DORAISWAMI MUDALIAR Vs. MDORAISWAMI IYENGAR

JUDGEMENT

(1.) This facts of this second appeal may be briefly stated. The 2nd defendant is a contractor who entered into a building contract in respect of the Vellore Municipal Hospital Works with the P. W. Department. By September 1914, a sum of Rs. 2,156-8-1 was due to him. At that time he owed Rs. 1,600 to the 3 defendant. When the 3 defendant demanded the payment of his debts, he executed certain letters intending (I assume this in favour of 3 defendant) to transfer Rs. 1,600 out of the amount due to him from the P. W. D. In December 1914, he owed Rs. 6,750 to the plaintiffs and intending to transfer the whole of the said amount, he executed similar letters. The documents that came into existence in September and December respectively may be shown in a tabular form as follows:

(2.) From the above table, it is seen that, on each occasion, the scheme was the same, consisting of (1) a letter from assignor to assignee as an instrument of transfer, (2) a letter from assignor to Executive Engineer being the notice intended by Section 130 of the Transfer of Property Act. The letter of transfer to the 3 defendant though referred to in Ex. III is not forthcoming. It is admitted to be unstamped (D. W. No. 1) and no secondary evidence can be given of its contents [Raja of Bobbili V/s. Inuganti China Sitaramasami Garu 23 M. 49 : 4 C.W.N. 117 : 26 I.A. 262 : 7 Sar.P.C.J. 597 : 8 Ind. Dec. (N.S.) 428 (P.C.).]. In the written statement of 3 defendant, it was alleged (paras. 3 and 5), "When the 2nd defendant was demanded payment, he gave this defendant a letter of authority asking him to draw Rs. 1,600 from the amount due to him for the Pentland Hospital Works and also he sent a letter to the Executive Engineer, North Arcot, asking him to pay the said amount to this defendant. This was on or about the 22 September, 19l4. The alleged assignment referred to in para. 4 (plaint) is a fraud and not sustainable in law when the 2nd defendant had already given a letter of assignment to this defendant to draw the amount, referred to in para. 3 of this statement," It is, therefore, clear, that the only assignment to the 3 defendant pleaded by him is the letter addressed to him, of which no secondary evidence can be given. As the assignment to 3rd defendant cannot be proved, it follows that there is no assignment in his favour and the appeal must fail on this ground. Mr. Anantakrishna Iyer contends that, apart from the assignment intended by the missing letter, Ex. 1 only is enough to prove an assignment. In the first place, this is opposed to the pleadings in which the letter of 22 September, 1914 other than Ex. I was described as the letter of assignment and the plea cannot be allowed to be raised. In the second place, to allow the plea to be raised is an evasion of Section 91 of the Evidence Act and of the Stamp Law and the principle of the ruling in Raja of Bobbili V/s. Inuganti China Sitaramasami Garu 23 M. 49 : 4 C.W.N. 117 : 26 I.A. 262 : 7 Sar.P.C.J. 597 : 8 Ind. Dec. (N.S.) 428 (P.C.). A perusal of Exs. I and III only or of even I alone leaves in one's mind the impression that something like a transfer was intended. It is so easy to infer the transfer but to allow such an inference to be made and to give effect to it is to allow secondary evidence of the letter of assignment to be given.

(3.) For the sake of argument, I will leave these two considerations aside and consider the question whether Ex. I by itself amounts to an assignment. In my opinion, if the matter is dealt with, apart from the English decisions to be considered lower down, it does not. There must be words of transfer in the instrument. A notice to the debtor not containing words of transfer nor referring to a transfer is not an instrument of transfer. Otherwise every order of payment is a transfer. Every cheque or bill of exchange is a transfer. In the first place one would expect that an instrument of transfer should, in general be an instrument executed in favour of the assignee. I say in general, for there is the well recognized exception of a transfer effected by an endorsement on the bond or other paper evidencing the debt sought to be transferred. The case in Rama Iyen V/s. Venkatachellam Pattar 30 M. 75 : 1 M.L.T. 329 : 16 M.L.J. 554 is an example. So also is the decision in Tmrding V/s. Harding (1886) 17 Q.B.D. 442 : 55 L.J.Q.B. 462 : 34 W.R. 775. In civilised communities, such an endorsement ordering the debtor to pay, has been always considered as a transfer--an idea borrowed from the law and practice of Negotiable Instruments--and the intention is given effect to by recognizing the endorsement as a transfer. But, apart from such cases, I would expect an instrument of transfer to be addressed to the assignee. The settlement of accounts containing the entry in Seetharama Ayyar V/s. Narayanaswami Pillai 17 Ind. Cas. 749 was between the assignor and assignee and must be regarded as addressed to the assignee. But assuming that the instrument may be addressed to the debtor, there must be words operating as a transfer.