Judgement

Appeal (No. 13 of 1934) from a decree of the High Court (March 1, 1933) modifying a decree of the Subordinate Judge of the 24 Parganas (June 27, 1929).

23 Law Rep. 62 Ind. App. 265 ( 1934- 1935) Satindra Nath C houdhury V. Jatindra Nath C houdhury

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The appellant and respondent were brothers. By a registered deed of partition dated March 18, 1921, it was agreed that the family property should be equally divided between them and that their widowed mother, in lieu of a share, should receive an annuity of Rs. 12,000 from each of the brothers, payable in instalments at agreed dates with interest at 12 per cent, per annum in default. As security for the payment, their mother was to have a charge on a named property in the share of each brother for the amount due by him with a right of recourse to his other properties, movable and immovable, if the named property was insufficient to pay the debt. The appellant made no payment, and his mother by a deed of gift dated July 22, 1922, transferred to the respondent the amount then due from the appellant with " all the right, title and interest whatever " she had in the money. The deed of transfer was registered in Book IV. under s. 51 of the Registration Act.

On June 13, 1927, the respondent instituted a suit against the appellant for the amount due with interest at 12 per cent, per annum. The Subordinate Judge held that the deed of gift was a transfer of an actionable claim that did not require registration and that it carried with it the charge on the property named in the partition deed, and he decreed the amount claimed with interest at the contract rate to the date of the decree, in default of payment within one month, the property charged to be sold. Subsequent interest was allowed at 6 per cent, and a personal decree for any deficiency given. On appeal by the judgment-debtor the High Court upheld the findings of the Subordinate Judge but substituted for the personal decree a decree for realization of any balance due from other movable or immovable property of the debtor, and on the application of the judgment-debtor, extended the time for payment, allowing interest at the contract rate for the extended period.

1935- June 3, 4, 6. De Gruyther K.C. and Pringle for the appellant. On the true construction of the deed of gift the security was not transferred. There is no express assignment of the charge and the assignment cannot be spelt out of s. 8 of the Transfer of Property Act, 1882. The widow had a charge on the property during the whole of her life. Payments may fall into arrears giving a right to enforce the charge. If the arrears are paid, there is still a charge for future payments. The selection of the method of registration is an indication of the construction the parties put on the document Jagatdhar Narain Prasad v. A. M. Brown. (( 1906) 33 C. 1133, 1153.) If the security was transferred, the document would require registration. It could not be registered in Book I. because there was no description of the property and registration in Book IV. would be ineffective. The deed would therefore be void under s. 49 of the Registration Act. [Reference was made to Parasharampant

v. Rama (( 1909) I. L. R. 34 B. 202.) ; Jambu Parshad v. Muhammad Aftab Ali Khan (( 1914) L. R. 42 I. A. 22.); Maina v. Bachchi (( 1906) I. L. R. 28 A. 655.); Dottie Karan v. Lachmi Prasad Sinha (( 1930) L. R. 58 I. A. 58.); Maung Po Kyi v. Noor Mohammad (A. I. R. ( 1933) Ran. 259.); Najibulla Mulla v. Nusir Mistri (( 1881) I. L. R. 7 C. 196.), and the Code of Civil Procedure, 1908, Order xxxiv., r. 14.] The decision in Subbalakshmi Ammal v. Narasimiah (( 1927) 52 Mad. L. J. 482.) is wrong. Sah Mukhan Lal Panday v. Sah Koondun Lall (( 1875) L. R. 2 I. A. 210.) is distinguishable. If the charge was not intended to be transferred, under the deed of partition, the only right the widow had was to proceed against the property as in a mortgage. She was not entitled to a personal decree. There is no cro