JUDGMENT

Carnduff, J. - The Petitioner before us executed a promissory note for Rs. 300 in favour of one Nityamani Baisnabi. Nityamani handed this note over without any endorsement to an idol through its pujari, and, having done so, died. The shebait, who is the Opposite Party, sued the Petitioner for the amount due and obtained a decree. Hence this Rule. For the Petitioner it is contended that a promissory note to order cannot be transferred otherwise than by endorsement and delivery, as contemplated by sec. 48 of the Negotiable Instruments Act, 1881. But there is authority--see Benode Kishore Goswami v. Ashutosh Mukhopadhya 16 C. W. N. 666 (1912) and the cases and textbooks there cited--for holding that this is not so ; and the argument of the Opposite Party that he can here rely on an assignment of the note as a chose in action or, failing that, on a transfer by gift, requires examination.

2. A chose in action can now, under sec. 130 of the Transfer of Property Act, 1882, as amended by the Transfer of Property Act, 1900, be assigned only by an instrument in writing signed by the transferor or his agent. But, it is contended, the section does not--see sec. 137-- apply to instruments which are for the time being, by law or custom, negotiable, and under the former law there could apparently be an equitable assignment without writing. That is obviously all that the Opposite Party can rely upon here : and he is put out of Court as soon as the fact is recalled that his is the position of a mere volunteer. For equitable assignments were given effect to in equity only when supported by valuable consideration.

3. There remains the question of gift, which depends upon sec. 123 of the Transfer of Property Act, 1882. Under that section a gift of moveable properly--and a chose in action is moveable properly within the meaning of the Act--may be effected by delivery made in the same way as goods may be delivered. Now, the delivery required by sec. 90 of the Indian Contract Act, 1872, involves the doing of something which has the effect of putting the goods in the possession of the receiver or his agent. Here what was done was the handing over of a piece of paper, which as it stands, is, on the face of it, of no intrinsic value to anyone but Nityamani or a person nominated by her indorsement, and which, in the hands of a third party unindorsed, is, at most, some evidence of an intention on the part of Nityamani to make a present of the debt indicated by it to that third party. Nityamani having failed to nominate by indorsement, her intention was not carried out, and there was no completed gift : or, to employ the language used in re Richardson; Shilleto v. Hobson 30 Ch. D. 396 (1885), the document was only an incident to the chose in action, and all that was delivered was this incident, the handing over of which cannot be said to have had the effect of putting the representative of the idol in possession of the debt. This view is, I think, in accordance with that taken in Merbai v. Perozbai I. L. R. 5 Bom. 268 (1881) in Khursedji Rustomji Colah v. Jestonjee Koasjee Bucha I. L. R. 12 Bom. 573 (1888) and by the Judicial Committee in Aga Mohamad Jaffer Bindamin v. Kulsum Bibi I. L. R. 25 Cal. 9 : s. c. L. R. 27 I. A. 196 (1897). It seems to me, therefore, that there was no completed gift, and that the contention of the Opposite Party again fails. The Rule should, therefore, be made absolute, but I would not make any order as to costs.

4. I must add that the broadly stated proposition that the Negotiable Instruments Act, 1881, leaves untouched the rules of the general law which regulate the assignment of chose in action and the transfer of chattels seems to me to require the qualification, that the latter must not be inconsistent with the former.' In England this qualification is expressly imposed by sec. 97 (2) of the Bills of Exchange Act, 1882 (45 & 46 Vict., C. 61), and, though there is no corresponding provision in the Indian Act of 1881, th