SUBRAMANIAN PATTAR Vs. KIRADADASAN ALIAS THIRUMALAPAD AVERGAL

JUDGEMENT

(1.) The plaintiff is the appellant before us in this second appeal. He represents the Karaswan in as ordinary Kuri chit which collapsed in 1905. The defendant is the owner of the legal right and he is subject to a legal liability. He is the transferee of the interest of the holders of two non-benefited half tickets in the Kuri and he is subject to the liabilities of a benefited ticket in the said Kuri. The plaintiff brought this suit for recovering Rs. 2,700 due by defendant as holder of the benefited ticket with interest thereon. The defendant pleads that he was entitled to set-off against this Rs. 2,700 what was due to him by the Karaswan as owner of the non- benefited two half-tickets, amounting to Rs. 2,400 and interest thereon.

(2.) The lower Courts allowed such set-off and gave a decree to the plaintiff for the balance. The plaintiff contends in second appeal that the defendant must recover the Rs. 2,400 due to him from the Karaswan by a suit against the Karaswan as he cannot set it off against the plaintiff, who has purchased the Karaswau s rights in the Rs. 2,700, due by defendant to the Karaswan, such set-off not being legally claimable by defendant. The lower Courts in allowing the set-off gave three reasons for their decision, namely, (a) that both the debts arose out of the same transaction, (6) that under Section 132 of the Transfer of Property, Act the plaintiff, who is the transferee of an actionable claim takes it subject to all the liabilities and equities to which the transferor was subject in respect thereto at the date of transfer and (c) the defendant s claim against plaintiff s transferor was not baired by limitation as contended by plaintiff (defendant put in his written statement in 1909 claiming such set-off, the Rs. 2,400 having become due to him in 1905).

(3.) The learned Vakil for the appellant (plaintiff) contests the conclusions of the lower Courts on all the above three questions. As regards the first question, it seems to us that the case of Panchena Manchu Nayar v. Gadinhare Kumaranchath Padmanabhan Nayar 20 M. 68 clearly decides that an ordinary Malabar Kuri is not a company or partnership composed of the Karaswan and the subscribers, and that no general rights and obligations and no mutual rights and duties are created so as to include all of them as one body. The contracting parties in such a Kuri are the Karaswan on the one side and each of the subscribers on the other side and there are as many separate contracts as there are subscribers. The transaction between the Karaswan and the holder of any particular ticket is quite a different transaction from that between the Karasawan and the holder of any other ticket. The opinion of the lower Courts that the debt sought to be set off by the defendant arose out of the same transaction as the debt claimed by plaintiff is, therefore, unsound.