W. Comer Petheram, C.J. and Norris, J.
1. In his plaint the plaintiff states that the first defendant and the father of the second borrowed Rs. 1,250 from the third defendant on the 2nd of Kartick 1287 at Re. 1-12 a month's interest; that they gave a mortgage bond to secure the loan; that he on the 2nd Assar 1294 bought the claim from the mortgagee for Rs. 725, and that there was due on the bond at the time the suit was brought the sum of Rs. 5,610-9, but the plaintiff claims Rs. 2,500 only, in consequence, as he says, of the defendant's inability to pay.
2. The first and second defendants plead, amongst other things, that the money was not borrowed, nor was the bond executed by the alleged borrowers, and that if it were so, the plaintiff did not pay Rs. 725 for the claim, and cannot get more than he may be found to have paid.
3. The District Judge on appeal has found that the advance was made, and the bond duly executed, but that the plaintiff paid Rs. 500 only upon the sale of the bond to him; and he has given him a decree for that amount, with interest at 12 per cent, from the date of his purchase, and expenses incidental to the purchase. He thought that what was bought by the plaintiff was an 'actionable claim' within Section 135 of the Transfer of Property Act, and that the question was concluded by the decision of a Full Bench of the Madras Court, in Nilakanta v. Krishnasami I.L.R. 13 Mad. 225.
4. The plaintiff appealed to this Court, and the case came before Prinsep and HILL, JJ., sitting as a Division Bench : they differed on the question whether what the plaintiff bought was an 'actionable claim' within the meaning of the section, and the special appeal was referred to a Bench of five Judges for decision under Section 575 of the Civil Procedure Code, and they referred it to this Full Bench.
5. Two questions of law have been argued before us, and in the view I take of the case it will he necessary, in order to decide the appeal, for me to express an opinion upon each of them.
6. The first is, whether the right to recover a loan secured by a mortgage of immoveable property is an 'actionable claim' within the provisions of Section 135 of the Transfer of Property Act; the second, whether if it is, debtors in the position of the defendants in the present case, who have not paid anything either before the suit, or pending the suit, but have on the contrary always, until the judgment of the Court of Appeal had been given against them on the point, alleged that the money was never borrowed at all, and that the bonds were forgeries, can now avail themselves of the provisions of Section 135, to decrease the amount of their liability to the plaintiff. On each point there are decisions in the Indian Courts. Those on the first point are as follows : Lala Jugdeo Sakai v. Brij Behari Lal I.L.R. 12 Cal. 505. In that case Mitter and Agnew, J.J., decided that the provisions of Section 131 of the Transfer of Property Act apply to the assignment of a mortgage. Modun Mohun Dutt v. Futtarnnnissa I.L.R. 13 Cal. 297 : Mitter and Grant, JJ., expressed the opinion, though it was unnecessary for the decision of the case, that Section 135 refers to claims for money of some kind, or the like, although the money claim may be a charge on immoveable property. Subbammal v. Venkatarama I.L.R. 10 Mad. 289: Collins, C.J., and Parker, J., held that a claim by an assignee upon a mortgage deed was within the provisions of Sections 131 and 135. Bathnammt v. Subramaniya I.L.R. 11 Mad. 56: Collins, C.J., and Ayyar, J., held that a claim on a mortgage-bond was within the provisions of Section 136, and expressed the opinion that it was certainly within Clause (d) of Section 135. Hakimunnissa v. Deonarain I.L.R. 13 AIl. 102 : Straight and Brodhurst, JJ., held that in a suit by the assignee of a mortgage security, the defendants were entitled to the benefit of Section 135. Bamachandra v. Venkatarama I.L.R. 13 Mad. 516: Ayyar and Shephard, JJ., allowed the defendant in a suit on a mortgage-bond the benefit of Section 135, These are the reported decisions on the first point to which we have been referred and they are all one way, so that it appears that until the present case no doubt has been expressed in any one of the Indian Courts that a right to recover a debt, although it is secured by a mortgage of immoveable property, is an 'actionable claim' within the meaning of Section 135 of the Transfer of Property Act; and I have no hesitation in saying that I agree in the view which has been acted upon down to the present time. The claim is to recover a sum of money which had been lent by the assignor of the plaintiff to the defendant, payment of which is secured by a mortgage : it is not an action to recover possession of the land, but to recover the money by sale of the security and other property of the debtors, if the security is not sufficient. This is a claim which can be enforced by action and in no other way.
7. Section 130 enacts that a claim which the Civil Courts recognise as affording grounds for relief is actionable, and Section 137 and its illustration which am found in the chapter headed 'transfers of actionable claims' would seem to indicate that it was the express intention of the Legislature to include debts secured by charges at all events in the provisions as to actionable claims. I think the words of the Act are so clear than it is impossible for the Court not to give effect to them by holding that debts secured by mortgage are 'actionable claims' within the meaning of the whole chapter, and that such debtors are entitled to the benefits of Section 135.
8. It may be well to note that the definition of an 'actionable claim' in the Transfer of Property Act is intentionally wider than that to be found in some other Codes. See the Anglo-Indian Code by Mr. Whitley Stokes, page 813, Volume I.
9. The second question is one on which the decisions of this Court are in conflict with those in Madras and Allahabad. The cases to which we have been referred are- Grish Chandra v. Kashisaiiri Debt I.L.R. 13 Cal. 145 in which Mitter and Grant, JJ., decided that as the debtor, the defendant, did pot pay or offer the amount he was bound by Section 135 to pay, the section did not apply, and the plaintiff, the assignee of the debt, was entitled to recover the full amount of the debt without reference to what he himself paid for it. Subbammal v. Venkatarama I.L.R. 10 Mad. 289, in which Collins, C.J., and Parker, J., followed Mitter and Grant, JJ., and held that as the defendant had not paid the assignee the amount he had himself paid for the claim, the section did not apply, and the assignee was entitled to recover the whole of the debt. Jani Begam v. Jahangir Khan I.L.R. 9 All. 476 : Straight and Tyrell, JJ., dissented from these cases and held that in all cases the assignee was prevented by Section 135 from recovering more than he had paid. Khoshdeb Biswas v. Satar Mondol I.L.R. 15 Cal. 436, in which the Chief Justice and Tottenham, J., followed Mitter and Grant, JJ., but added that in their opinion payment in the suit entitled the defendant to the benefit of Section 135. Hakimunnissa v. Deonaram I.L.R. 13 All. 102, in which Straight and Brodhurst, JJ., followed the case of Jani Begam v. Jahangir Khan I.L.R. 9 All. 476, and again held that in all cases the assignee of a debt was precluded by the provisions of Section 135 from recovering more than the amount which he had himself paid for it. They expressly dissented from the two cases in the Calcutta Court. In Nilakanta v. Krishnammi I.L.R. 13 Mad. 225, Collins, C.J., Parker, Shephard and Handley, JJ., sitting in Full Bench dissented from the cases in the Calcutta Court, and agreed with the Allahabad Court that the assignee could only recover from the debtor what he had himself paid. Rajendra Narain Bagchi v. Watson & Co. I.L.R. 18 Cal. 510, in which Prinsep and Banerjee, JJ., followed the cases of Grish Chandra v. Kashisauri I.L.R. 13 Cal. 145 and of Khosdub Biswas v. Satar Mondol I.L.R. 15 Cal. 436 and that of Subbammal v. Venkatarama I.L.R. 10 Mad. 289, and differed from that of Jani Begam v. Jahangir Khan I.L.R. 9 All. 476, but did not notice the Full Bench case of Nilakanta v. Krishnasami I.L.R. 13 Mad. 225.
10. I have never thought the point by any means clear, but after a good deal of consideration I have come to the conclusion that the decisions of this Court are right. The view of the section taken by the Madras and Allahabad Courts is that it creates an absolute bar to an action brought by the assignee for anything beyond the amount paid by him with interest and expenses in the same way in which Section 4 of the Limitation Act is a bar if the money sued for had become due more than three years before the suit, and nothing had happened to prevent the operation of the law of limitation. This Court, on the other hand, has held that the defendant may be discharged from all liability by payment before judgment of the smaller sum, but that if such payment is not made before the final judgment is given the assignee is entitled to judgment for the whole debt.
11. I think that this Court has been right in holding that unless he has fulfilled the condition imposed by the section and has paid the amount which the assignee paid, the debtor is not entitled to the benefit of the section. If it was the intention of the Legislature to provide that in no case should a decree be made in favour of the assignee of a claim for a sum larger than that which he had himself paid for it, with interest and expenses, I am unable to understand why they did not use such words as those to be found in Section 4 of the Limitation Act, words which have a well-understood meaning and as to which there could be no doubt. It appears to me that when they decided to use the language which we find in Section 135 of the Transfer of Property Act, they must have contemplated something different to the absolute bar which is created by the Limitation Act; and as in this country at the time when the Transfer of Property Act was passed, it was the right of the assignee to recover from the debtor the whole of the debt without reference to what the assignee had himself paid for it, and as the effect of the enactment in Section l35 is to take from him an existing legal right, I think that we ought to be satisfied that the conditions, under which the debtor is entitled to say that that right has been destroyed and his own debt partially extinguished, have been fulfilled by him, before we can say that he is entitled to the benefit' of the section. I think that this Court has been right in holding that nothing short of payment of the amount which the assignee paid with interest and expenses before final judgment will operate to discharge the debtor under the section. It is strongly contended that it cannot be that the assignee can obtain a decree for the whole amount unless the debtor has paid the smaller amount, because it is said that the debtor has no means of knowing what the assignee has paid for the debt, and that to deprive him, the debtor of the means of putting the purchaser to proof in an action for the debt of what he paid for it, is in fact to deprive him of the benefit of the section altogether 1 do not think that this is the case. In the case of Khoshdeb Biswas v. Satar Mondol I.L.R. 15 Cal. 436, I expressed the opinion that payment in the suit would entitle the debtor to the benefit of the section, and if I was right in that opinion, I can see no reason why, when in an action by the assignee of a debt, the question is not whether the debt was ever incurred at all, but what was the amount which was paid for it, that question should not be tried in some way which would enable the defendant to deposit the amount when found with interest and expenses in Court under Section 376 of the Civil Procedure Code before final judgment was given in the suit; and as in all cases in this country the costs of litigation are in the discretion of the Court, there is no danger of injustice being done by their falling on any one but the' party in the wrong.
12. I think that the claim in this suit is an 'actionable claim' within the meaning of the Transfer of Property Act, but that as the defendant did not pay the amount paid by the plaintiff for the claim with interest and expenses before judgment, but disputed the claim throughout, the plaintiff' is entitled to judgment, for the whole of his claim.
13. In the result I think that the appeal should be allowed and that the plaintiff should have judgment for a sum not exceeding Rs. 2,500 and costs in all Courts.
14. The decree will be drawn up in accordance with Section 88 of the Transfer of Property Act for Rs. 1,100 in addition to the amount given by the Court below, with costs in this Court with interest at 6 per cent, to date of this decree.
15. It is with much reluctance that I find myself unable to concur with my learned colleagues that a mortgage debt is an 'actionable claim' coming within Section 135 in the event of the transfer by assignment of the rights and liabilities of the mortgage on payment of a sum less than the full amount due.
16. A debt is no doubt an actionable claim and is expressly dealt with by Chapter VIII of the Transfer of Property Act which is entitled 'of transfers of actionable claims.' A. mortgage is defind by Section 58 to be the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an exiting or future debt, or the performance of an engagement which may give rise to a pecuniary liability,' and Section 8 declares that 'unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. Such incidents include, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee) but not arrears of interest accrued before the transfer.'
17. It would therefore seem that where a debt is secured by the mortgage of specific immoveable property, the transfer by sale of the right to recover the money payable carries with it the right to recover it by foreclosure or sale as set out in the mortgage bond, but in respect of interest only so much as may be due before the transfer, unless a different intention is expressed or necessarily implied,' that is unless the terms of the transfer should convey expressly or by implication all rights to recover such interest. But Chapter IV, 1 think, professes to deal exhaustively with 'mortgages of immoveable property and charges.' It describes the rights and liabilities of both mortgagor and mortgagee, and it provides a procedure for foreclosure and sale as well as for redemption and other matters relating to this subject.
18. Section 83 declares that 'at any time after the principal money has become payable, and before a suit for the redemption of the mortgaged money is barred, the mortgagor or any other person entitled to institute such suit may deposit in any Court in which he might have instituted such suit, to the account of the mortgagee, the amount remaining due on the mortgage.'
19. Section 91 and the following sections provide for a redemption of a mortgage and set out the procedure in a suit for redemption by which an account is to be taken and the money due to be determined, and it provides also that a date shall then be fixed for payment, declaring the result of payment within that time or default.
20. On the other hand, provision is also made for enforcing the rights of a mortgagee by foreclosure or sale on default of payment within the time specified in the mortgage bond, and a similar course is to be taken by the Court to determine the amount due and to fix a time for payment on default of which in a suit for foreclosure the mortgagor's right to redeem is barred and possession is given to the mortgagee while in a suit for sale the property is to he sold.
21. But it is contended that when an actionable claim, that is a mortgage debt, is sold by a mortgagee, the mortgagor is not bound to pay the entire amount due, but is 'wholly discharged' by paying a smaller sum to the buyer, being the price paid by him to the mortgagee, together with incidental expenses of that sale with interest on the price from the day that the buyer paid it, and this it is said is the effect of Section 135. Still a mortgagor would not be 'wholly discharged' if there was something still due to the mortgagee, such as interest which may have accrued before the date of transfer and not transferred expressly or by necessary implication. This is especially provided for by Section 8, which must be read with Section 135, whether a mortgage debt be or be not an actionable claim within the latter section. Section 135, however, professes wholly to discharge a debtor, and it would not do so in such a case. It is therefore difficult to understand how this section can be applied to all suits for foreclosure or sale. It may be said that it is intended wholly to discharge the mortgagor only in respect of his debt to the transferee mortgagee, and that his liabilities in respect to the original mortgagee may still exist so as to form the subject of an order under Section 86 in a suit for foreclosure or under Section 88 in a suit for sale. It seems to me that this is not the proper construction of this section, which was wholly to discharge the debtor of his dent or actionable claim, and not to discharge him only of a portion of that debt, and it would, in my opinion, be altogether inconsistent with the character of a mortgage debt and the law for foreclosure and sale that such a debt should be so divided. To do so would have the effect of entirely altering the form of the order which is to be passed in a suit for foreclosure under Section 86 or for sale under Section 88. This seems to show that the Legislature did not intend to bring a mortgage debt within the terms of Chapter VIII. The object of the Legislature by the enactment of a special chapter containing a special procedure for the recovery of money due on mortgages of immoveable property was to make a simple law dealing exhaustively with this subject and to provide once for all in one chapter of the Act, for all matters relating to the mortgages of immoveable property. To introduce other matters, such as that now under consideration, would altogether defeat this object, for it would only tend to obscure what was otherwise clearly expressed. A mortgage debt seems to me to stand on different grounds from an ordinary and unsecured debt, and I am inclined to think that Section 135 was intended to apply only to such simple debts. Another difficulty occurs to me. As I understand the law it is only by payment of a mortgage debt either out of Court or after an order for payment in a suit for foreclosure or sale or by a suit for redemption that a mortgagor can obtain a discharge so as to extinguish the security or the interest in his immoveable property which the mortgage has created in favour of another. A portion of Chapter IV of the Transfer of Property Act deals with suits for redemption. Could a mortgagor bring such a suit against the purchaser of the rights of a mortgagee and in it obtain relief by payment of a sum smaller than that actually due on the mortgage? It seems to me that Section 92 and the following sections, which deal with suits for redemption, cannot be made applicable to a suit for redemption by a mortgagor claiming relief under Section 135. The difficulty is further increased in all these matters if Section 135 is to be applied to what is termed an English mortgage. It is for these and other reasons which I need not specify that after a long and careful consideration I find myself unable to agree with my learned colleagues as regards what is said to have been the object of legislation in Chapter VIII, viz., to stop trafficking in litigation which is unfortunately so prevalent in this country. I confess that I feel, too, that this object has failed to reach an important class of cases in which no relief would be possible. Take for instance the purchase of what is familiarly termed the dena powna of a trading business or outstanding debts for a comparatively small sum. No individual debtor would be able to obtain any relief under Section 135, for he would be unable to show that his particular debt was bought for a lesser sum, though in the aggregate the amount paid by the transferee would be much less than that claimed by the transferor from his debtors. The speculator would thus be beyond the law, and the law would be defeated in a case which shows in exaggeration the evils which it is desired to avert.
22. It is also inconceivable, too, that the Legislature should have intended that the pleader of any Court should be incapable of obtaining the assignment of a mortgage of immoveable property situated within the local jurisdiction of the Court with which he is connected, though he is certainly not debarred from taking the original mortgage.
23. This, however, would be the effect of Section 136 if it be applied to a mortgage debt. It has been suggested that, as the illustration to Section 137 refers to a debenture which is a charge, and Chapter IV deals with mortgages of immoveable property and charges, there fore as a debenture is an 'actionable claim,' a mortgage is one also, and any difficulty regarding the application of Chapter IV disappears. The illustration to Section 137 is, I think, unfortunate if it be intended to include a debenture as an 'actionable claim' coming within the other sections to Chapter VIII. I cannot understand how Section 135 could be applied to a debenture, or how when the credit of a company was low, and the debentures were saleable and sold below par, the company could redeem them at any time most convenient to it by paying only the price paid for them by holders.
24. I hope that by the doubts which I have expressed regarding the present state of the law I may succeed in drawing attention to this subject so as to set it at rest.
25. Being, therefore, of opinion that this is not an 'actionable claim,' I would set aside the judgments of the lower Courts and decree the suit, as both Courts have found that the full amount claimed was due under the mortgage executed by the defendants. But as I am overruled on this part of the case, it becomes my duty to consider the second point which has been referred for the opinion of this Full Bench. This is, taking it that the mortgage debt which has been transferred to the plaintiff by purchase from the mortgagee is an 'actionable claim,' to be dealt with under Chapter VIII, are the defendants entitled to any relief under Section 135, and if so, what order should be passed to determine this?
26. We are met by conflicting judgments of this Court on the one side, and those of the Allahabad and Madras High Courts on the other, regarding the construction of Section 135 [and especially proviso (d)] of the Transfer of Property Act. On the one hand it is contended that the plaintiff can obtain only the price paid by him and incidental expenses of the sale, together with interest on the price from the day on which he paid it. On the other hand, it is contended that the defendants have lost any claim to such relief by contesting the suit, and that at any rate they are bound to pay the full amount, and can obtain relief only by paying at once the lesser sum, and that the proper decree should be for the full amount of the mortgage debt.
27. It is stated that, the defendants having denied not only the assignment but the mortgage debt, they are under Section 135 (d) deprived of the benefit of that section. As authorities for this the following cases have been cited : Grish Chandra v. Kashisauri Debi I.L.R. 13 Cal. 145, Khoshdeb Biswas v. Satar Mondol I.L.R. 15 Cal. 436, and Rathnasami v. Subramanya I.L.R. 11 Mad. 56. It may, however, be mentioned that this last case has been overruled by a Full Bench of the Madras High Court in Nilakanta v. Krishnasami I.L.R. 13 Mad. 225, and in support of this view there is also Jani Begam v. Jahangir Khan I.L.R. 9 All. 476. I find that I am in some measure committed as one of the Judges who decided Rajendra Narain Bagchi v. Watson & Co. I.L.R. 18 Cal. 510.
28. On full consideration I am of opinion that the view taken by the Full Bench of the Madras High Court and by a Division Bench of the Allahabad High Court in the cases last mentioned is correct, and that Section 135 (d) refers only to the state of things at the time of the transfer of an 'actionable claim.' It is not the conduct of the defendant debtor which would deprive him of relief under Section 135. The object contemplated by the Legislature seems to have been to discourage speculative purchases in matters which were uncertain and might be made the subject of litigation, and to do so it enabled a debtor to obtain relief by putting such a person in the same position as he would have been before the purchase of the actionable claim and to deprive him of any advantage from it. Where the amount of the debt is certain either by an order of the Court affirming the claim, or made clear by evidence, and is ready for judgment, a transfer is not open to such an objection, and therefore is not in my view of the law discountenanced. It is no longer a speculative claim and can be properly made the subject of a conveyance to a third party.
29. I agree with Collins, C.J., in the Full Bench case of Nilakanta v. Krishnasami I.L.R. 13 Mad. 225, that 'a defendant has a right to put the purchaser of an actionable claim sued on to the proof of his claim, and also to contend that at all events he cannot recover more than the sum he purchased it for, together with interest and expenses. The debtor is to be wholly discharged by paying to the buyer the price given for such claim and incidental expenses of the sale with interest. If the debtor is wholly discharged in law by payment of a certain sum, it seems to follow that the creditor is only entitled to recover that sum,' or as Shephard, J., puts it in the same case, when a man is said to be discharged from liability by payment of a certain sum, it is ordinarily meant that the liability is limited to that sum, and that no greater sum can be recovered by suit. The sum by payment of which a debtor is discharged is ordinarily the sum for which his creditor can obtain judgment. How can it possibly be said that the claim of the assignee is less meritorious because the debtor finds it expedient to satisfy it without dispute? The fact that the debtor admits the claim would rather go to show that the transaction between the assignor and assignee was not of a speculative character. I have referred to the case of Rajendra Narain Bagchi v. Watson & Co. I.L.R. 18 Cal. 510 to which I was a party. The case of the Madras High Court just referred to was not cited to us, and on further consideration I am of opinion that we went too far, and that the construction put by the Madras High Court on Section 135, Clause (d) is correct, that is, that it refers to a state of things existing at the time of the assignment and not at the time of the enforcement of payment of the debt.
30. For these reasons I am of opinion that, taking the subject-matter of this suit to be an 'actionable claim,' the plaintiff is not entitled to recover more than the sum paid by her to the mortgagee with incidental expenses of the sale and interest from the date of payment of the price to the mortgagor, and that the suit should be remanded to ascertain the amount so due. The amount being determined, an order should be passed for payment in the terms of Section 88 of the Transfer of Property Act. By expressing my opinion on this second point and' stating the form of the order which should be passed if that view of the law be accepted, it must not be supposed that I hold that a mortgage debt is an actionable claim within Chapter VIII.
31. In this case the plaintiff sued upon a bond, executed by the defendant No. 1 and the father of defendant No. 2, in favour of defendant No. 3, who had sold it to him for a consideration of Rs. 725.
32. He claimed Rs. 2,500 which, he said, were due to him, according to the terms of the bond.
33. Amongst the many defences raised, there was one relating to the Transfer of Property Act. It was stated, though without referring to Section 135 of that Act, that the plaintiff was not entitled to anything more than the amount he had actually paid upon the bond. That defence prevailed in both the lower Courts; but at the hearing of the second appeal before a Divisional Bench of this Court, the learned Judges differed in opinion,-one holding that the transferee's mortgage was subject to the limitation enacted by Section 135 of the Transfer of Property Act, the other holding that Chapter 'VIII of that Act had no application to the transaction at all. In this conflict of opinion between the learned Judges an appeal was preferred to a Divisional Bench of this Court, and the Judges of it have referred the. matter for decision to this Full Bench.
34. Under Section 130 of the Transfer of Property Act an 'actionable claim' is defined to be 'a claim which the Civil Courts recognise as affording grounds for relief is actionable, whether a suit for its enforcement is, or is not, actually pending, or likely to become necessary,' or, in other words, a claim which will support an action. This use of the word 'actionable' is referred to by Dr. Murray in his excellent dictionary, and he supports it by two extracts from standard law publications. In my opinion this definition governs Chapter VIII, and every section of this chapter must be interpreted subject to, and in accordance with, it, and if this be so, it is clear that no claim which has not so far ripened as to give a cause of action at the time of transfer is an 'actionable claim.' For example, I think a claim based on a void agreement, or for a sum of money not due, is not actionable. In neither case would the claim afford any ground for relief in our Courts.
35. Sections 131 to 134 declare the procedure necessary to be followed in transferring a special class of actionable claims, namely, debts and beneficial interest in moveable property.
36. In Section 135 we find a second time the words 'actionable claim' in Chapter VIII. They again appear in Section 136, which declares the incapacity of officers connected with any Court of Justice to buy any 'actionable claim' falling under the jurisdiction of the Court in which he exercises his functions.
37. A claim may generally be defined to be the assertion and demand of recognition of an alleged right or title. It would there fore appear that the definition of '' actionable claim' in Section 130 recognises all claims in regard to property moveable or immoveable which would be recognised in our Courts, and on which the claimant could obtain relief. Section 136 leads to the same conclusion. The obvious evil to be met with in that section is the evil arising from Judges or officers of a Court buying up claims with which they may come into contact in their official capacity. This evil does not depend upon the nature of the claim, or on the subject-matter of it. I can see no difference between the impropriety of a Judge obtaining the assignment of a bond for a thousand rupees which could then form the basis of a claim in his Court, and buying up a claim to immoveable property of the same value, within his jurisdiction. I am, therefore, unable to perceive any ambiguity in the definition of Section 130, and I think that the term 'actionable claim' must at least cover every claim for which an action would lie in our Courts. This definition clearly covers the present case where the debt had fallen due and an action for its recovery could have been brought before assignment.
38. It is apparent from Section 6 of the Transfer of Property Act, when read with Section 8, that actionable claims constitute property, and that subject to the limitation laid down by Section 6, and under the provisions of Section 8 and Chapter VIII, all actionable claims are transferable. Section 135 declares that when an actionable claim is sold, the person against whom it is made is wholly discharged by paying to the buyer the price and incidental expenses of the sale, with interest on the price from the day that the buyer paid it. It has been argued at the Bar that the right of the obligee is much higher. It has been said that the buyer is not entitled to get a decree for any amount larger than the price, incidental expenses, and interest. I am unable to acquiesce in this argument. The right of the plaintiff to recover is one tiling, the right of the obligee to discharge the claim by a voluntary payment is another. Both the persons possessing the rights and the rights themselves are distinct and ordinarily bear no relation to each other.
39. In the same section four cases are stated to which the rule laid down in the first paragraph of Section 135 does not apply; and the obligee is subject to the terms of the original obligation. It has been argued that in accordance with the decision in the case of Rajendra Narain Bagchi v. Watson & Co. and other decisions of this Court, Clause (d) of Section 135 does not apply to the case in which a debtor denies the existence of the claim altogether, or where the purchaser of the claim has obtained judgment for it before payment of the amount due under this section is made or tendered. These decisions have, however, been dissented from by the High Courts of Allahabad and Madras. 1 concur in the view adopted by these Courts. I think that Clause (d), Section 135, refers, as the language implies, to circumstances arising before the transfer of the actionable claim. Admittedly Clauses (a), (b) and (c) refer to circumstances corning into existence at the time of transfer, and Clause (d) reads as if the conditions mentioned in it had happened before the transfer. Moreover in his case no judgment has been given for the claim. The conclusion at which 1 have arrived is that the claim in this suit is an actionable claim, that the plaintiff is subject to the limitation provided in the first part of s 135, and cannot claim the benefit of Clause (d). At the same time ( am unable to support the decree' of the lower Court which only gives the plaintiff the purchase-money, etc., leaving him to realise that amount as best ho can by process of execution. I would set it aside and instead direct that a decree be given that if the defendant pays, within a time fixed by the Court, the sums mentioned in Section 135 of the Transfer of Property Act, the claim shall be discharged; if not, that the usual mortgage decree be given for such portion of the claim as may be found due and has not been abandoned.
40. I agree with the Chief Justice in the conclusion he has arrived at upon both the questions that have been discussed before us.
41. As to the question whether the claim in this case is an 'actionable claim' within the meaning of Section 135 of the Transfer of Property Act, 1 am of opinion that it is. A claim like this is really one to recover money, and notwithstanding that it may be enforced by sale of the properties mortgaged as collateral security, it is, I think, nevertheless an 'actionable claim' as defined by Section 130. The definition seems to me to be wide enough to comprehend a claim to recover a debt secured by a mortgage of immoveable property; and this would appear to be clear from paragraph 5 of Section 8 of the Act where, with reference to what passes under a transfer of property, the Legislature has used these words: 'and where the property is a debtor other actionable claim the securities therefor,' etc., etc. All the reported cases decided by the different High Courts which have been brought to our notice have taken but one and the same view, and the question therefore seems to me to be concluded by authority.
42. As regards the other question raised in this case, and which has been specially referred to the Full Bench, I am disposed to agree with the view that has 'been adopted in this Court in the cases referred to by the Chief Justice. It seems to me, reading the several parts of Section 135 together, that the payment contemplated in the first paragraph of that section is a payment at some time or other before judgment 'affirming the claim,' and before, 'the claim has been made clear by evidence and is ready for judgment,' as mentioned in Clause (d) of the section. 1 do not think that the Legislature could have intended that, where the defendant contests the truth of the assignee's claim, and does not pay or offer to pay before judgment the amount of the consideration that the assignee paid, he, the defendant, may yet get a discharge by paying simply the consideration for the assignment and the costs. And I do not quite see why the Clause (d) of Section 135 should be held to apply only to a case where the assignment is made after decree has been pronounced in favour of the original holder of the bond. If the Legislature had so intended, nothing could have been easier than for them to adopt the same phraseology in Clause (d) which they followed in the preceding clauses of Section 135, viz., they might have said, 'When it is made subsequent to the judgment of a competent Court affirming the claim,' etc., etc.