Decided on February 08,1974

sankarasubba Iyer Respondents


P.SUBRAMONIAN POTI,J. - (1.) THIS is an application seeking the court to record that the interests of the deceased 1st appellant has devolved on appellant No. 2. The appeal was filed by the two plaintiffs in the suit as appellants Nos. 1 and 2. The 2nd plaintiff did not claim the decree nor were the allegations in the plaint such as to find any interest in the subject -matter of the suit in the 2nd plaintiff. The suit was decreed by the trial court. The suit was one for recovery of certain hire monies in respect of a vehicle said to have been entrusted to the defendant by the first plaintiff for the purpose of use for the training of Army drivers. The 2nd plaintiff is said to have mediated for such entrustment. The suit was decreed by the trial court but in appeal the decree was vacated. As a result, the suit stood dismissed. It is against that the appeal was taken to this court. The decree, if the suit succeeded here, would therefore be in favour of the plaintiff. The first plaintiff died on 11th September 1973. The legal repre­sentatives of the first plaintiff who were his wife and children were not impleaded in time. They came with a petition to implead after the appeal abated as against the first appellant and they also moved a petition for setting aside the abatement. These were dismissed finding that there was no reason to set aside the abatement. Therefore appeal has abated as against the first appellant. It was only the first appellant wanted the decree and the decree can only be granted to the first appellant. Though the second appellant is still on the party array that may not be sufficient to consider the claim in the suit on the merits. But the second appellant has moved this petition bringing it to the notice of the court that some time prior to the death of the first appellant he had transferred his rights in the subject -matter of the suit to the 2nd appellant by a document which also has been produced along with the petition. It is claimed that the second appellant must be recorded as having obtained assignment of all the rights of the first appellant. It is in that manner that the second appellant seeks to continue the proceedings.
(2.) THE claim of the second appellant is objected to by the respondent who has raised several contentions in answer in his counter -affidavit. The genuineness of the assignment deed, which is unregistered, is itself in question. The second appellant is put to strict proof of the assignment taken by him. Several circumstances are pointed out by the respondent in the appeal to indicate that the assignment would not have been likely. It is also said that the assign­ment deed which is said to have been executed on 31st May 1973 could have been brought to the notice of the court long before the death of the first appellant. It is also contended that there was nothing to assign in the subject -matter of a suit which stood dismissed and therefore nothing was conveyed by the assignment. It is therefore said that based on the assignment the assignee cannot seek to continue the prosecution of the appeal. Since the genuineness of the assignment was itself in dispute we posted the matter for evidence and we exa­mined the second appellant in this court. He has spoken in support of the assignment Ext. P -7 and he has parti­cularly referred to the signature in this deed as that of the 1st appellant. There is no evidence on the side of the second respondent to justify the challenge to the genuineness of Ext. P -7. It is true there are several circumstances leading to suspicion about the genuineness of the document. The document is seen written on two stamp papers for Rs. 25 each and they are seen purchased on 17th April 1973. The document is seen executed on 31st May 1973. The second appellant, who was examined, swears that the stamp papers were purchased when he went over to his Trivandrum office, that they were taken to the Neyyattinkara office and the document was executed the next day. That cannot be the case. It is also seen, as pointed out by counsel for the respondent, that the writing of the name of Krishna Panicker, the executant of Ext. P -7 at the bottom of Ext. P -7 and the middle of the second page is in one ink while it is apparently in a different ink in the bottom of the second page. Whatever that be, we do not think that these circumstances alone would be sufficient to hold that Ext. P -7 is not signed by the first appellant. We believe the evidence of the second appellant and hold that Ext. P -7 is genuine.
(3.) THERE is a contention raised that even assuming that Ext. P -7 is genuine it cannot convey any rights to the second appellant so as to enable him to continue the appeal notwithstanding the demise of the first appellant. In brief the counsel's argument appears to be that at the time when Ext. P -7 was executed the decree in force being one of dismissal of the suit there was nothing to transfer to the second appellant and what was transferred or purported to be transferred was only the final fruits of the litigation. That would mean the transfer will be operative in favour of the second appellant only when a decree is passed in favour of the first appellant. That would mean that it would operate only in the future. Hence until such decree is, if at all, passed, the second appellant would have no interest in prosecuting the appeal on the terms of Ext. P -7. Therefore he could not seek to implead himself under Order XXII, rule 10 of the Civil Procedure Code.;

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