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Keval Vanmali Vs. Fakira Jivan Deceased by His Sister Bai Lakai and ors. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom42
AppellantKeval Vanmali
RespondentFakira Jivan Deceased by His Sister Bai Lakai and ors.
Excerpt:
.....validity of - public policy--indian, contract act (ix of 1873), section 23--void contract--transfer of mortgage hand for valuable consideration. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1..........contract act, as being opposed to public policy, inasmuch as it has long been established law in india that a chose-in-action is assignable. see kadarbncha sahib v. rangaswami nayak 1 mad. h.c. r 150 ; kanhaiya lal v. domingo l.r. 1 all. 732 ; gokuldas jagmohandas v. lakhmidas khimji i.l.r. 3 bom. 402 ; abdool hakim v. doorga proshad banerjee i.l.r. 5 cal. 4. the case of chedambara chetty v. renga krishna muthu vira puchaiya naickar l.r. 1 indap 241 was of a peculiar nature. but the principle laid down even there would not forbid the transaction now in suit. in chinnayya rawutan v. chidambaram chetti i.l.r. 2 mad. 212 it was ruled that, in india, as in england, a mortgagee may transfer his rights to a third person by way of assignment. in places where the transfer of property act, no......
Judgment:

Birdwood, J.

1. The plaintiff in this case is the assignee of a mortgage-deed executed by the defendant to one Fakira. The District Judge finds that the transaction was a genuine one, 'so far as that a real transfer of the deed for a valuable consideration took place.' That being so, we do not think that he was right in rejecting the claim, on the ground that such a transfer 'was an act of speculation in litigation,' which ' would, if sanctioned encourage professional litigants to speculate in doubtful claims.' It cannot be held that such a transaction is void under Section 23 of the Contract Act, as being opposed to public policy, inasmuch as it has long been established law in India that a chose-in-action is assignable. See Kadarbncha Sahib v. Rangaswami Nayak 1 Mad. H.C. R 150 ; Kanhaiya Lal v. Domingo L.R. 1 All. 732 ; Gokuldas Jagmohandas v. Lakhmidas Khimji I.L.R. 3 Bom. 402 ; Abdool Hakim v. Doorga Proshad Banerjee I.L.R. 5 Cal. 4. The case of Chedambara Chetty v. Renga Krishna Muthu Vira Puchaiya Naickar L.R. 1 IndAp 241 was of a peculiar nature. But the principle laid down even there would not forbid the transaction now in suit. In Chinnayya Rawutan v. Chidambaram Chetti I.L.R. 2 Mad. 212 it was ruled that, in India, as in England, a mortgagee may transfer his rights to a third person by way of assignment. In places where the Transfer of Property Act, No. IV of 1882, is in force, transfers of actionable claims are expressly allowed. We reverse the decrees of the Courts below, and remand the case for a trial on the merits. Costs to abide the result.


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