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Vythilingam Padayachi Vs. Seetaramaiyar - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Reported in(1900)10MLJ77
AppellantVythilingam Padayachi
RespondentSeetaramaiyar
Cases ReferredNilahanta v. Krishnasami I.L.R.
Excerpt:
.....this may be we shall assume that the provisions of section 135, transfer of property act, apply to a case like the present. it would follow, therefore, that judgment' in clause (d) may well include foreign judgments. the only item as to which there is any evidence apparently reliable is the sum of rs......is any evidence apparently reliable is the sum of rs. 2,000 recived in the deed of assignment as paid to nagammal. as the evidence of the attesting witness called by the defendant himself implies that the said sum was understood to have been paid, the subordinate judge seems to be warranted in accepting the testimony of the plaintiff's, witnesses who speak to this payment. but as to the item of rs. 3,500, which also was found by the subordinate judge to have been paid, the evidence is altogether meagre and unsatisfactory. chinnasami nayak, who is said to have received the money, is the only one that speaks to the payment. his statement that his deceased brother had advanced rs. 3,000 to nagammal can hardly be believed, considering that the promissory note said to have been executed by.....
Judgment:

1. The plaintiff, as the assignee of a judgment passed by the Supreme Court of Port Louis in Mauritius in favour of one Nagammal for Rs. 12,297 against the defendant, brought this suit for the recovery of the amount with' interest. The defendant contested the claim and the questions raised at the trial were--

(1) Was the judgment one passed on the merits?

(2) Was it obtained by fraud?

(3) Was the plaintiff entitled to recover the amount due under the judgment without reference to the price actually paid by him for obtaining the assignment?, and

(4) What amount, if any, was so paid?

2. The Subordinate Judge decided the first question in the affirmative and the second and third questions in the negative. As to the fourth he found that the plaintiff had paid Rs. 5,500.

3. He gave a decree for that sum with interest on a part thereof and for the expenses incidental to the assignment.

4. The plaintiff and the defendant appeal against the decree in so far as it is against each.

5. It will be convenient to take the appeals together and deal with the questions raised in order.

6. It was first urged for the defendant that the Court in Port Louis had no jurisdiction to entertain the suit instituted by Nagarnmal. But, assuming that the defendant was originally not subject to the Jurisdiction of that Court, he having appeared in the suit without raising the plea of want of jurisdiction and contested it on other grounds, he must be held to be precluded jn the present suit from relying on the present objection.

7. The next contention on behalf of the defendant was that the Subordinate Judge was in error in holding that the judgment sued upon had been passed on the merits. The important point which arose on the merits before the Port Louis Court was as to the 'liability of the defendant to account to Nagammal in respect of his management of the business carried on by him in partnership with certain others, of whom Nagammal's deceased husband, Na-gappan, was one. That that point was fully considered and directly decided is manifest from the record of the proceedings exhibited in the present case. And as to the actual relief granted by the judgment in question the amount made payable thereby was not as suggested for the defendant, in the nature of a penalty inflicted for contumacy on the defendant's part but awarded as the amount which, in the special circumstances of the case, the Court was entitled to take as due to Nagammal. For, the defendant having failed to file accounts connected with his management as ordered by the Court, and it having been admitted that Rs. 8,000 had been paid by Nagappan for his share of the capital, it was open to the Court to presume that that amount at least was repayable to Na-gappan's representative. Compare Walmsley v. Walmsley 3 Jo.& L 556. The contention under consideration is therefore unsustainable. And as there is absolutely no ground for suggesting that there was any fraud in obtaining the judgment, it must be held to be valid and' supportable on the merits also even if it be a judgment into the merits of which it is open to the Courts of this country to enter on the ground that the foreign Court which passed it was, as urged for the defendant, not a Court of Record established by Letters Patent from Her Majesty or any predecessor of her Majesty--a point which it is unnecessary to consider.

8. Passing now to the assignment under which the plaintiff, claims, the first question for determination is whether the trans-action is opposed to public policy in the manner explained by the Judicial Committee in Ram v. Coomar Coondoo v. Chunder Canto Mookerjee. I.L.R. (1876) 2 C. 233 It was not suggested that the plaintiff had obtained the assignment from Nagammal by fraud or undue influence. Nor could it be rightly argued that the transaction was entered into for injuring the defendant by stirring up unrighteous litigation, inasmuch as the right transferred by the assignment had, after contest, been established before a judicial tribunal. The fact that the assignee undertook to make certain payments to the assignor and others only in the event of his recovering the money due by the defendant under the judgment would by itself hardly warrant the plaintiff being looked upon as a mere gambler in litigation. The assignment cannot, therefore, be held to be void.

9. The second important question is whether the assignee is entitled to the whole amount decreed by the Mauritius Supreme Court, or only to that which he had paid, if any. This question was argued as though it depended solely on the construction to be placed on Clause (d) of Section 135 of the Transfer of Property Act. It was argued for the assignee that the Clause (d) is equally applicable to foreign judgments, while on the debtor's side it was argued that the Court in Section 130 and in Section 135, Clause (d), must refer only to Courts in British India, and, if the judgment be not one of a Court in British India, the assignee is entitled under the former part of Section 135 only to the amount paid by him together with incidental expenses. In contending thus, it seems to have been assumed by both sides that the provisions of the Transfer of Property Act with reference to transfer of actionable claims would be applicable to assignments of the kind here.

10. The chapter on actionable claims and especially Section 135 in it has given rise to many conflicting decisions. It is not clear, when a claim had been adjudicated upon by a Court of competent jurisdiction, whether the right under the judgment is an actionable claim. However, we are bound to start from the position laid down by the Full Bench in Nilahanta v. Krishnasami I.L.R. (1890) M.k 225. that the right under a judgment of a Court in British India is an actionable claim. It would seem to follow a fortiori that the judgment of a foreign Court is also an actionable claim.

11. So far as we are aware, there does not seem to be any express decision determining the rights and liabilities of the parties in a case like the present, i.e., of an assignee of a judgment obtained elsewhere but assigned in this country. The question is not free from difficulty. Now, looking for a moment at the right acquired by Nagammal under the judgment of the Mauritius Supreme Court, and considering it as, standing in this country on no higher footing than a. contractual right with a corresponding obligation on the defendant, it is not clear, when the right was assigned in this country, what the law is which governs assignment, not, only between the assignor and the assignee, but also between the as signee and the debtor. While the views of continental jurists are in themselves divided (see,Bar's Private International Law, 608 and 609, 2nd Edition), the trend of judicial opinion in England seems to be that the validity of the assignment must be regelated by the law of the lex situs of the debt and the liabilities of the debtor by the law governing the contract between him and the creditor. (See Dicey's Conflict of Laws, Rule 141, p. 533.) In the case of judgment-debts, so far as any locality can be ascribed to them, they are generally deemed to be incurred in the place where the judgments were passed and where they would be executed, and consequently, the law of that place must regulate the liabilities of the judgment-debtor, wherever the assignment might have been made and the debtor cannot seek to lessen his liability, as it cannot be increased, by recourse to the law of the place of assignment. In this view, the law of Mauritius would apply and the defendant would be bound to pay the whole amount as decreed by the Supreme Court of Mauritius.

12. However, this may be we shall assume that the provisions of Section 135, Transfer of Property Act, apply to a case like the present. It is difficult to see how, even then, the defendant can escape his liability to pay the full amount of the judgment-debt. Now the ground on which a judgment of a foreign court is enforced in this country is that a duty or obligation is imposed upon the defendant to pay the sum adjudged which the Courts of this country are bound to enforce. And considering that judgments of foreign courts cannot be re-opened here on the merits except in certain cases nor can be examined except for certain specified reasons, they, are, in the absence of any such reasons, conclusive of the merits of the cause of action and of all facts of which domestic judgment would be conclusive. Such being the effect of foreign judgments under the rules of Private International Law, we have to see whether, when such a judgment is assigned in this country, there is anything in the Transfer of Property Act which, will relieve the debtor from paying more than the price paid by the assignee of the judgment; in other words, anything to minimise the effect of foreign judgments. It is true that ordinarily legislation of a country is territorial. But there is also a rule of interpretation that the statute of a country must be so interpreted and applied as not, in the absence of express and clear language to the contrary, to run counter to the recognised rules of International Law and all general terms must be narrowed in order to avoid such a construction (see Maxwell on the Interpretation of Statutes, p. 200, 3rd Edition). If the words,' however, are wide enough, and the giving effect to them in their wide sense would be in harmony with rules of International Law, there seems to be no reason why the words should not be given such effect. It would follow, therefore, that judgment' in Clause (d) may well include foreign judgments.

13. Moreover, the foundation on which the rule embodied in Section 135 rests, viz., the preventing of commerce in litigation to the detriment of the debtor, is inapplicable to the present case. The partnership was entered into in Mauritius and the business was carried on there. When the suit was brought in the Supreme Court of Port Louis by Nagammal claiming her husband's share in the partnership property, the defendant concasted it and did everything to defeat the claim of Nagammal, and a valid judgment was passed by the Supreme Court on consideration. Having taken the chance of a judgment in his favor, the defendant cannot now, by flying to this country, evade the payment of the judgment-debt whether it is to the judgment-creditor or to his assignee. There is nothing oppressive or inequitable to the debtor in calling upon him to pay the full amount of the judgment-debt. We would, there-force, hold that the assignee is entitled to the whole amount.

14. As, however, this case may not stop here, and, in case the above view is overruled, it would be necessary to go into the fourth issue, i.e., as to the amount actually paid by the assignee, would state our conclusion as to in also. The only item as to which there is any evidence apparently reliable is the sum of Rs. 2,000 recived in the deed of assignment as paid to Nagammal. As the evidence of the attesting witness called by the defendant himself implies that the said sum was understood to have been paid, the Subordinate Judge seems to be warranted in accepting the testimony of the plaintiff's, witnesses who speak to this payment. But as to the item of Rs. 3,500, which also was found by the Subordinate Judge to have been paid, the evidence is altogether meagre and unsatisfactory. Chinnasami Nayak, who is said to have received the money, is the only one that speaks to the payment. His statement that his deceased brother had advanced Rs. 3,000 to Nagammal can hardly be believed, considering that the promissory note said to have been executed by Nagatnmal's brother in connection with such advance, has neither been produced, nor its non-production accounted for. And the fact that the vouchers which Chinnasami Nayak says he gave to the plaintiff with reference to the alleged payment have been kept back by the plaintiff throws grave doubt upon this part of his case. That all the sums, other than Rs. 2,000,which the plaintiff agreed to pay under the assignment, inclusive of the Rs. 3,500 in question, were, according to the real understanding come to at the time of the assignment, to be paid by him only in the event of his recovering the money from the defendant is shown by the evidence of Nagammal herself who was manifestly supporting the plaintiff. It is consequently highly improbable that the plaintiff would have paid or made himself unconditionally responsible for any of these sums as now alleged on his behalf. He must, therefore, be held to have paid only the sum of Rs. 2,000 paid to Nagammal and the sum of Rs. 200 which was no doubt disbursed by him on account of the cost of the stamp paper, &c.;, in connection with the assignment.

15. Having regard, however, to the view already stated with reference to the contention founded on Section 135, Clause (d). Transfer of Property Act, we would modify the decree of the Lower Court by awarding to the plaintiff Rs. 12,297, with interest thereon at 6 per cent per annum, from the date of the plaint to, the date of payment, allowing so far the plaintiff's appeal with costs. We would dismiss the defendant's appeal with costs.


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