SIVAMALAI GOUNDAN Vs. RAMASWAMI GOUNDAN

JUDGEMENT

(1.) THIS is an appeal from the decree of the District Judge of Coimbatore, dated November 1, 1933, affirming the decree of the principal Subordinate Judge of Coimbatore dated November 18, 1932, in O.S. No. 124 of 1931, a suit for declaration that the plaintiff has obtained a valid assignment of the rights of the 2nd defendant who was a chit-holder or subscriber in a chit of which the 1 defendant was the manager or stake-holder, and was thus entitled to all the rights and was subject to all the liabilities of the 2nd defendant. The assignor 2nd defendant did not contest the suit. The 1 defendant denied that he had given his consent to the transfer in favour of the plaintiff and contended that in the absence of such, consent the transfer was void under Rule 7 of the chit rules. THIS was the substantial defence in the suit though it was also alleged that the plaintiff had no cause of action. THIS allegation about the absence of the cause of action was not made the subject matter of an issue in the trial Court nor does it seem to have-been argued in appeal in the District Court. The main question was whether the 1 defendant and given his consent to the assignment or not. On this point the concurrent findings of both the Courts below are that the 1 defendant did give his consent, and these findings are not open to attack in second appeal, all the more so because nothing has been shown in the judgments of the Courts below from which it can be inferred that the question was not correctly approached by them.

(2.) A new point has been sought to be raised, in this second appeal, namely that the declaration asked for is one which cannot be given according to law especially in view of Section 42 of the Specific Relief Act. Reliance is placed in this connection on the decision reported in Rama Krishna V/s. Narayana 39 M 80 : 26 Ind. Cas. 883 : 27 M.L.J. 634 : (1914) M.W.N. 912 which no doubt lays down that ordinarily a declaration can be given only in cases which come directly within the provisions of Section 42 of the Specific Relief Act, though for exceptional reasons a Court may give a declaration in a case which does not come directly within that section. That also was a case of an assignment of a chit-holder's right and it was held that a declaration to the effect that the assignee-plaintiff was entitled to step into the shoes of his assignor is not a declaration in respect of the plaintiff's legal character or of any right, to properly claimed by him. In the present case, however, there is no doubt that the plaintiff is entitled at least to a declaration that he is entitled to such of the rights of his assignor, of course subject to the liabilities of his assignor, as had actually accrued on the date of his assignment as against the 1 defendant in view of the finding that the assignment was with the consent of the 1 defendant. To this extent there can be no serious objection taken to the declaration. The decree of the lower Appellate Court is, therefore, modified by limiting the declaration only to the rights of the plaintiff which he derived under the assignment, that is to say, to recover the amount due to his assignor on the date of the assignment, subject to the liabilities of his assignor. As the appeal has failed in substance, the appellant must pay the costs of the plaintiff-respondent in this second appeal.