P L D 1956 (W (PLP)

Jadu Nath Poddar v. Rup Lal Poddar 33 Cal. 967, Dharam Chand Boid v. Mouji Shahu 16 1 C 440, A. K. R. M. M. K. Firm v. In Nyaung 156 I C 658, Naraklal v. Thaggo Lal 13 1 C 455, Ejaz Hussain v. Gobind Pershad A I R 1933 All. 188, G. B. Asundi v. Virappa Andaneppa A I R 1939 Bom. 221, and Periakatha Nadar v. Mahalingam A I R 1936 Mad. 543 ref. Ram Sewak Lal v. Satruhan Deo Sahai A I R 1927 Pat. 170 dissented from. Siraj‑ud‑Din Ahmad for Appellant. Muhammad Nazeer for Respondents. KAIKAUS, J.‑Haji Jalal Din secured a final mortgage decree for Rs. 5,500 against Meraj Din on the 18th of November 1949. An application for execution was presented but the decree‑holder died during the pendency of the application and the proceedings were filed A second application was made on the 6th of October 1951 by Haji Ashiq Hussain who is the appellant before me, claiming to be the legal representative of the deceased decree‑holder on two grounds: (1) that he was the adopted son of Haji Jalal Din and (2) that the widow and the two daughters of Haji Jalal Din who were his heirs and legal representatives had relinquished their rights in his favour by a registered deed dated the 5th of May 1951. The judgment‑debtor denied that Haji Ashiq Hussain was entitled to execute the decree. After evidence by the parties, the executing Court dismissed the application of Haji Ashiq Hussain, holding that he was not the legal representative of the deceased. It held that Muhammadan Law does not recognise the institution of adoption and, therefore, Haji Ashiq Hussain was not entitled to succeed to the property of the deceased decree‑holder. It did not deal with the question as to whether the rights of the heirs of the deceased decree‑holder stood transferred to Haji Ashiq Hussain. In this appeal before me by Haji Ashiq Hussain it is conceded that adoption would not confer any rights upon him, but it is urged that on account of the release deed executed in his favour by the widow and daughters of the deceased decree‑holder, he has become entitled to their rights and is now the legal representative of the decree‑holder. The judgment‑debtor respondent does not contest that there is a registered deed executed by the widow and the daughters of the deceased decree‑holder in favour of the appellant on the 5th of May 1951. He contends, however, that this deed of release or relinquishment cannot pass any title to the appellant. The only question before me is whether the deed is capable of transferring the rights of the heirs of Haji Jalal Din decree‑bolder to the appellant. For the contention that title does not pass by release or relinquishment, learned counsel for the respondent has relied upon Jadu Nath Poddar v. RP Lal Poddar (33 Cal. 967), Dharam Chand Boid v. Mouji Shahu (16 1 C 440), A. K. R. M. M. K. Firm v. In Nyaung (156 1 C 658) and Naraklal v. 2‑haggo Lal (13 1 C 455). In Jadu Nath Poddar v. Rup Lal Poddar the plaintiff had for the purpose of preventing his property from being attached and sold in execution of some decrees against him executed a deed of relinquishment in favour of the defendant, declaring that the properties belonged to the latter. The decrees against the plaintiff were set aside in appeal and the plaintiff sued to recover possession of the properties. The judgment proceeds, in the main, on the ground that the deed was fictitious and the plaintiff was not debarred from pleading his own fraud because the intention to commit fraud had not been carried into effect on account of the decrees having been set aside in appeal. However, at the end of the judgment the learned Judges relied upon an alternative argument that the deed was one of relinquishment and could not effect a transfer of title in favour of the defendant. They said: "Now it is well settled that title to land cannot pass by admission when the Statute requires a deed. It is obvious, therefore, that the mere execution of the deed of release did not create any title in the defendant". In Dharam Chand Boid v. Mouji Shahu a suit for a debt which was owing to a partnership had been filed by two persons in whose favour one of the partners had executed a deed of release saying that hanceforth the business of partnership would be conducted by them. It was held that there was no assignment of interest in favour of the plaintiffs and the suit was dismissed. In A. K. R. M. M. K. Firm v. In Nyaung a property had been purchased by a husband and wife in the name of a person who was the manager of a shop owned by them. After his death they executed a deed of release in favour of his widow saying that in consideration for the money that the shop may owe to the deceased they relinquish?ed all the rights in favour of the widow so as to entitle her to transfer the same according to her own wish. The general proposition that a deed of release pure and simple cannot operate as a conveyance was accepted in this case. But in view of its wording the deed of relinquishment was regarded as a transfer and the case does not really help the respondent. In Naraklal v. Thaggo Lal a tenant of certain land executed a deed of release in favour of another. There was a decree against the tenant in execution of which the land was attached. A suit by the persons in whose favour the release deed had been executed was dismissed on the ground that it was a mere relinquishment and it could transfer no title. About the general proposition that title cannot pass by relinquishment there can be no dispute. If 'A' is the owner of a property any statement by him that he is not owner or that he gives up his right in it, will not effect an extinguishment of his right. If he executes a deed of release in favour of a particular person who has before the release no rights in the property, then, if the deed is not capable of an interpretation that the executant intends a transfer, title will still remain unaffected. Release or relinquishment as such can affect rights only where it is made in favour of a person who already has some kind of .q right in the property and whose right is ipso facto expanded by the relinquishment. If a tenant relinquishes his right in the property the result is that the ownership of property which had previously been limited by the burden of the tenancy expands to the full although in such a case there is no transfer as such. The relinquishment of tenancy enables the owner to exercise rights which though parts of ownership, were, on account of the existence of tenancy, denied to him before. So far, however, as strangers to the property are concerned, a mere relinquishment can have no effect. That is the position with respect to a relinquishment pure and simple. But, what purports to be a decd of relinquishment may in fact be a deed of transfer. It will depend upon the wording of a particular document as to whether it can be construed as a transfer or not. A transfer after all only implies a consciousness of ownership of a right, an intention that that right should vest in another, and an act in execution of such intention. If these three elements be there, there can be no doubt that the deed would amount to a transfer. Before considering whether the deed in the present case amounts to a transfer or not, I would refer to three cases quoted by the learned counsel for the appellant in support of the proposition that a relinquishment of rights in a decree will amount to an assignment within the meaning of Order XXI rule 16 even if it were not a transfer. The first case relied upon is Ejaz Hussain v. Gobind Pershad (A I R 1933 All. 188). In that case a decree on the foot of a mortgage had been passed in favour of Mst. Champa Devi who executed a deed of release in favour of her husband Gobind Pershad saying that he was the real mortgagee and the decree‑holder. The husband applied for execution of the decree. It was held by the learned judges that the deed amounted to an assignment in favour of the husband. Ram Sewak Lal v. Satruhan Deo Sahai (A I R 1927 Pat. 170) which was a case similar to the one before them, was cited before the learned Judges. It had been held in that case that a deed of relinquishment by the benamidar in respect of a decree obtained in his name was not as assignment within Order XXI rule 16 so as to enable the true owner to apply for execution of the decree. The decree in that case was based on a compromise in which it had been stated that the debt was due in fact to the benamidar and not to the true owner. Referring to this case the learned judges said: "The report of the case does not show whether there were any such operative words as could have the effect in law of transferring the rights of Lachmi Narain to Satruhan Deo Sahai. On the face of it the deed of relinquishment in that case merely declared a fact which had been negatived in the compromise and the decree itself. In these circumstances the learned judges held that the relinquishment in question before them did not amount to an assignment of the decree‑holder's right to execute the decree". However, the learned judges, while accepting that Mst. Champa Devi had in fact no right in the property, regarded the deed of relinquishment as an assignment. With all respect I am not inclined to agree. The quotation from the judgment would show that the learned Judges did regard necessary the use of some words which would operate as transfer. In the document before the learned Judges there were no such words and it could not be called an assignment within the meaning of Order XXI rule

16. In G. B. Asundi v. Virappa Andaneppa (A I R 1939 Bom. 221) a money decree on the basis of some promissory notes had been passed in favour of two brothers. Their father filed a suit against them for a declaration that the promissory notes in fact belonged to him. In this suit there was a compromise which said: "There is no objection to grant a declaration and an injunction to the plaintiff in this suit that the plaintiff is the owner of the amounts that would be due after the date 20th August 1931, to the defendants". This compromise was construed as a transfer of the rights under the decree so as to entitle the father to file an application for execution. The judgment proceeds on an interpretation of the deed of compromise in the light of the circumstances of the case and does not lay down any general rule. In Periakatha Nadar v. Mahalingam (A I R 1936 Mad. 543) the assets of a partnership which included a decree had been sold by the Court and it was held that such sale amounted to an assignment within Order XXI rule

16. This case too does not lay down any rule that a mere relinquishment can operate as a transfer. I will now consider the wording of the deed in the present case. The deed refers to two kinds of property. It first mentions three items of property which Haji Jalal Din deceased had in his lifetime gifted to Haji Ashiq Hussain appellant and then proceeds in these words:‑ "In the three above‑named properties the heirs of Haji Jalal Din deceased had no right or share. In the rest of the property of Jalal Din deceased the executants have their legal share. The executants do not want to take that share from Haji Ashiq Hussain on account of his kindness, service and good treatment and the executants release their rights in the property of the deceased Haji Jalal Din in favour of Haji Ashiq Hussain so that Haji Ashiq Hussain has become the sole owner and possessor of the estate of Haji Jalal Din. The executants have now no right or share left in that estate". It will be clear that the executants of this document were fully conscious of the right which they had in the property of the deceased Haji Jalal Din and their intention was that they would not henceforth remain the owners. It is cleat also that they wanted to make Hail Ashiq Hussain the owner of the property which they owned. They go on to say that Haji Ashiq Hussain would be entitled to transfer this property in any way he likes and that they are executing this deed to serve as a sanad. It appears to me that all the three requisits of a transfer, a consciousness of ownership an intention that ownership should now pass on to the other party and an act in execution of such intention, are all present. I would, therefore, construe this deed as a deed of transfer and hold that the rights of the widow and the daughters of the deceased decree‑holder have now passed to the appellant and that he is entitled to execute the decree. This appeal is allowed and the case remanded to the executing Court for proceeding with the application for execution. Parties will bear their own costs in this Court. Leave for letters patent appeal is granted. A. H.??????????????????????????????????????????????????????????????????????????????????????? ??????????? Appeal allowed.