Lancelot Sanderson, C.J.
1. This is an appeal from a judgment of the learned Subordinate Judge, First Court, Burdwan in reference to an application under Section 47 and Order XXI, Rule 2 of the Code of Civil Procedure by the judgment-debtor, Phanindra Nath Roy. It appears that one Trailokya Nath Banerjee had obtained a decree against the judgment-debtor, and Bhola Dassi Debi, who is one of his daughters, desired to execute the decree and the judgment-debtor objected that she had no title to execute the decree and further argued that the amount of the decree had been paid with the exception of a small sum of about Rs. 50.
2. The main question in the appeal, namely, whether Bhola Dassi Debi was competent to execute the decree, depends upon a deed of gift which was executed by her father on the 12th Magh 1325 B.S. The learned Subordinate Judge held, upon the construction of this deed, that the debt due from the judgment-debtor under the decree was assigned by the donor to his daughter and he consequently decided that point against the judgment-debtor, who is the appellant in this Court.
3. That deed after referring to the fact that the donor had made two separate deeds of gift in favour of eldest and his youngest daughters provides as follows:--'I being highly satisfied with your deep regard and nursing and service for me, give unto you my second daughter, of my free will, the under-mentioned properties, worth Rs. 399, namely, the remaining properties described in Schedule (ka) below, cultivated in nij jote and the money-lending business etc., mentioned in Schedule (kha) below. You being vested in my rights from this day, do continue to hold and enjoy the properties with great felicity, either in nij jot or by letting them out to tenants down to your heirs with power to alienate by gift or sale, etc., and getting your name registered as owner in respect of the rent-free properties and by payment of cesses, etc. To this neither I nor any body else shall be competent to raise any objection. From this day you shall be competent to realise from the debtors under notes of hand or bonds etcetra the principal with interest either amicably or by law suit '.
4. The Schedule (ka) dealt with the immoveable properties setting out the areas of the respective properties; then the total which amounted to 12 bighas 9 1/2 cattahs. Then appear the words 'cultivated in nij jote--value Rs. 299' It is common ground that the words--'cultivated in nij jote--value Rs. 299' were interpolated in this deed, after the remainder of it was writte by or with the authority of the donor. Then Schedule (kha) is as follows:
Amounts due from various persons on account of money-lending business:-- out of the same Rs. 100 due from Netai Baishnab under a mortgage bond.' Again, it is common ground that the words 'out of the same Rs. 100 due from Netai Baishnab under a mortgage-bond,' were interpolated by or with the authority of the donor, after the remainder was written; and the last clause in the schedule is as follows:
This deed of gift is executed in respect of Rs. 399 being the value of the properties of Schedule (ka) and the dues from debtor mentioned in Schedule (kha).
5. On the one hand, it has been argued that the cords in the body of the deed are sufficient to transfer all the debts which were owing in respect of the money lending business. On the other hand, it has been argued that the words which are to be found in Schedule limit the gift to the one debt specified in the Schedule, namely, the one hundred rupees due from Netai Baisnnab Under a mortgage-bond.
6. On behalf of the respondent it has been argued that the two passages, which I have mentioned as being interpolated, were inserted in the deed for the purpose of ascertaining and specifying the stamp-duty which was payable in respect of this deed. I am not prepared to accept the argument that the natural and obvious meaning of the words in the deed is not to be given to them, merely because it is suggested that the words have been inserted in the deeds for the purpose of ascertaining and specifying the stamp-duty which was to be paid. If that were the object of inserting the words in the deed, in my judgment, it ought to have been so stated. Further in this particular case there is an additional reason why that argument should not be adopted, because I find that in the body of the deed the value of all the properties transferred, is stated to be Rs. 399; and in the last clause of Schedule (kha) it is again stated that the deed of gift was executed in respect of Rs. 399 being the value of the properties mentioned in both the Schedules. Consequently, in my judgment, that argument; in this case at all events, cannot be adopted.
7. The words which are to be found at the end of the last sentence but one in the deed of gift, 'From this day you shall be competent' to realise from the debtors under notes of hand or bonds, etcetra, the principal with interest,' in my judgment obviously refer to the debts which may be owing in respect of the money-lending business, and in respect of the money-lending business only, and that money-lending business, no doubt, is referred to in the body of the deed; but it is referred to in this way; the money-lending business, etc., mentioned in Schedule (kha). So that in order to ascertain what the donor intended to transfer, it is necessary to refer to the Schedule.
8. On reference to the Schedule, in my judgment, the natural and obvious meaning of the words is, that the donor intended to make a gift of the one particular debt, specified therein, namely, the debt due from Netai Baishnab which he intended to transfer to his daughter, the donee. The words 'out of the same Rs. 100 due from Netai Baishnab under a mortgage-bond' in my judgment, having regard to the passage which preceded these words, must mean that out of the amounts due from various persons on account of money-lending business the donor intended to give the debt which was due from Netai Baishnab, namely, the sum of Rs. 100. In my judgment that is the obvious meaning of those words. The donor intended to limit his gift to that particular debt. I am confirmed in this construction by the sentence which follows; 'and the dues from debtors mentioned in Schedule (kha).' The learned Vakil at our request referred to the original deed and found that the Bengali word for 'debtor' was in the singular, although it was suggested that perhaps it might be used sometimes in the singular and sometimes in the plural. But when we refer to the last Sentence but one in the body of the deed there we find the word 'debtors' and the Bengali word in the original deed undoubtedly was in the plural, so that the donor, in my judgment, intended to confine his gift in respect of the debts to the particular one specified in the Schedule.
9. With great respect to the learned Subordinate Judge, I am unable to accept the construction which has been put upon the deed. In my judgment the debt due from the judgment-debtor was not included in the deed. That is sufficient for the disposal of this appeal; but having regard to the fact that the learned Subordinate Judge did deal with the second point I think it desirable to refer to one matter with respect to the second point. That arises in this way. It was agreed by both parties that Trailokya Nath Banerjee had in fact realised Rs. 100 on this decree after the date of the deed. In my judgment that does not carry the matter much further, because it is quite possible that the decree being in his name he might have realised the amount and intended that it should be paid to his daughter. It is con istent with that view, or with the view that he realised the debt on his own behalf.
10. Then it was contended on behalf of the appellant that the further sum of Rs. 100 was paid and that a man named Narayan Chandra Chakravarty, who was the son-in-law of the donor had given a receipt for that sum of Rs. 100 on the 16th Magh 1326 B.S. and the learned Judge came to the conclusion that that receipt of the 16th Magh, to quote his own words, is 'evidently a collusive document and I have not the least doubt that t was granted by him without any payment, with a view to put forward a claim to the debts of Trailokya on behalf of his wife Rajlakhi. The letter marked Exhibit C, which is in Narayan's own handwriting, conclusively shows that he was not at Shatinandi on the day on which it purports to have been granted, viz., the 16th Magh 1326.' On looking at that letter of the 18th Magh, with great respect to the learned Judge, I do not understand how that conclusively shows that Narayan could not have been at Shatinandi on the 16th Magh. The letter is dated the 18th Magh and was written from Kamarpara, which we are informed is about five miles from Shatinandi. It does not seem to me impossible that Narayan, having been at Shatinandi on the 16th Magh, could have been at Kamarpara on the 18th Magh which was only five miles a way; nor is there anything in that letter, which, as far as I can see, is inconsistent with his having been at Shatinandi two days previously.
11. It is not necessary to decide, and I do not decide, the question whether the Rs. 100 referred to in the receipt of 16th Magh 1326 was, in fact, paid or not, but I think it right, having regard to the arguments, which have been addressed to us, to mention this particular matter.
12. On the ground, with which I dealt in the first instance, in my judgment, the appeal should be allowed and the judgment of the learned Subordinate Judge set aside.
13. The objection on the first ground mentioned in the Subordinate Judge's order is allowed and the execution proceedings Set aside.
14. The appelant s entitled to his costs in this Court and in the Court of the Subordinate Judge. We assess the hearing fee in this appeal at one gold mohur.
15. The Rule is discharged without costs.
16. I agree.