KARUNAKARAN NAIR Vs. SREEVARDHINI CHIT FUND

JUDGEMENT

(1.) THE only question that arises in this Second Appeal is whether without executing an instrument of transfer the claim of a foreman against a prized subscriber can be transferred. THE defendant had contended that such an instrument of transfer is absolutely necessary. Both the trial court and the lower appellate court have negatived the contention. THErefore the defendant has come up in Second Appeal to this Court.

(2.) IT will be useful in this context to refer to the relevant portion in the plaint where the 2nd plaintiff's right to get the amount is pointed out. Par a 5 in the plaint may be extracted: The prayer portion in the plaint also has some relevance here. IT reads: The learned Munsiff had pointed out that in the plaint itself the 1st plaintiff had stated that he had assigned his rights to the 2nd plaintiff. Therefore the assignment in favour of the 2nd plaintiff is valid and proper. The learned Subordinate Judge, before whom the appeal against the trial court's decree had come up, had stated that it was contended before him that in any event there should be a formal instrument of transfer in view of S. 130 of the Transfer of Property Act as the transfer is of an actionable claim and such contention would be unsustainable as it is well established that no particular form of words is necessary in order to effect assignment if the intention is clear. He would further state that from the averments in the plaint an equitable assignment can well be inferred. IT cannot be disputed that amounts were payable by the 1st plaintiff to the 2nd plaintiff and that it is in lieu of the same that the assignment had been made.

(3.) IN this connection what Justice Raman Nayar, as he then was, said in Palai Central Bank's case (1962 KLJ. 1401) would also be relevant. His Lordship said that the instrument in writing contemplated by s. 130 of the Transfer of Property Act need not be in any particular form and need not employ any particular words or any set formula. It is not even necessary that there should be a document which is the repository of the whole transaction. But all that is required is that there should be something in writing from which the intention to transfer the actionable claim can be gathered. But a mere statement that a deposit receipt is to be held as security and that the money, when it becomes due is to be applied in a particular way, or to say that a particular sum in deposit is earmarked by way of security and that if a loan is not repaid in time it may be repaid from out of the deposit when the deposit becomes payable, would not manifest an intention to transfer the deposit itself. That the statements in the plaint manifest an intention to transfer the claim from the 1st plaintiff to the 2nd plaintiff is clear. But then, as Mr. Poti pointed out, there is no document of transfer and there is no document written in a stamp paper of appropriate value. I certainly take note of a number of decisions where it has been held that an instrument in writing by which the actionable claim is transferred must be an instrument of transfer and there must be words of transfer in such instrument. It has been held that a mere direction for payment of money to a certain person would not amount to assignment of money to that person