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Seetharama Ayyar and anr. Vs. Narayanaswami Pillai and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in47Ind.Cas.749
AppellantSeetharama Ayyar and anr.
RespondentNarayanaswami Pillai and anr.
Cases ReferredShyam Kumari v. Rameswar Singh
Excerpt:
transfer of property act (iv of 1882), section 130 - 'actionable claim,' assignment of--assignment effected by entry in accounts, validity of -'instrument in writing,' meaning of--novation, absence of, whether material--contract act (ix of 1872), section 62, scope of. - - it is well established law that assignment of a chose in action does riot require any particular form of conveyance or words of transfer. the debtor, it is well established, cannot transfer his liability without the consent of his creditor......that arises, is whether there was such an assignment as is contemplated by section iso of the transfer of property act. there is no question but that the sum of bs. 600 was in fact due from the 3rd defendant's husband to defendants nos. 1 and 2. section 130(1), transfer of property act says 'the transfer of an actionable claim shall be effected only by the execution of an instrument in writing signed by the transferor or his duly authorised agent and shall be complete and effectual upon the execution of such instrument and thereupon all the rights and remedies of the transferor, whether by way of damages or otherwise, shall vest in the transferee, whether such notice of the transfer as is hereinafter provided be given or not.' the instrument in writing which is put forward as an.....
Judgment:

1. There was a settlement of accounts between the plaintiff and the guardians of the defendants Nos. 1 and 2 and in that settlement a earn of Rs. 600 due from one Sambamoortbia Pillaij husband of the 3rd defendant, is alleged to have been assigned to the plaintiff by the guardians of defendants Nos. 1 and 2. The first question that arises, is whether there was such an assignment as is Contemplated by section ISO of the Transfer of Property Act. There is no question but that the sum of Bs. 600 was in fact due from the 3rd defendant's husband to defendants Nos. 1 and 2. Section 130(1), Transfer of Property Act says 'The transfer of an actionable claim shall be effected only by the execution of an instrument in writing signed by the transferor or his duly authorised agent and shall be complete and effectual upon the execution of such instrument and thereupon all the rights and remedies of the transferor, whether by way of damages or otherwise, shall vest in the transferee, whether such notice of the transfer as is hereinafter provided be given or not.' The instrument in writing which is put forward as an assignment in .this case is in these words By way of direction given to receive the principal of Bs. 600 and interest due by Kathoor Sambamoorathia Pillai Rs. 600.'It is an entry signed by the guardians of defendants Nos. 1 and 2 in a statement of accounts, and it is argued that this is not an instrument in writing within the meaning of Section 130, Transfer of Property Act. The learned Pleader for the 1st respondent has not cited to us any authority in support of the contention. The words 'instrument in writing' do not seem to us to mean a document couched in technical language or in any particular form. AH that is apparently intended is that the transfer should be made in-writing. It is well established law that assignment of a chose in action does riot require any particular form of conveyance or words of transfer. It is sufficient if the intention of the creditor to transfer the debt due to him to the transferee, can be gathered from the writing. The fact that the assignment is made in a statement of accounts by way of an entry, would not make any difference and, in the absence of authority, we are not prepared to' uphold the contention of the Pleader for the 1st respondent on this point. There being an assignment within the meaning of Section 130, Transfer of Property Act, the debt vested in the plaintiff from the the date of the assignment and be .would, therefore, be entitled to sue for it. The section itself expressly says that all the rights and remedies of the transferor shall vest in the transferee even without any notice of the transfer being given to the debtor though, if no notice has been given and the debtor pays the debt to his original creditor, he will be absolved from liability to the transferee of the debt. This is made clear in a decision of this Court in Gopalakrishna v. Gopalakrishna 4 Ind. Cas. 420. It was also ruled by a Full Bench of this Court in Muthukrishna Aiyar v. Vera Raghava Aiyar 2 Ind. Cas 316: (1913) M.W.N. 839 that 'the rights of the transferor being vested in the transferee by the express words of the section, the transferee is the only party entitled to sue'. In laying down this proposition, the learned Judge followed the ruling of the Privy Council in Shyam Kumari v. Rameswar Singh 31 I.A. 176. We cannot, therefore, agree with the lower Appellate Court in holding that defendants Nos. 1 and 2 are solely entitled to sue the husband of the 3rd defendant for the amount due to them; on the contrary they have no interest on which they can sue.

2. The Subordinate Judge argues that, as there was no novation of the contract in the case inasmuch as the 3rd defendant's husband was not a party to the arrangement between the plaintiffs and the guardians of the defendants Nos. 1 and 2, there is no substitution of the original contract by any new contract. But Section 62 of the Indian Contract Act which deals with the effect of novation, is a general provision of law relating to substitution of the contract by another. To such a substitution, all the persons concerned must be parties. But Section 180, Transfer of Property Act, providing 'for transfer of claims is a specific provision which cannot be affected by the general rule relating., to novation of contracts as enacted in Section 62, Indian Contract Act.

3. Section 62, Indian Contract Act, covers oases in which the liability of a debtor to pay to his original creditor is extinguished because of a new contract by which he has made himself liable to a third person. But. Section 130, Transfer of Property Act, provides for transfer of choses in action by the person to whom the amount is due to a third person. It does not deal with cases of transfer of the liability of a debtor to somebody else. The debtor, it is well established, cannot transfer his liability without the consent of his creditor. 'We are, therefore, of opinion that the Subordinate Judge's judgment is wrong and liable to be set aside as it proceeds upon an erroneous view of the law.

4. We set aside the judgment of the Subordinate Judge and restore the decree of the District Munsif with costs here and in the Court below.


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