(Karuppath Veetil) Sankaranarayana Menon vs (Mangat) Vasu Menon and Another

Curgenven, J.—In the suit out of which these proceedings arose, one Madhavan Nair obtained an assignment of the decree and an order

under Order 21, Rule 16, Civil P.C., recognizing that assignment. In E.P. No. 183 of 1929 the petitioner applied for execution on the ground that

he was the real beneficiary under the assignment deed and he produced a declaratory decree to that effect. This decree recited that the assignment

of the decree in other suit was benami for him. The question which now arises is whether under the terms of Order 21, Rule 16, he is entitled to be

recognized as assignee decree-holder in place of Madhavan Nair and to be allowed to execute the decree. The two Courts below have differed

upon this point. The learned District Munsif has come to the conclusion that the decree obtained by the petitioner merely declares that the

assignment is benami for him and will not amount either to an assignment in writing or by operation of law as is required by the rule. The learned

Subordinate Judge considers on the other hand that the effect of the petitioner''s decree is to substitute his name in place of that of Madhavan Nair

in the assignment deed. Apart from any question of the effect of a declaratory decree this Court in Palaniappa Chettiar v. Subramania Chettiar AIR

1925 Mad. 701 has decided that in the case of a transfer under an instrument in writing no one except the person named in the deed can claim to

be the real owner or the real transferee and that in particular this applies to the case of a benamidar. That decision dissented from an earlier

decision of this Court in Maniokam v. Tatayya (1898) 21 Mad. 388 and with all respect to that earlier decision the reasoning of it does not

commend itself to me and I prefer to follow Palaniappa Chettiar v. Subramania Chettiar AIR 1925 Mad. 701. That decides in the negative the

question whether an alleged real owner can come and assert that the ostensible transferee of the decree is merely benamidar for him and require

the Court to recognize him and allow him to execute the decree.

The question next arises whether the existence of a declaratory decree to the effect that a benami relationship exists between the two parties

makes any difference. There is a case of this Court, Sethurayar v. Shanmugam Pillai (1898) 21 Mad. 353 which might be taken as showing that a

declaratory decree has such an effect. I think that it may perhaps be distinguished by the circumstance that the decree in that case, unlike the

decree in the present one, declared that the plaintiff was entitled to apply for the execution of the transferred decree. But apart from that the

reasoning, I think, is on the same lines as the later case in the same volume which, as I have already said, has been dissented from in Palaniappa

Chettiar v. Subramania Chettiar AIR 1925 Mad. 701. The learned Judges in Sethurayar v. Shanmugam Pillai (1898) 21 Mad. 353 cited

Umasoondury Dassey v. Brojonath Bhattacharjee (1889) 16 Cal. 347, as authority for the view that a declaratory decree will entitle the plaintiff to

apply for execution. But I find that Umasoondury Dassey v. Brojonath Bhattacharjee (1889) 16 Cal. 347 is one of a class of oases where the

transfer has been effected not by any mere declaration but by operation of law.

That particular case related to the revocation of an executorship held by a mother, which was disputed by the minor son of the testator and

resulted in probate being revoked, and it proceeded upon the footing that the minor''s succession to the estate of his father, being a succession or

transfer by operation of law, came within the terms of Section 232 of the old Code corresponding to the present Order 21, Rule 16. Another case

of the same class is Gobind Singh and Others Vs. Gopal Saran Singh, , where a certain trust was declared incapable of execution with the result

that the trustees ceased to function as such and the original owner became entitled to execute the decree also by operation of law. These cases, I

think, are not analogous to the present one inasmuch as the decree here does not in terms divest the benamidar of his position as such. It only

shows that he is not the real owner of the property. For the effect of a declaratory decree in somewhat similar circumstances the analogy of

Mahadeo Baburao v. Anandrao Shankarrao AIR 1933 Bom. 367 may be cited. In that case a widow obtained a decree and the adopted son of

her son by the latter''s widow obtained a declaratory decree that as adopted son he was entitled to all the property left by the decree-holder''s

husband. The learned Judge who decided the case pointed out in the first place that there was no assignment in writing and went on to consider

whether there was a transfer of the decree by operation of law.

He adopts the meaning given to the phrase ""by operation of law"" proposed by the Privy Council in Abidunnissa Khatoon v. Amirunnissa

Khatoon (1876) 2 Cal. 327, namely that it should connote a transfer on death or by devolution or by succession, so that a transferee by operation

of law would be a legal representative of the deceased decree-holder, or a person in whom the interest of the decree-holder has become vested

under a. statute, e.g., the official assignee of an insolvent under the Presidency Towns Insolvency Act or the purchaser at a Court sale in execution

of a decree. A mere declaratory decree will not effect such a change in the legal position. He. adds:

The only course open to the respondent was either to apply in execution of his own decree for the appointment of a receiver of Rangubhai''s

decree or to follow the procedure laid down in Order 21, Rule 53, if it was contended that the decree in favour of the respondent gave him the

right to proceed in accordance with that rule.

In Markt & Co. Ltd. v. Knight Steamship Co. Ltd. (1910) 2 K.B. 1021, Fletcher Moulton, L.J., has remarked of a declaratory decree that it

has no further effect than an admission by the parties, and I am aware of no authority which shows that it can operate to effect any change in the

legal relationship between the parties. In the present case if the transfer is to be held to be valid by operation of law I think that there must be a

decree so operating, as for instance by a compulsory execution of a deed of assignment such as is contemplated in Order 21, Rule 34. Unless this

is done I do not think that a mere declaration of rights between the parties can take the place either of an assignment in writing or by operation of

law, both of which involve an actual change in the legal rights to the decree. It appears to me that the learned District Munsif has rightly decided the

case and that the petitioner before me was not entitled to execute by force of the assignment to his benamidar. I accordingly allow the appeal, set

aside the order of the Subordinate Judge and restore that of the District Munsif with, costs throughout.