RAMASAMI PILLAI Vs. MUTHU CHETTI

JUDGEMENT

(1.) There is evidence to support the Subordinate Judge's finding that Rs. 160 had been paid to the fifth defendant by the third defendant and we accept that finding.

(2.) The question is raised whether exhibit A constitutes and assignment of the right to recover the subscriptions received by the fifth defendant.

(3.) The instrument hypothecates a debt, and on this instrument the hypothecatee has an interest sufficient to give him a right to sue. In Muthu Vijia Ragunatha Ramachandra Vacha Mahali Thurai V/s. Venkatachalam Chetti (1897) I.L.R. 20 Mad. 35, the sub-mortgagee was held entitled to sue the original mortgagor. Isri Prosad V/s. Rai Gunga Prosad Singh Bahadur (1910) 14 C.W.N. 165, and Ardesir Bejonji Surti V/s. Syed Sirdar Ali Khan (1909) I.L.R. 33 Bom. 610, are authorities for the position that the-holder of a charge on a debt due to his debtor by way of security for his own loan, is a transferee of an actionable claim, and entitled to recover the debt from the transferor's debtor. In Durham Brothers V/s. Bobertson (1898) 1 Q.B. 765 at p. 769, Chitty, LJ., observes "a mere charge on a fund or debt operates as a partial equitable- assignment. As is well known, an ordinary debtor chose in action before the Judicature Act was not assignable so as to pass the right of action but it was assignable so as to pass the right to sue in equity. In a suit in equity the assignee of a debt even when the assignment was absolute on the face of it had to make the assignor, the original creditor, a party, in order, primarily, to bind him and prevent his suing at law, and also to allow him to dispute the assignment if he thought fit. This was a fortiori the-case where the assignment was by way of security, or by way of charge only, because the assignor had a right to redeem." Section 134 of the Transfer of Property Act shows that the mortgagee is a transferee and entitled to sue in his own name for the recovery of the original debt. Even though the plaintiff as charge may not be entitled to the whole debt assigned by way of security, still as the original creditor is a party to the suit, there can be no objection to his recovering.