SAMU PATHAN Vs. CHIDAMBARA ODAYAN

JUDGEMENT

(1.) The plaintiff obtained an assignment of a mortgage debt from the defendant and sued the mortgagor for the mortgage amount. That suit was dismissed on the ground that the mortgagor had no title to the mortgaged properties. Why the plaintiff did not obtain a personal decree against the mortgagor is not explained. The plaintiff brought the present action in the Small Cause side of the Sub-Court, Mayavaram, to recover damages for an alleged breach of a covenant for title. The 1st Court dismissed the suit and this application is to revise the decree of the first Court. Plaintiff contends that the mortgage is an interest in immoveable property, that the transfer was a sale of immoveable property and by virtue of Section 55 of the Transfer of Property Act, the defendant should be deemed to have contracted that the interest which he professed to transfer subsisted.

(2.) A charge on land is undoubtedly an interest in immoveable property, and I will assume, though there is a difference of opinion on this point, that for the transfer of such a charge, the formalities required for the sale of immoveable property should be complied with. See Ramasami Pattar v. Chinnan Asari 24 M. 449 : 11 M.L.J. 132, Subramaniam v. Perumal Reddi 18 M. 454 : 5 M.L.J. 92, and Section 8, Transfer of Property Act, Ghose on Mortgage, page 72 (note). But I am not prepared to hold that there is an implied covenant for title on a transfer of a mortgage-debt. A transfer of a mortgage can hardly be regarded as a transfer of ownership of immoveable property. What is sold is primarily not the charge but the debt Subramaniam v. Perumal Reddi 18 M. 454 : 5 M.L.J. 92; and the rights of such a transferee are practically the same as those of a transferee of an actionable claim, though a mortgage- debt is not an actionable claim as defined in the Transfer of Property Act. In a transfer by way of mortgage there is implied a covenant for title and the transferee of a mortgage gets the benefit of this covenant. [See Section 65, Clause (a), of the Transfer of Property Act]. My attention has not been drawn to any case, Indian or English, in which such a covenant was implied; on the other hand the case of Marnham v. Weaver 80 L.T. 412 seems to assume that there is no such covenant. I agree with the lower Court that the plaintiff has no cause of action against the defendant. Further, the suit appears to be barred by limitation, as the cause of action for a suit for damages for breach of a covenant for title arises on the execution of the conveyance. As, however, the question was not argued before me, I do not desire to express any final opinion on the question.

(3.) I dismiss the petition with costs.