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Madras High Court
Subramanian Pattar vs Kiradadasan Alias Thirumalapad … on 3 September, 1912
Equivalent citations: 16 Ind Cas 686
Bench: S Aiyar, Napier


1. The plaintiff is the appellant before us in this second appeal. He represents the Karaswan in as ordinary Kuri chit which collapsed in 1905. The defendant is the owner of the legal right and he is subject to a legal liability. He is the transferee of the interest of the holders of two non-benefited half tickets in the Kuri and he is subject to the liabilities of a benefited ticket in the said Kuri. The plaintiff brought this suit for recovering Rs. 2,700 due by defendant as holder of the benefited ticket with interest thereon. The defendant pleads that he was entitled to set-off against this Rs. 2,700 what was due to him by the Karaswan as owner of the non-benefited two half-tickets, amounting to Rs. 2,400 and interest thereon.

2. The lower Courts allowed such set-off and gave a decree to the plaintiff for the balance. The plaintiff contends in second appeal that the defendant must recover the Rs. 2,400 due to him from the Karaswan by a suit against the Karaswan as he cannot set it off against the plaintiff, who has purchased the Karaswau’s rights in the Rs. 2,700, due by defendant to the Karaswan, such set-off not being legally claimable by defendant. The lower Courts in allowing the set-off gave three reasons for their decision, namely, (a) that both the debts arose out of the same transaction, (6) that under Section 132 of the Transfer of Property, Act the plaintiff, who is the transferee of an actionable claim takes it subject to all the liabilities and equities to which the transferor was subject in respect thereto at the date of transfer and (c) the defendant’s claim against plaintiff’s transferor was not baired by limitation as contended by plaintiff (defendant put in his written statement in 1909 claiming such set-off, the Rs. 2,400 having become due to him in 1905).

3. The learned Vakil for the appellant (plaintiff) contests the conclusions of the lower Courts on all the above three questions. As regards the first question, it seems to us that the case of Panchena Manchu Nayar v. Gadinhare Kumaranchath Padmanabhan Nayar 20 M. 68 clearly decides that an ordinary Malabar Kuri is not a company or partnership composed of the Karaswan and the subscribers, and that no general rights and obligations and no mutual rights and duties are created so as to include all of them as one body. The contracting parties in such a Kuri are the Karaswan on the one side and each of the subscribers on the other side and there are as many separate contracts as there are subscribers. The transaction between the Karaswan and the holder of any particular ticket is quite a different transaction from that between the Karasawan and the holder of any other ticket. The opinion of the lower Courts that the debt sought to be set off by the defendant arose out of the same transaction as the debt claimed by plaintiff is, therefore, unsound.

4. As regards the second question, Section 132 of the Transfer of Property Act, if it applies, clearly allows the defendant to set off the debt due to him by the Karaswan in this action brought by the Karaswan’s assignee. The learned Vakil for the appellant argued that Section 132 allows only the liabilities and equities to which the transfer was subject in respect of the same actionable claim to be Set-off and that the money due to the defendant was not a liability to which the transferor was subject is respect of the plaint actionable claim. But the illustration (i) “to that section makes the meaning of the phrase “is respect thereof” in Section 132 very clear. The said ~ illustration is as follows: “A. transfers to C. a debt due to him by B., A. being then indebted to B.C. sues, B. for the debt due by (sic) to A, In such suit B. is entitled to set-off the debt due by A. to him, although C. was unaware of it at the date of such transfer.” The case of Arunachellam Chetti v. Subramanian Chetti 30 M. 235 : 17 M.L.J. 87 is also clear authority for the proposition that a debtor can set-off against the assignee of his creditor independent claims which he, had against his creditor’s assignor. Then, it was contended by the appellant’s Vakil that Section 2 of the Transfer of Property Act Clause (d) makes Section 132 of the Act inapplicable to transfers by operation of law or by or in execution of a decree or order of a Court of competent jurisdiction and as the plaintiff became the asignee of the Karaswan actionable claim by purchase in Court auction, Section 132 of, the Transfer of Property Act is not applicable. But Section 132 merely enacts a rule of law, which was in force before the Transfer of Property Act was passed and though it may not apply of itself to the transferee of an actionable claim who gets his title by purchase in Court auction, Section 2, Clause (d) cannot relieve such transferee from the liabilities and equities to which he has been all along subject under the common law before the Act of 1882 was passed, In the case of Bhagawani Kunwar v. Lalla Baijnath Prasad 2 B.L.R. (App.) 84 : 10 W.R. 380 it was held that against a transferee by purchase in Court auction also, set-off can be claimed by the defendant of the monies due to the defendant by the plaintiff’s transferor. We, therefore, hold that the defendant was entitled to claim even against the plaintiff a set-off of the sums due by the Karaswan to him.

5. The last point taken is that the defendant’s claim against the Karaswan was barred on the date of the written statement (which claimed the right of set-off) because the Kuri-Vari, which evidenced the contracts between the Karaswan and the subscribers, was not registered and more than three years had elapsed on the date of the written statement’–1909–from the date (1905) when defendant became entitled to recover Rs. 2,400 from the Karaswan. The District Judge says in para. 4 of his judgment that the Kuri-Vari is a registered document and the written statement (para. 9) also alleged that the Kuri-Vari was registered. The Kuri-Vari copy (Exhibit 1) given to the original holder of the prized ticket (Sambasiva Sastry) indicated that the Kuri-Vari had been registered and the appellant’s learned Vakil who was given time to state definitely whether he persisted in his contention that the Kuri-Vari was not registered, has now frankly given up his said contention. If the Kuri-Vari was registered, the defendant’s claim to set-off is clearly not barred by limitation as the period of limitation is six years. In the result, the second appeal is dismissed with costs.

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