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M. Ponnusami Pillai and anr. Vs. Chidambaram Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1918)35MLJ294
AppellantM. Ponnusami Pillai and anr.
RespondentChidambaram Pillai and ors.
Cases Referred(See Chuni Lai v. Abdul Ali Khan I.L.R.
Excerpt:
- - , the deed of assignment, of the fact that the decree was under appeal clearly indicates the intention of the parties that all rights under the decree should pass......22, rule 10(1) contemplates such an assignment of interest being made during the pendency of a suit (suit including appeal vide sub-clause 2 and rule 11) and the continuance of the suit or appeal by the assignee. the mention in ex. a., the deed of assignment, of the fact that the decree was under appeal clearly indicates the intention of the parties that all rights under the decree should pass. the assignees (respondents) 2 to 23 in this court) in this case having in fact been brought on record as parties to the appeal must be deemed to have succeeded to all the rights and liabilities of their assignors (see chuni lai v. abdul ali khan i.l.r. 1901 a. 331. in this view it is unnecessary to invoke the doctrine of lis pendens which applies under section 52 of the transfer of property.....
Judgment:

1. The first question to be decided in this appeal is whether the assignment pendente lite of the decree of an original court carried with it the right to execute whatever decree may be passed in appeal. We hold that it did in this case, under the present Code of Civil Procedure at any rate.'

2. The change of language in Order 21 Rule 16 compared with SECTION 232 in the old Code is significant. It evidently arose out of the decision in Muthunarayana Reddi v. Balkarishna Reddi I.L.R. (1896) M. 306.

3. It shows that what is really transferred when a decree is assigned is not the decree itself but the interest of the decree-holder in the decree. The word ' interest' must mean the interest as finally determined. Order 22, Rule 10(1) contemplates such an assignment of interest being made during the pendency of a suit (suit including appeal vide Sub-clause 2 and Rule 11) and the continuance of the suit or appeal by the assignee. The mention in Ex. A., the deed of Assignment, of the fact that the decree was under appeal clearly indicates the intention of the parties that all rights under the decree should pass. The assignees (respondents) 2 to 23 in this court) in this case having in fact been brought on record as parties to the appeal must be deemed to have succeeded to all the rights and liabilities of their assignors (See Chuni Lai v. Abdul Ali Khan I.L.R. 1901 A. 331. In this view it is unnecessary to invoke the doctrine of lis pendens which applies under Section 52 of the transfer of Property Act to immoveable property, a class of property into which a simple money decree cannot be treated as falling.

4. The next question is whether a power of attorney given by two members of a Hindu trading family must be deemed to be terminated by the death of one of the members.

5. Section 253(10) of the Indian Contract Act declares that a partnership is dissolved by the death of a partner. There is no principle of Hindu law that a joint family is extinguished by the death of one member, but if one member dies without effecting a partition, his undivided share passes by survivorship to the surviving members of the family. In the present case the uncle Venkatachallam Chetty died without other heirs than his nephew Chidambaram Chetty with whom he was joint till the day of his death. The whole of his interest therefore devolved on the survivor whose authority to the agent' contained in the power of attorney remained unaffected by the death of one of the principals (See Re Sital Prasad 21 C.W.N. 620. It is not suggested that the surviving principal (1st respondent) has revoked or attempted to revoke his authority under Exn. B. The objection is a technical one coming only from the judgment debtors. The 1st respondent after being made a pary to these proceedings has taken no part in supporting this objection. On both points the District Judge's decision was right. We must therefore dismiss the appeal with costs.


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