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Agrenath Misir Vs. Ram Ratan Pandey and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1938All544
AppellantAgrenath Misir
RespondentRam Ratan Pandey and anr.
Excerpt:
- - it is manifest that if the mortgagor himself had no right to sue he could not give a better right to anyone else by an assignment of his right......of the plaintiffs of the unpaid part of the sale consideration which was left in the hands of the vendee. the plaintiffs thereupon brought the present suit for the recovery of the principal and interest. the suit was resisted by the defendant on the ground that the money due had been paid to ram ratan, deceased. at the trial of the suit a receipt purporting to have been thumb-marked by ram ratan was produced. the learned munsif, for the reasons given in his judgment, disbelieved the story of the defendant and decreed the claim of the plaintiffs. the decree of the court of first instance was affirmed by the learned civil judge. the defendant now comes to this court in appeal. learned counsel for the appellant has challenged the finding of the courts below with regard to the genuineness.....
Judgment:

Mohammad Ismail, J.

1. The facts that have given rise to this appeal are very simple. The plaintiffs Ram Ratan Pande and Durbasa Pande separately lent some money to Ram Ratan, deceased, on the security of two bonds. Ram Ratan then executed a sale deed In favour of defendant 1 and left part of the sale consideration in the hands of the vendee to be paid to the plaintiffs in liquidation of the debt due by Ram Ratan in favour of the plaintiffs. Some time after the execution of the sale deed, Ram Ratan died and was succeeded by his widow Mt. Ramsaki. Each of the plaintiffs brought a separate suit for recovery of the money due under the bond executed by Ram Ratan, deceased. In these suits, apart from the widow Mt. Ramsaki, the appellant Agrenath Misir was also impleaded. The suit against the widow was decreed but for obvious reasons the vendee was exempted as there was no privity of contract between the plaintiffs and the vendee. After the termination of this litigation, the widow executed a deed of assignment in favour of the plaintiffs of the unpaid part of the sale consideration which was left in the hands of the vendee. The plaintiffs thereupon brought the present suit for the recovery of the principal and interest. The suit was resisted by the defendant on the ground that the money due had been paid to Ram Ratan, deceased. At the trial of the suit a receipt purporting to have been thumb-marked by Ram Ratan was produced. The learned Munsif, for the reasons given in his judgment, disbelieved the story of the defendant and decreed the claim of the plaintiffs. The decree of the Court of first instance was affirmed by the learned Civil Judge. The defendant now comes to this Court in appeal. Learned Counsel for the appellant has challenged the finding of the Courts below with regard to the genuineness of the receipt. It is not open to the appellant in second appeal to re-open a finding of fact arrived at by the Courts below. I see absolutely no reason to disturb the findings of the Courts below on this issue.

2. The next point pressed by learned Counsel for the appellant is that the assignment of the money due to Ram Ratan could not be recognized in law and consequently the plaintiffs acquired no right to sue on the strength of the sale deed. In support of this contention reliance has been placed on Section 6(e), T.P. Act, and on Yadavendr v. Srinivasa (1925) 12 A.I.R. Mad. 62 and Abu Mahomed v. S.C. Chunder (1909) 36 Cal. 345. In my judgment the contention of learned Counsel for the appellant is untenable. Section 6(e) is confined in its operation to the transfer of a mere right to sue. The widow however was entitled to a liquidated sum which was part of the consideration which the vendee was under an obligation to pay to the vendor or to anyone else under the direction of the vendor. Under Section 55(b) of the Act, the vendee is bound to pay or tender at the time and place of completing the sale the purchase money to the seller or such person as he directs. In the present case it is not disputed that the vendee was directed to pay part of the sale consideration to the plaintiffs. The relation between the vendor and the vendee in view of the terms of the sale deed was that of a debtor and a creditor and the money left in the hands of the vendee was a debt which could certainly be transferred. There is no definition of the expression 'debt' in the Transfer of Property Act but it has been defined in various cases as 'an obligation to pay a liquidated sum of money' : see Tikam Singh v. Bhola Nath (1937) 24 A.I.R. All 470. This definition fully applies to the sum of money that was left with the vendee for payment to the plaintiffs. What was transferred by Mt. Ramsaki was an actionable claim as defined in Section 3, T.P. Act. 'Actionable claim' means a claim to any debt other than a debt secured by a mortgage of immovable property. Section 130, T.P. Act, provides the procedure to be followed in transferring an actionable claim. In my judgment Section 6, T.P. Act, does not apply.

3. The rulings cited by learned Counsel for the appellant are entirely distinguishable. In Yadavendr v. Srinivasa (1925) 12 A.I.R. Mad. 62 it was held that a suit for specific performance of an agreement to lend money on a mortgage does not lie. This however is not a suit for specific performance of an agreement to lend money but for the recovery of a portion of the price agreed to be paid by the vendee as a consideration of the sale deed. Again in the same ruling it was held that a claim for damages for non-payment of a portion of the consideration for which a mortgage was executed by the plaintiff is not transferable. It is manifest that if the mortgagor himself had no right to sue he could not give a better right to anyone else by an assignment of his right. I may mention that the view taken in the abovementioned case has been to some extent modified by a ruling of their Lordships of the Judicial Committee Manmatha Nath Mullick v. Hedait Ali and a ruling of this Court reported in Tikam Singh v. Bhola Nath (1937) 24 A.I.R. All 470. In Manmatha Nath Mullick v. Hedait Ali their Lordships remarked as follows:

In their Lordships opinion what was assigned to the appellant was not a mere right to sue but a claim for a definite sum of money which the lessee was bound by his contract with Banerjee to repay to him. This would, their Lordships think, be an actionable claim to which Section 130 of the Act would apply.

4. The facts of the present case are stronger and I have no hesitation in holding that the transfer of the debt due to Mt. Ramsaki could be validly transferred and the plaintiffs had a legal right to sue. In the result the appeal fails and is dismissed with costs throughout. Leave to appeal under the Letters Patent is refused.


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