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TMI Blog1913 (12) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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 amende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ird 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his own name? He might be entitled to the money promised, but, before he could recover it, he would have to obtain the indorsement of the legal representative of the deceased promisor. The position would, indeed, be similar to that described in Chalmers on Bills of Exchange, Ed. 7, at p. 140, where it is stated, on the authority of Bishop v. Curtis [1852] 21 L. J. Q. B. 391, that, where C, the holder of a bill payable to order, dies after having specifically bequeathed it to X but without indorsing it, X cannot sue on it unless and until he obtains an indorsement in his favour by C's executor. Thomas William Richardson, J. 5. I agree that there was no complete legal transfer or gift of the promissory note by the deceased woman to the Pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an intangible thing incapable of passing by delivery like an ordinary chattel. It is perhaps a possible view that actionable claims are not moveable property within the meaning of sec. 123. But if the section applies to them, then it would seem that, delivery being impossible, a gift could only be made under the section in the first of the two modes provided, namely, by a registered deed, attested by two witnesses. The law might say that the delivery of the paper should in such a case as the present (as in the case of a currency note) carry with it the right to the debt but it does not say so. 6. The right to the debt can only be effectually transferred by some method authorised or recognised by the law. Something must be done to enable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contemplation of death because these provisions are not applicable to Hindus. 8. But assuming that there was a valid transfer, the further question arises whether the Plaintiffs are entitled to sue on the note. It may be generally true that a valid assignment of a negotiable instrument as an actionable claim gives the assignee the rights of the holder subject to equities. But this broad proposition must be subject at any rate to the qualification that it is true only so far as it is not inconsistent with the special provisions of the Negotiable Instruments Act. Under sec. 78 of the Act the only person who can give a good discharge to the maker of a negotiable instrument is the holder. That being so, it would seem that the rights which migh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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