The main legal point established in the judgment is that the common law rule does not apply in India without considering the terms of the contract, circumstances attending on it, or the necessities of the case.

Leach, C.J.

1. The question which is involved in this petition is whether the Subordinate Judge of South Malabar sitting at Palghat was right in holding that he had jurisdiction to try a suit instituted by respondent 1 against the petitioner and respondent 2. The petitioner is the husband of respondent 1 and the son of respondent 2. The petitioner and his father are members of a joint Hindu family. The petitioner married respondent 1 at Negapatam in the month of June 1929. It is respondent 1a case that at the time of her marriage she entrusted her stridhanam property to respondent 2, who was to re-deliver it to her on demand. She alleges that the property entrusted to him consisted of Rs. 1750 in cash and jewels, furniture and household utensils of the value of Rs. 3352. Respondent 1 alleges that, while she was living with her husband at Vellore, where they went to reside after leaving Negapatam, his treatment of her was so cruel that she was compelled to leave him and return to her fathers house at Palghat. At the time the suit was filed the petitioner was residing at Vellore in the North Arcot District and his father at Mayavaram in the Tanjore District. In filing the plaint in the Court of the Subordinate Judge of Palghat, respondent 1 relied on the rule of English common law that the debtor must seek out his creditor and pay his debt where the creditor happens to reside, unless there is an arrangement to the contrary. She contended that both her husband, and her father-in-law were her debtors, the husband being indebted to her for moneys in respect of her maintenance and her father-in-law in respect of the properties entrusted to him. So far as the husband is concerned her claim is for Rs. 3400 for past maintenance and for future maintenance at the rate of Rs. 60 per mensem. The Subordinate Judge accepted the contention that the common law rule applies in this case and held that the Court had jurisdiction to try the suit.

2. Section 20, Civil P.C., states that, subject to the limitations contained in Sections 16 to 19, every suit shall be instituted in a Court within the local limits of whose jurisdiction, (a) the defendant, or each of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; (b) any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that the leave of the Court is given or the other defendants acquiesce in the suit being instituted there; or (c) the cause of action, wholly or in part, arises. It is quite clear that in this case the cause of action does not arise, even in part, at Palghat and neither of the defendants resides or works there. Therefore, the order of the Subordinate Judge can only be supported if the defendants are to be regarded as debtors and the common law rule that the debtor is bound to seek out his creditor applies here. Section 49, Contract Act, states that, when a promise is to be performed without application by the promisee and no place is fixed for its performance, it is the duty of the promisor to apply to the promisee to appoint a reasonable place for the performance of the promise and to perform it at the place appointed. There is nothing in the Contract Act or in any other statute which states what is to be the position when the promisor fails to fulfil the duty imposed upon him by this section. In Raman Chettiar v. Gopalachari (1908) 31 Mad. 223 which is a case under the Code of 1882, a Bench of this Court held that the common law rule does not apply in India, but it has been argued that this decision has in effect been overruled by the judgment of the Privy Council in Soniram Jeetmul v. R.D. Tata & Co. Ltd. I do not read the judgment of the Judicial Committee as deciding that that rule can always be applied in In