife was in the capacity of an agent of her husband.
4. There is no evidence to prove that Indarchandji was a party to the agreement with the applicant. Any assumption to that effect would be at variance with the allegations made in the plaint, which were as follows:
“Defendant 3 Mohanlal came to the plaintiff with defendant 2 Laxmibai to get her left eye operated as she had cataract in it. They settled the fees of the plaintiff as detailed below. Upon the settlement the plaintiff operated the eye of the defendant….”
5. There is no doubt a sentence which runs “the defendants agreed to pay the operation fees and other charges on the day of discharge”. But reading the word “defendants” with its context in para. 1 and the contents of para. 4 it would be clear that it has reference only to Mohanlal and Mt. Laxmibai. In any case the witness Gopal does not say anything about the agreement with Indarchandji. The contention of the learned counsel for the applicant that there was an express agreement with Indarchandji must fail.
6. The question of Indarchandji's liability in so far as it was sought to be rested on his being her husband is not free from difficulty. It may be conceded that the medical treatment given to Mt. Laxmibai would fall within the category of necessaries. Lush on Husband and Wife, p. 334, Edn. 4, states that the term “necessaries” is ambiguous bearing different meanings according as to whether it is used as to goods supplied where the spouses are living apart or living together. But he points out that there are certain “necessaries” which are “necessaries” in all cases and says that a wife living with her husband has a right to assume his assent to her contracts for the purposes of obtaining medical advice, and adds as a husband is bound by law to provide the wife, with what is necessary to keep her in health, it would seem that if she has not the means she could obtain it even in spite of his dissent.” In England at common law originally the effect of coverture was the incapacity of a married woman to enter into contract and any contract of married woman was altogether void against her husband. That strict common law doctrine was modified by exceptions in order to carry out the requirements of social life. One of such exceptions was that a married woman was enabled to enter into a contract as the agent of her husband and as such agent she could bind him. The Married Women's Property Act of 1882 and 1893 made no changes in so far as the contract which the wife was entitled to make as agent on behalf of her husband, and the general principles which formerly applied to this class of contracts are still applicable; see Lush on Husband and Wife, Edn. 4, p. 298. A wife living with her husband in an ordinary way is entitled to pledge his credit for such necessaries as procuring medical advice: see Lush, p. 299.
7. In (1880) 6 A.C 241 it was held that an implied agency to buy necessaries is presumed when a person dealing with a wife and seeking to charge her husband proves that the wife is living with her husband and managing the household affairs. The question whether a wife has authority to pledge her husband's credit is to be treated as one of fact, upon the circumstances of each particular case, whatever may be the presumption arising from any particular state of circumstances (see ibid p. 31).
8. In India the capacity of a woman to contract is not affected by her marriage either under the Hindu or the Mahomedan Law. There is no disability attached to a Hindu female, married or unmarried, to preclude her from entering into a contract either on the ground of sex or coverture. In terms of Section 187 of the Contract Act, an Indian woman, when she enters into a contract with the consent or authority of her husband, is treated as his agent and her act is made binding on her husband; and in certain circumstances the law empowers her, even without his authority, to bind her husband by her contracts on the ground of necessity to pledge her husband's credit: see, 3 ALL. 122,2 A.I.R 1929 Lah. 183 and A.I.R 1933 Mad. 686.4 Otherwise a married woman cannot bind her husband without his authority but she may be liable on her contract to the extent of her stridhan property: see, 1 Bom. 121.5 The person who deals with a Married woman must plead and prove in what capacity she purported to enter into contract with him as an agent for her husband or as a principal on her own account. The plaintiff has to state clearly whether the suit was against the wife as the agent of her husband or as the principal. The plaintiff's remedy is alternative and cannot be made available against both the spouses: see, 1904 A.C 11.6
9. In the present case the plaintiff expressly alleged that he had entered into contract with the wife but did not aver that she was acting with the consent or authority of her husband. It must therefore be held that the plaintiff contracted with Mt. Laxmibai as a principal acting on her own account and not as an agent of her husband. It may be that she has separate property; but if she has not, the plaintiff cannot succeed on the footing that she was an agent of her husband when he had entered into contract with her as a principal.
10. In the course of the argument, an appeal was made to the principles underlying Sections 68 and 70 of the Contract Act, for making the husband liable. Indeed S. 68, deals with the supply of necessaries but that is in respect of a person incapable of entering into a contract or “any one whom he is legally bound to support”, i.e the dependent of a person incompetent to contract Indarchandji was not incompetent to contract and this section is inapplicable to him. As to S. 70, it must be obsarved that this section cannot be availed of by a person who relies on an express contract as the plaintiff alleged to have entered into with Mt. Laxmibai in this case. The husband never entered into the picture when the plaintiff settled the terms with her. Nor is there anything to show how the husband received any benefit. It is only actual benefit which will famish a ground of action. If the wife had been ??? of her ailment completely, perhaps that circumstance might be material; but there is no evidence on the point. For the foregoing reasons I hold that Indarchandji is not liable. The revision petition succeeds against Mt. Laxmibai but fails against Indarchandji. The lower Court's decree will be raided accordingly. Mt. Laxmibai will pay the applicant's costs of this petition and the applicant will pay the costs of Indarchandji. Counsel's fees Rs. 15.
11. Order accordingly.