MANI DEVASIA Vs. VARKET SCARIA

JUDGEMENT

(1.) FOURTH defendant is the appellant. The decree holder and his assignee jointly filed an application for execution of the decree. The 4th defendant contended that the assignment was benami for the 5th defendant and therefore execution of the decree should not be allowed. A further ground of objection taken by him was that the assignment of the decree, as stated in the execution application itself, being by an oral transaction should not be recognised by the executing court.

(2.) BOTH the courts below found against the appellant in the contention that the assignment was benami for the 5th defendant. Nothing was made out at the hearing of this Second Appeal to show that the said finding was perverse or that it was unsupported by the evidence in the case. The deposition given in the matter by the assignee was read out in extenso by the learned counsel for the appellant. It only shows that the assignee has taken the assignment in order to help the 5th defendant who is a poor relation of his, the assignee himself being a wealthy man worth about Rs. 18 lakhs. The amount of the decree in this case is about Rs. 1700/- only. Where a decree for money is against several persons jointly, it is open to the decree-holder to execute the entire decree against any one of the judgment-debtors or his properties, leaving that judgment debtor to work out his right of contributions against the co-judgment-debtors by fresh suit or suits. In such cases, nothing stands in the way of a relation of a judgment-debtor taking an assignment of the decree in order to help him by averting the execution proceedings against the particular judgment-debtor and directing the same primarily against the other judgment-debtors in the case, so that the one in whom he is interested would not have to pay more than his share of the debt. Such an assignment of the decree cannot be dubbed as a benami transaction. It can only be real and genuine. The contention of the appellant that the transaction was benami has therefore been rightly repelled by both the courts below.

(3.) AS per the law of transfer prevalent in the Travancore area before the introduction of the Transfer of Property Act there in 1952, oral assignments even of immovable property was held to be valid. It is also conceded by the learned counsel for the appellant that the oral assignment of the decree referred to in the execution petition in this case, apart from the provisions of Order XXI, R. 16 would be valid under the then law.