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Dharam Chand Boid and anr. Vs. Mouji Shahu and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in16Ind.Cas.440
AppellantDharam Chand Boid and anr.
RespondentMouji Shahu and ors.
Cases ReferredJadu Nath v. Rup Lal
Excerpt:
assignment of debt - partnership business owned by two persons--one executing deed of release, not assignment, in favour of third party--right of suit of new members of firm--transfer of property act (iv of 1882), section 130. - .....plaintiffs was due by the first defendant, mouji shahu, to a partnership, whereof champa lal and hulas chand were members. on the 11th april 1911, champa lal executed a deed of release whereby he gave up his claim to the business and declared that thenceforth the partnership would be conducted by hazari mal and dharam chand, the uncle and father, respectively, of hulas. it is on the strength of this instrument that dharam chand and hazari mal seek to recover the sum due from the defendant. in our opinion, the claim can not be sustained. there was no assignment of the interest of champa lal in favour of the plaintiffs. the parties in fact tried to effect by a release what could be legally attained only by an assignment properly executed. it is well settled that title cannot pass by.....
Judgment:

1. We are invited in this Rule to set aside the decree in a suit for money dismissed by a Court of Small Causes. The sum claimed by the plaintiffs was due by the first defendant, Mouji Shahu, to a partnership, whereof Champa Lal and Hulas Chand were members. On the 11th April 1911, Champa Lal executed a deed of release whereby he gave up his claim to the business and declared that thenceforth the partnership would be conducted by Hazari Mal and Dharam Chand, the uncle and father, respectively, of Hulas. It is on the strength of this instrument that Dharam Chand and Hazari Mal seek to recover the sum due from the defendant. In our opinion, the claim can not be sustained. There was no assignment of the interest of Champa Lal in favour of the plaintiffs. The parties in fact tried to effect by a release what could be legally attained only by an assignment properly executed. It is well settled that title cannot pass by admission or relinquishment where the statute requires a deed of transfer. Jadu Nath v. Rup Lal 33 C. 967 at p. 983 : 4 C.L.J. 22 : 10 C.W.N. 650. We are, therefore, of opinion that no title has vested in the plaintiffs, under Section 130 of the Transfer of Property Act and they are not entitled to maintain this suit. The Rule is discharged with costs. We assess the hearing fee at one gold mohur.


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