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A.M.S. Sheik Muhammed Maracair Vs. Bathummal Beevi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1948Mad458; (1948)1MLJ298
AppellantA.M.S. Sheik Muhammed Maracair
RespondentBathummal Beevi
Cases ReferredRajeswar v. Sheik Yadali
Excerpt:
- - the question is whether this contention is well founded. her case is that certain property was entrusted to the defendant as agent for management and that during the course of such management he failed to pay to her the balance due after rendering proper accounts......that a mere right to sue cannot be transferred. it is urged on behalf of the petitioner that the right claimed by the principal against the agent in this suit is merely a right to damages and not property. it must be noted here that the basis of the plaintiff's claim against the defendant is not that the agent was guilty of any act of negligence and that therefore she is entitled to recover money from the defendant as damages. her case is that certain property was entrusted to the defendant as agent for management and that during the course of such management he failed to pay to her the balance due after rendering proper accounts. in essence, therefore, the claim is that her property remained in the hands of the defendant and that she is entitled to recover it back. it is difficult to.....
Judgment:

Satyanarayana Rao, J.

1. This revision petition is filed by the defendant against the order of the Subordinate Judge of Tuticorin upholding the decision of the District Munsiff of Srivaikuntam passed under Order 22, Rule 10 of the Civil Procedure Code.

2. One Bathummal Beevi executed a power of attorney in favour of the defendant authorising him to manage her properties and to make collections of the rents and profits of the shops and buildings. The defendant who was thus constituted the plaintiff's agent continued to manage until the power of attorney was revoked. As the defendant did not render an account of his management to Bathummal Beevi, the principal, she instituted a suit for an account and for recovery of the amount found due after taking acccounts. She assigned her rights in the money due from the defendant to the present respondent on the 3rd July, 1943, whereby the assignee was clothed with rights to recover from the defendant all the amounts belonging to the assignor and remaining in the hands of the defendant; and, if necessary by joining himself as a plaintiff in the suit already instituted. There was a preliminary decree in the suit on the 23rd September, 1943, and the original plaintiff died on the 13th November, 1945. On the 27th December, 1945, the assignee applied under Order 22, Rule 10 of the Code to implead him as a party to the suit on the strength of the assignment. The District Munsiff recognised -the assignment and impleaded him as plaintiff. This order was confirmed on appeal by the Subordinate Judge.

3. In this revision petition against the order of the Subordinate Judge the only point urged on behalf of the petitioner is that the order of the learned Judge recog-nising the assignment as valid, is erroneous as what was assigned under the document was a mere right to sue and not the property. The question is whether this contention is well founded.

4. Under Section 6 of the Transfer of Property Act property of any kind may be transferred and one of the exceptions is that a mere right to sue cannot be transferred. It is urged on behalf of the petitioner that the right claimed by the principal against the agent in this suit is merely a right to damages and not property. It must be noted here that the basis of the plaintiff's claim against the defendant is not that the agent was guilty of any act of negligence and that therefore she is entitled to recover money from the defendant as damages. Her case is that certain property was entrusted to the defendant as agent for management and that during the course of such management he failed to pay to her the balance due after rendering proper accounts. In essence, therefore, the claim is that her property remained in the hands of the defendant and that she is entitled to recover it back. It is difficult to see how a claim of this kind can be said to be a mere right to sue. No doubt in order to recover the property of the plaintiff in the hands of the defendant a suit may be necessary if an account is not rendered by the defendant, the agent, and the balance in his hands is not made over to the plaintiff, the principal. But that does not mean that what is assigned is merely a right to institute the suit. In my opinion the transfer is of the property in the hands of the defendant. It may be that the assignee may have to institute a suit or as in the present case may have to continue the suit already instituted. But that would not make the assignment any the less an assignment of the property. In cases where a person sues merely for damages there is no property in the hands of the defendant in the action; the assignment of that right could clothe the assignee merely with a right to institute an action and recover whatever is possible to recover in such a suit. The object of the assignment is not to transfer any property but merely a right of action.

5. Bearing these facts in mind the decisions cited by the learned Advocate-General on behalf of the petitioner may now be considered. The case on which considerable reliance has been placed by him is the decision reported in Syud Tuffuzzool Hossein Khan v. Rughoonath Pershad (1871) 14 M.I.A. 40. In that case a decree-holder who could not recover anything from the judgment-debtor attached as the property of the debtor, a certain claim in a pending arbitration between the judgment-debtor and his quondam partner. The property attached is described as a ' claim remanded by the Lords of the Privy Council for the settlement of accounts and referred to arbitrators.' This claim was brought to sale and was purchased by the appellant before the Judicial Committee. One of the questions which their Lordships had to consider was whether the claim attached was property within the meaning of Section 205 of the Civil Procedure Code, Act VIII of 1859, corresponding to the present Section 60. In dealing with this question their Lordships observed at page 46:

The sum so claimed, however, had no existence at the time of the attachment; it was not a debt nor liability at that time from Sheonath (the quondam partner) to Ramanath's (judgment-debtor's) son; it was a debt created by the award and not the liquidation of a preceding unliquidated demand ex contractu. It was (amongst other matters) an award of an extinguished share of debts which were till then debts due to the partners jointly, and became under the award the sole property of Sheonath.

6. Again at page 51 their Lordships state:

In the present case the attachment, as it has been observed, is not of the antecedent share in the undivided assets. It is of a claim under a future award, as to which it is wholly uncertain, until the award be made, to what the debtor will be entitled. The uncertainty at the time of the attachment and sale was not limited to a mere question of quantum; it was wholly uncertain, as Sir George Couper has correctly explained in his judgment, in what the arbitration might terminate.

7. It would be seen from these passages, therefore, that at the time of the attachment there was no award, no debt and no unliquidated claim based on any contract which resulted in an award after ascertainment of the amount due. That case, therefore, in my opinion, has no analogy to the present case which, as stated above, is based on the allegation that the defendant is in possession of the funds of the lady and that the only thing that remained to be done was to ascertain the amount.

8. The other decision in Annu v. Somasundara (1930) 62 M.L.J. 45 : I.L.R 54 Mad. 654, relied on, on behalf of the petitioner does not help the petitioner's contention. All that was decided there was that in a suit by the principal against the agent it is possible to give a decree in favour of the agent against the principal. In discussing the question of limitation the learned Judges had to consider the essence of a suit for account by the principal against the agent; and it was pointed out that it was not to be regarded as a suit for compen-sation for breach of contract, which emphasises the fact that the right is not a mere right to sue. The question was considered by the Allahabad High Court in Madho Das v. Ramji Patak I.L.R. (1894) All. 286. That decision is not under the Transfer of Property Act but under the Civil Procedure Code, the point being whether a money due by an agent or vendee to the principal or vendor is attachable in execution while the exact amount due to the principal or vendor had not been ascertained before the attachment and sale. After considering the decision in Syud Tuffuzzool Hossein Khan v. Rughoonath Pershad (1871) 14 M.I.A. 40, and also the other cases, the principle has been laid down in that case at page 293 as follows:

There can, in our opinion, be no doubt that money or a balance in the hands of an agent, which he has received from, or holds for, his principal to be applied to certain purposes can be recovered from that agent as money had and received to the use of the principal, if the agent fails to apply it, or if the agent having applied part of it, a balance remains in the hands of the agent; and the fact that when the principal brings his suit to recover such balance he may, until the agent's accounts are produced be unable to specify the particular amount of the balance remaining in his agent's hands, and due to him does not prevent such balance being a debt due to the principal.

9. This view has been applied by a Bench of our Court in Ramiah v. Rukmini Ammal (1912) 24 M.L.J. 313, and there are also other decisions which support this view. It is unnecessary to refer to all of them in detail. Reliance, however, has been placed by the learned. Advocate-General on the decision in Khetra Mohan Das v. Biswanath Bera I.L.R. (1924) Cal. 972, but that decision was not followed in the Calcutta High Court itself in Rajeswar v. Sheik Yadali : AIR1933Cal461 , and as it is opposed to the decision of our High Court, no useful purpose will be served in dealing with that decision.

10. The view taken by the Courts below regarding the assignment is correct. The result is this revision petition fails and is dismissed with costs.


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