PUNJARAM MALI Vs. HARISAO RANGARI

JUDGEMENT

(1.) 1. Balaji, defendant 2, had entered into an agreement with Punja-ram, defendant 1, for the sale of a house in mauza Patansaongi. This agreement is said to have been entered into on 29th January 1928 and Rs. 350 were paid by Balaji to Punjaram as earnest money. Two years later on 27th January 1930 this agreement was, according to the plaintiff, assigned to him by Balaji, and he claimed Rs. 350 paid for the assignment. According to the wording of the plaint: the plaintiff asked defendant 1 to execute the sale-deed of the house and to pay the amount of the earnest money, but Punjaram began to practise evasion.

(2.) THE plaintiff then discovered that Punjaram had transferred the house to the malguzar of the village and consequently he brought a suit to recover Rs. 350 on account of the earnest money paid with interest at Rs. 2 per cent per month by way of damages. The defence of Punjaram, who not unnaturally is the only contesting defendant, was that the agreement to sell was a forgery deliberately made to implicate him by a tenant of his, Shaligram; that his signature on an agreement of release which he gave to Shaligram had been torn from the main body of that document, and that a fictitious contract to sell had been written above it. He thus denied that there had been any agreement to sell or that any earnest money had been paid.

(3.) THE finding as to the genuineness of the document embodying the agreement to sell is a finding of fact and although this Court might on an appreciation of the evidence have come to a different conclusion, that finding must be accepted. All the evidence for and against the genuineness of the document has been adduced on both sides and any discussion as to the burden of proof is academic. The only point arising for consideration in second appeal is whether the plaintiff assignee had a right to sue at all. The learned Judge of the lower appellate Court, relying on the decision in Lachhmi Narayan v. Dharamchand 1926 Nag 396 has held that the interest of Balaji was a transferable interest, relying on the interpretation of the phrase "a mere right to sue" in that judgment. No attempt at an exhaustive definition was made in that judgment and I find myself in agreement with the remarks of Subhe-dar, A.J.C., in Ratansi Asa Shop v. Sha Kunwarji 1930 Nag 22 that the definition given in Lachhmi Narayan v. Dharamchand 1926 Nag 396 has been too widely stated and was unnecessary for the decision of the case. A more comprehensive test than the one mentioned in Lachhmi Narayan v. Dharamchand 1926 Nag 396 is whether the right which it is sought to transfer could be attached in the execution of the decree: vide the opinion of Findlay, Offg. J. C, in Kalusa v. Madhorao 1926 Nag 357.