P L D 1963 Supreme Court 663 (PLP)

CORNELIUS, C. J.‑I agree with my learned brethren that this appeal should be dismissed. The procedural law of Pakistan does not countenance the failure of a suit for mere non joinder or mis joinder of parties. A It is also the law that an objection on this ground will not be entertained unless it is taken at the earliest possible opportunity. Tile defendant‑company which is the tort‑feaser in the case allowed the suit to proceed ex parte and this, coupled with failure on the part of the trial Court to exercise its powers in order to ensure that the suit was framed in accordance with law has provided the reason for the raising of a complicated argument at the appellate stage. The plaint which was by the insurer, namely, the Queensland Insurance Company asserted that there had been an assignment to itself of the marine insurance policy which the insurer had issued in favour of Suleman Ismail & Co., and indeed the plaintiffs were described in the heading of the plaint as "Queensland Insurance Co. assignees of Suleman Ismail & Co." The law in this respect in relation to policies of marine insurance is contained in section 130A of the Transfer of Property Act with which must be read section 130 of the same Act requiring that the transfer of an actionable claim shall be effected only by written instrument and it was accordingly the duty of the plaintiffs in the case to supply with their plaint a copy of the deed of assignment, if there was one upon which they relied. In fact, they applied the description of "assignees" to themselves upon the statement in paragraph 6 that they had under their contractual liability to Suleman Ismail & Co. paid the latter a sum of Rs. 8,070‑5‑0 as indemnity for loss of goods, which had been consigned for carriage to Chittagong in a ship belonging to the defendant Co. namely, the East & West Steamship, which is the appellant before us. The plaint proceeds to assert that in consequence of such payment "the said Insurance Co. stands subrogated and assigned to all rights, title and interests the said Suleman Ismail & Co. had in the goods lost and not delivered by defendant". It was added further that‑ "the said Suleman Ismail & Co. have allowed the said Insurance Company to file the suit in their (i.e., the plaintiffs') name. Letter of subrogation is attached herewith and marked `A'." In fact, no letter of subrogation was either attached with the plaint or produced subsequently. If there had been such a letter, the difficult question which has been discussed at such great length before the High Court and again before this Court would never have arisen, for it is well‑settled in the law relating to marine insurance that the common law right of the assured to claim damages against a tort‑feaser may be transferred to an insurer, by assignment, and it is also clear that the assured may authorize the insurer to institute a suit against the tort‑feaser in the name of the assured. In either of these cases, the right of the insurer to sue would have been secured, but in the present case, after stating that they were suing under written authority from the assured, and professing to possess such authority, the Insurance Co. failed to establish either assertion and at the appellate stage, they were obliged to rest their right to sue upon the mere fact of subrogation, for which reliance was placed upon section 135‑A of the Transfer of Property Act. Some assistance towards the Insurance Co. being placed in this difficulty was, of course, derived from the failure of the tort‑feaser company to appear and contest the suit, which was decided on the basis of evidence in the form of documents and affidavits. The question was raised at a late stage of the argument before us that in acting upon evidence so received, the trial Court had not proceeded in accordance with the rules governing the safe dispensation of justice. Even though the defendant‑company had failed to appear a contest the suit, it was nevertheless the duty of the Insurance Co. to establish that loss had in fact taken place, that the loss was evaluated in terms of money, and that this had been done in such manner as to inspire confidence. There can be no doubt of the duty of the Court to ensure, event when proceeding ex parte, that its decision is in accordance with A the facts, which, should be ascertained with as much care as is ~ possible in the absence of any contesting party. In the present case, however, there seems no occasion to doubt that the fact of the loss and the evaluation of the goods which were lost was carried out according to recognised principles applicable to contracts of marine carriage, and the practice in marine insurance. The survey report in Lloyds standard form has been placed on the record, and shows that the survey was carried out by Messrs James Finlay & Co. as Lloyds Agents. It is also clear from the correspondence that Messrs James Finlay & Co. were the local agent at Chittagong of the defendant‑company. In these circum stances there can be no doubt that the interests of the defendant company as carriers and alleged tort‑feaser, were in safe hands at Chittagong where the loss appears to have taken place and there therefore need be no doubt that the loss was duly ascertained and evaluated. The sole question that remained was not raised at the trial stage, and was only brought up in appeal, namely, whether the suit was competently brought by the Queensland Insurance Co., in the absence of any document of assignment in their favour of the rights of the assured in respect of the loss which they had themselves made good under the contract of insurance, and in the absence of the assured from the suit. This question has been examined at considerable length in the judgment delivered in the High Court and those which have been prepared by my learned brethren. The view which I am inclined to take is that the question turns upon the meaning to be attached to the word "subrogation" as used in section 135A of the Transfer of Property Act. For this purpose, aid may be derived from the use of the same expression in section 92 of the same Act. Subrogation is a conception in equity in the sense that it assumes something to have been done which, for the purposes of justice in the case, ought to have been done. Thus, equity has from early times recognised the assignment of actionable claims, described in English Law as choses‑in‑action. In Mulla's Transfer of Property Act, third edition, at page 770 will be found a reference to an early English case that of Rodick v. Gandell ((1852) 1 De G & M 763, 777‑778, 12 Veav. 325), in which it was held that an agreement between a debtor and a creditor that the debt should be paid out of a certain sum which was coming to the debtor, or an order given by the debtor to his creditor authorizing a third person holding funds belonging to the said debtor to pay a certain sum to the creditor, are sufficient to create "a valid equitable charge upon such funds; in other words will operate as an equitable assign ment of the debts or funds to which the order refers". In the cases assumed, the debtor had a right to receive money from the third party which was a common law right personal to himself, and under the common law, that right could only vest in the creditor. If there had been a written assignment of such right, it would have failed in law on the principle that a mere right to sue cannot be assigned, but in equity, debts were assignable so much so that even contingent interests and future property could be assigned for valuable consideration. In Mulla's Transfer of Property Act, there will be found references to a number of cases in which it has been held that an assignee in equity could sue in his own name provided there was consideration for the assign ment. At one time, in England the law did not permit the assignee to sue the debtor in equity in his own name, but he was obliged to sue under the common law in the name of the assignor, unless the assignor had refused to allow him to do so. The law in this respect was changed in England in 1873, and since that time the assignment of a legal chose‑in‑action by a writing of which express notice has been given to the debtor is effective under law to pass the legal right to such debt or chose -in‑action "from the date of such notice, and all legal and other remedies for the same". (The quotation is from section 25, subsection (6) of the Judicature Act of 1873). It may be noticed that this section which has throughout been interpreted as enabling the assignee to sue in his own name, makes no reference to any right of suit, which must therefore be thought to be included within the expression "legal right to such debt" and the other expression "all legal and other remedies for the same". In English law there is a difference between "legal right" and "equitable right" and the section in question bad the effect of giving to rights which were previously rights in equity, the same status as rights in law, for the purposes of action under the Common Law. Under section 92 of the Transfer of Property Act provision is made for the acquisition of certain rights by a co‑mortgagor and by any one falling within one of three classes enumerated in section 91, namely, a person having an interest either in the mortgaged property, or in the right of redemption, secondly a surety for the payment of the mortgage debt and thirdly a creditor of the mortgagor who has in a suit for administration of his estate obtained a decree for sale of the mortgage. Each one of these persons is entitled, a co‑mortgagee by virtue of his position as such, and the other three by virtue of section 91 to redeem the mortgaged property and section 92 provides that when any such person redeems any mortgaged property he shall have "so far as regards redemption, foreclosure or sale of such property, the same property rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee". The section goes on to say that the right conferred by this section is called the right of subrogation and the person acquiring such right is subrogated to the right of the mortgagee whose mortgage he redeems. There are other provisions in section 92 which I need not refer to, but I would like to refer to portions of the commentary in Mulla's Transfer of Property Act under this section at page 556 and to reproduce a passage therefrom which in my view are of assistance in understanding the nature and the quality of subrogation. Subrogation has been described in certain judgments as meaning substitution, since the person redeeming is substituted for the incumbrancer whom he has paid off, and one of its categories is legal subrogation or subrogation by operation of law, which arises when a person who has in the property an interest of his own to protect, discharges a prior incumbrance. Then on page 557 the learned commentator has made the following observation with reference to subrogation by operation of law :‑ "The distinguishing feature of subrogation is that the incumbrance that is paid off is not extinguished but is treated as kept alive and assigned to the person making the payment". (the italicising is mine). It was seen that in the early case of Rodick v. Gandell also, a similar expression was used. By certain actions of a debtor, a valid equitable charge was created upon certain funds not in his possession but to which he was entitled, and it was held that by such action the effect was created of "an equitable assignment of the debts or funds to which the order refers". Here I may observe that although section 91 gives by expression the right to "institute a suit for redemption" to the persons besides the mortgagor who are vested by the section with the right to redeem, yet such a provision would not be thought to be necessary in the case of those persons among the enumerated categories who could be deemed to have an interest in the mortgaged property. The express provision of a right to sue would thus be necessary only in the case of the two last‑mentioned categories under section 91, namely, sureties for the payment of the mortgage debt and creditors holding a decree for sale of the mortgaged property obtained in a suit for the administration of the mortgagor's estate. It is in this sense that, in my opinion, the provision in section 92 that the persons redeeming shall have "the same rights as the mortgagee whose mortgage he redeems", is to be understood, and it is necessary that this expression should be fully appreciated since it constitutes the substance of the "right of subrogation" which the section purports to create. By section 92, the person having the right of subrogation is, by expression, vested with an interest in the land which is the subject of the mortgage, and his right to sue, or to defend a suit brought against him, in respect of the land which is the subject of the mortgage, is derived from his possession of such interest, and not by virtue of section

91. Indeed, it is arguable, that the right of suit conferred by section 91 is antecedent to and altogether distinct from any right of suit which may be acquired by subrogation under section 92. 1 say this, with respect to the contrary view which has been expressed by my learned brother Hamoodur Rahman, J. to whose opinions on legal questions I attach the greatest value. The foregoing, discussion enables me to come to the conclusion that the assignment which is effected in equity by subrogation within the terms of section 92 is not an assignment, of a mere right to sue, which might require to be protected against avoidance under section 6(e) of the Transfer of Property Act. It is valid as an assignment of a vested interest in real property. In the case of marine insurance the question is not quite so simple since the property involved is usually movable and what is sought by way of action is generally damages for loss of such property. But in this respect also it seems to me necessary to note that a claim in respect of loss under a contract of carriage by sea cannot be described as a mere right to sue. It has on the other hand, in my opinion, all the incidents of an actionable claim which is capable of being transferred by assignment. It might be said that after breach of a contract for the carriage of goods resulting in failure of delivery of part or of all the goods, nothing is left but a right to sue for damages, and such a right cannot be transferred. On the other hand, before the breach has taken place, there can be a transfer of a beneficial right in such an executory contract and the transferee would be entitled to sue. Further, it is conceivable that by action following the loss, the right of recovery may be given a concrete shape by ascertainment of the value of the undelivered goods by a recognised and reput able process. It is well‑settled that if a sum of money is due from a person, that amount is recoverable on assignment by an assignee of the debt even though a calculation may be necessary to ascertain the exact amount. Equally, the right to recover a debt in a definite amount due from an agent may be validly assigned. Now, in relation to policies of marine insurance, it is necessary to observe that there is a recognised and established procedure by which losses in transit which are recoverable under such policies are ascertained. What was done in this case was that the loss was immediately reported to the local Lloyds Agents, and they after having the loss ascertained and its value assessed through a surveyor, issued a certificate showing details of the loss and the value thereof. This, as between the parties, constitutes prima facie proof of the loss and the practice excludes the possibility of any collusion between an insurer and the assured, to the detriment of the tort‑feaser. That is not to say that in a suit against the latter for recovery of the amount of indemnity paid by the insurer, the tort‑Teaser will not have the right to challenge the correctness of the figures noted in the certificate. The fact of the loss having been duly investigated and evaluated in terms of money in accordance with generally accepted procedure and by reputable methods, and the further fact, namely, that a specific sum of money has been paid by the insurer to the assured as indemnity for his loss, are however sufficient to convert the claim for damages at large into an actionable claim, which carries with it, the right to sue. In the view which I am inclined to take, upon the happening of these events, the right of the assured is first converted into a right to a certain or definite sum of money, and notwithstanding that he is there after actually compensated to that extent, on the principle of subrogation by operation of law, the right to such ascertained amount is not extinguished "but is treated as kept alive and assigned to the person making the payment". It has been seen that for the purpose of the law and practice g of the English Courts, it was necessary to provide by statute for equitable right of this kind to be converted into a legal right enable the assignee to sue at common law in his own name. In Pakistan, such a complication does not have to be faced. The Courts of law are also Courts of equity, and a right in equity such as that possessed by an assignee who has may a good a loss evaluated in terms of money would be deemed to include the right to sue in respect of the property which has been assigned to him. I say "property" because in the sense in which I regard such a claim as that in the present case, it. is no mere right to sue, but is an actionable claim. The present case falls under subsection (3) of section 135A of the Transfer of Property Act squarely, for here the insurer, namely the Queensland Insurance Co., has paid the assured for a loss, and has been thereupon subrogated to the rights and remedies of the assured person, to the extent that the insurer has indemnified him for his loss. In the sense in which I understand the incidents of subrogation, as explained above, there has been by subrogation, an acquisition by the insurer of the rights and remedies of the assured, and one of these rights certainly was to sue for the loss incurred by the assured. As has been seen, notwithstanding that the assured has been compensated for his loss, his right to recover that amount from the tort‑feaser is, by operation of law, kept alive in favour of the party by which he has been indemified, namely, the insurer. It remains to consider the effect of certain provisions contained in section 130A and section 135A upon the question for decision in this case. Section 130A enables transfer by assignment of a policy of marine insurance, and by subsection (4) declares that the rule that a mere right to sue cannot be transferred shall have no effect upon this provision. The question may be asked‑does not this section have the effect of requiring that if a party seeks the benefits of assignment of a policy of marine insurance, it must comply with the provisions of this section?‑-in other words, that it must provide itself with an assignment in writing? The section is not worded in mandatory terms, nor is the subject‑matter such that by the use of the expression "may be transferred" the sense is necessarily to be inferred that a transfer can only be effected by written assignment and never by operation of law. As to the avoidance of the prohibition against transfer of a mere right to sue, I do C not think that it is needed to cover every case falling within the section, and indeed, it would only need to be invoked in a somewhat remote case, on the view which I have expressed above. For before loss, a policy of marine insurance is a contract of indemnity of a contingent character and the benefits of such a contract may be validly transferred. After loss, on account of the settled practice in relation to marine insurance, the assignment must be deemed to take place of a sum of money duly ascertained, and that too constitutes an actionable claim and not a mere right to sue. In section 135A again, subsection (4) avoids the effect of the prohibition against transfers of a mere right to sue, and I would construe this provision in the same sense, namely, that its use would probably be necessary only in some remote case, when on account of the special circumstances, the claim of the insurer is based upon a mere right to sup, Such an eventuality may arise from a great variety of circumstances, and even from the incidents of litigation. An example may be found in the early English case of London Assurance Co. v. Sainsbury ((1873) 3 Dougl. 245=99 E R 636). For destruction of his property which had been assured, the assured person obtained a certain amount as indemnity from the Insurance company by way of indemnity after which he sued the hundredors (that is the community) for compensation for his loss, which had been occasioned by a riot. Contrary to the direction of the Judge, the jury in assessing compensation, by their verdict directed that there should be deducted the amount paid to him by the Insurance Company. When the latter company filed suit against the hundred to recover the amount paid by it as indemnity to the assured, it was non‑suited on the ground that it could not file the suit in its own name, but only in the name of the assured person. The case has been referred to and extracts from it have been quoted in the judgment of the High Court at some length and I do not propose to make any further quotations here. I mention the case because it seems to me to be clearly one in which the final result, namely failure of the claim, was due to the particular forms in which the two suits were brought. In the argument for the hundredors, in the Company's suit, learned counsel had urged‑"in this case; that (i.e., the Company) should, if they were dissatisfied with the verdict in Langdale's case (i.e., the first suit) have taken the sense of the Court upon it . . Langdale properly brought his action for the whole loss, and no person can sue after him". The final decision did not turn upon this aspect of the case, nor upon a further aspect, namely that when the assured had actually exercised his right of action to respect of the amount of his loss, including the part covered by the indemnity he had already received, it would be difficult thereafter for the Insurance Company to claim that any part of the right remained available to it, to be exercised by suit. The right of suit against tort‑feaser might appear to have been exhausted by exercise in its entirety, when the assured brought his suit against the hundredors. The judgment delivered by the learned and distinguished Judges in the case turned on the question whether a right of action is susceptible of being transferred, and the hardship of the case was recognised, but the point was apparently not considered whether after a right of suit in respect of a certain claim had been exercised under common 13w, it is conceivable that that right could yet in part, have endured in equity through an assignment by operation of law. Accordingly, while the London Assurance Co. case might provide, in a certain aspect, an instance of failure of assignment or 'a mere right to sue, it does not avail as a precedent where the assignment conveys more than a mere right to sue, that is, as in the present case, it transfers an actionable claim, carrying with it, a right to sue, and consequently standing in no need of the saving provided by subsection (4) of section 135‑A of the Transfer of Property Act. S. A. RAHMAN, J.‑--The question raised on this certificated appeal is whether the subrogee of an assured person can sue one 14 responsible for the loss, in his own name or must sue in the name of the assured. The question has arisen in the following circum stances. The appellant was the carrier of goods which were booked by Suleman Ismail & Company from Karachi to Chittagong, per s the appellant's ship "Fakirjee Cowasjee". The goods in question had been insured with the respondent, the Queensland Insurance Company. At the port of destination, two out of twenty five packages booked, were discovered to be completely empty. A claim of damages was made on account of this partial loss from the appellant by the sender of the goods. The appellant refused to accept liability but the insurer, namely the respondent, agreed to indemnify the sender fully and paid the sum of Rs. 8,070‑5‑0 which had been claimed. Thereupon the respondent was subrogated to all rights and remedies of the insured person by virtue of subsection (3) of section 135A of the Transfer of Property Act and sued the appellant for the recovery of Rs. 8,070‑5‑

0. The appellant appeared and put in a written statement in defence to the suit, but then absented itself and allowed the suit to be decreed ex parte against it. An appeal was taken against this decree to the West Pakistan High Court, Karachi Bench, on the plea that the respondent was not entitled to sue in its own name for the damages payable to the assured and for which the latter had been indemnified by payment. This plea was repelled by the High Court who affirmed the decision of the trial Judge but granted a certificate for appeal to this Court. It appears that in the plaint the insurer had set up a claim as assignee of the assured but this position was not substantiated by any documentary evidence and the claim of the respondent therefore rests entirely on the provisions of section 135A of the Transfer of Property Act. There was a statutory subrogation of the rights and remedies available to the assured, in favour of the respondent, under subsection (3) of that section in the instant case. It is somewhat remarkable that even in the written statement filed in the trial Court on behalf of the appellant, no specific point i, was raised that the plaintiff‑respondent could not sue in its own name. However, as it was a pure question of law it was allowed to be argued in the High Court and in this Court. Mr. Dorab Patel who appeared for the appellant, has invited our attention to several English rulings which lay down that under the strict rules of the common law, the right to reimburse ment by the insurer, must be asserted in the name of the assured. The term "subrogation" having been borrowed from the English Law, it is contended that it must be understood in the same sense as has prevailed in England. As is clear from the observations of Lord Penzance in Simpson v. Thomson ((1877) 3 A C 279), these decisions proceed on the basis that the insurer has a merely equitable interest and has no right of action at law in himself. He gets an equitable right of subro gation after indemnifying the assured completely. That is why, in equity, the insurer could compel the insured to lend his name for the litigation so as to make the suit competent. The right of the assured to sue was regarded as a chose‑in‑action. Under Common Law choses‑in‑action were not assignable. In the words of Lord Mansfield, "as against the person sued, the action cannot be transferred"‑London Assurance Co. v. Sainsbury ((1873) 3 Dougl. 245, 254=99 E R 636). That case in fact reveals a conflict of judicial opinion on the point in question. The King, however, could grant or receive a chose‑in‑action. If the King granted an annuity, the grantee could bring an action in his own name and certain specified classes of choses‑in‑action became assignable by custom and by statutes. Equity from early times had acted on the principle that that should be regarded as done which ought to be done and recognised assignment of choses‑in‑action. "Legal choses‑in‑action" came eventually to be enforceable by action at law, e.g., promissory notes, bills of exchange and policies of insurance. Equitable choses‑in‑action, sometimes called "choses in equity" were enforced by action in equity, e.g., a beneficial interest in a partnership or an interest in a trust fund. The assignor's remedy was hide‑bound by restrictive rules. He had to sue at law in the name of the assignee on giving him an indemnity against costs. In equity he could sue in his own name but there had to be consideration for the assignment and the action in equity was not possible but an action had to be brought in the name of the assignors, unless the latter had refused to allow the assignee to sue in his name. Section 25 (6) of the Judicature Act 1873 (later substantially re‑enacted in section 136 of the Law of Property Act 1925) changed the procedural law and afforded a new method of enforcing old rights based on an absolute assignment in writing. Under such an assignment, it was declared, the legal right to a debt or chose‑in‑action assigned, would pass along with all legal and other remedies, to the assignee, from the date of notice in writing to the debtor or other relevant person. Section 130 of our Transfer of Property Act apparently embodies some of the features of statutory as well as the equitable modes of assignment of English Law. This section prohibits transfer of actionable claims except by an instrument in writing but it specifically excludes marine or fire policies from its purview and they are dealt with in section 135 of the Act. In the case of insurance policies, in the absence of a formal assignment of the right of action, under English Law, the insurers cannot sue the third party in their own names. They must bring the action in the name of the assured and it is the duty of the latter, on receiving a proper indemnity against costs, to permit his name to be used in such action see Halsbury's Laws of England Third Edition, Vol. 22, para.

516. The assured remains dominus litis under the English Law until he is fully indemnified and he is entitled to control any proceedings brought in his name till then. At the same time it is laid down that the assured must conduct the litigation with proper regard for the insurers' interest and will be liable in damages for any misconduct or for any abandonment of rights. If the assured recovers judgment, the insurers have a lien thereon for the amount to which they are entitled to be subrogated. If the assured upon a tender of proper indemnity as to costs., refuses to give the use of his name for the action, the insurer can, by proceedings in equity, compel him to do so and since the Judicature Act, 1873, instead of taking double proceed ings, the same purpose can be effected by joining the assured as defendant in an action brought in the name of the insurers against the parties liable. (MacGillivray on Insurance Law, 1953 Edition, paragraph 1697, 1698). After the assured has received complete indemnity the insurer is dominus litis in respect of future proceedings (paragraph 1699, of the same book). MacGillivray also expresses the opinion in paragraph 1636 of his treatise that though the legal right to compensation remains in the assured, and therefore, unless there has been an express assignment of the legal right, actions at law brought for the benefit of the insurer are brought in the name of the assured, yet in Courts of Equity or of Admiralty the insurer has always been allowed to sue in his own name. Under this paragraph, some authorities are quoted from the American jurisdiction, e.g., St. Louis Railway v, Commercial Insurance ((1890) 139 U S 223). Liverpool Steam Co. v. Phoenix ((1888) 129 U S 397, 462 ) anti Garrison v. Hemphis Insurance ((1856) 19 How U S 312.). It would thus appear that the rule which makes it incumbent for the insurers even after indemnifying the insurer to sue in the name of the latter, rests on a procedural technicality of the English Law, which makes a distinction between legal and equit able rights. The rule seems to relate more to procedural form than to substance. In our procedural law no such distinction exists between equitable and legal rights for the purpose of suits. Subsection (3) of section 135A of the Transfer of Property Act, reads as follows : (3). Where the insurer pays for a partial loss, he acquires no title to the subject‑matter insured, or such part of it as may remain, but he is thereupon subrogated to all rights and remedies of the insured person as from the time of the casualty causing the loss, in so far as the insured person has been indemnified by such payment for the loss". In subsection (4) of this very section, it is laid down that nothing in clause (e) of section 6 of the Act shall affect the provisions of this section. Clause (e) of section 6 provides that a mere right to sue cannot be transferred. It was suggested that this sub section (4) governs only subsection (1) of section 135A, which relates to assignment of a policy of marine insurance such as enables the assignee to sue thereon in his own name. The context however does not appear to justify any such restriction and it would seem that it would apply equally where by operation of law under subsections (2) and (3) of this section, the insurer) is subrogated to all rights and remedies of the assured. The word "subrogation" occurs also in section 92 of the Transfer of Property Act and that section might provide some guidance as to what the Legislature might have had in mind when enacting section 135A. The section is set out below :‑ "

92. Any of the persons referred to in section 91 (other than the mortgagor) and any co‑mortgagor shall, on redeem ing property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee. The right conferred by this section is called the right of subrogation, and a person acquiring the same is said to be subrogated to the rights of the mortgagee whose mortgage he redeems. A person who has advanced to a mortgagor money with which the mortgage has been redeemed shall be subrogated to the rights of the mortgagee whose mortgage has been redeemed, if the mortgagor has by a registered instrument agreed that such persons shall be so subrogated. Nothing in this section shall be deemed to confer a right of subrogation on any person unless the mortgage in respect of which the right is claimed has been redeemed in full." It would appear that section 92, also contemplates cases of statutory or legal subrogation without a formal assignment by the person in whom the right to sue inhered. In these cases, it has never been held that a person subrogated to the rights of the mortgagee will have to sue in the name of the latter. He has always been allowed to bring the action in our Courts in his own name. Under Order XXXIV, rule 1 of the Civil Pro cedure Code the only obligation on him is to implead all parties interested in the mortgage security or in the right of redemption. If this is the position in respect of the subrogee of a mortgagee, I do not see why the position should change in respect of a legal subrogee under section 135A of the Transfer of Property Act. All that can be said is perhaps that the assured ought to have been impleaded in this suit even though he had been indemni fied. No suit however can fail by reason merely of misjoinder or non joinder of parties (Order I, rule 9, C. P. C.). In the instant case, the assured would have been merely a proper party and not a necessary party in so far as the insurer would not claim any relief against him. If on being impleaded as a party he absents himself after notice and takes no interest in the proceedings, I do not see how the situation will be different from one where he had not been impleaded at all. There will be no real difficulty in the insurer or the defendant leading proper evidence considering that the insurer or the defendant can examine the assured if necessary as a witness or obtain discovery of relevant documents from him by appropriate process. The insurer is invested with the right to sue subject to all the equities and his rights are no more and no less than those .of the assured. All defences available against the assured would also be open to the defendant against the insurer. On any consideration, therefore, it does not seem that the insurers' suit should be thrown out on the technicality that he has not brought the suit; in the name of the assured. That would be really making a fetish of procedure. After all, the facts stated in the plaint; itself would make it amply clear that the cause of action was the loss caused to the assured by the conduct of the defendant and the fact that it was covered by an insurance policy issued by the plaintiff. The view that the insurer in such a case ought to be allowed to sue in his own name was taken by the Calcutta High Court in Alliance Assurance Co. Ltd. v. The Union of India (62 C W N 535). The American Courts too have refused to follow the technical proce dural rule of English Law. The following extract from Corpus Juris Secundum, section 1215, Vol. 46 may be found instruc tive :‑ "The right of action against the wrong‑doer responsible for the loss vests in insurer who fully compensates insured, which, however, at common law must be asserted in an action institut ed in the name of insured for the use and benefit of insurer; and insurer may use the name of insured without his consent, having the right to do so by virtue of the subrogation. In equity or admiralty, or under the modern practice which allows the real party an interest to sue, this right may be asserted by the insurer even though insured does not have the power or capacity to sue the tort‑feaser; an insured need not be made a party to the action". Practically similar views have been expressed by the author of American Jurisprudence, Vol. 29, para. 1356 at p. 1015. I do not think it is necessary to adopt the rule of English Law as a rule of justice, equity and good conscience in this country as seems to have been done by Constantine, J., in Queensland Insurance Co. v. British India Steam Navigation Co. Ltd. (P L D 1958 Kar. 389). Subrogation is after all a right of substitution. The right a well as the remedy gets transferred to the subrogee by operation, of law. Why should such a person be held debarred from enforcing the remedy in his own name? As H. G. Hanbury says in his book on Modern Equity at p. 485 (6th Edition) "the principle of subrogation is that one person is put exactly into the position of another, for the purpose of enabling him to enforce rights against a third party which that other person has become disentitled from enforcing. It is applied extensively by the Common Law in contracts of marine and fire insurance and helps to preserve the character of those contracts as contracts of indemnity. Stroud's Judicial Dictionary (3rd Edition) under the term `subrogation' has a quotation from Dixon on subroga tion of which the first sentence reads :-- "Subrogation is the substitution of another person in the place of a creditor to whose rights he succeeds in relation to the debt". In the words of Brett, C. J., in Castellain v. Preston ((1883) 11 Q B D 380 C A) "the insurer must be placed in the position of the assured". Having full regard to the provisions of the Transfer of Property Act and on principle, I am inclined to the view that the decision of the High Court was correct in the present case. In my opinion, therefore, the appeal fails and ought to be dis missed. FAZLE AKBAR, J.‑This appeal raises the question; whether an insurer while exercising his right of subrogation can sue in his own name. In order to appreciate how this question has arisen it is neces sary to state the facts of the case. Queensland Insurance Company (hereinafter referred to as `the Insurance Company') instituted a suit in the Chief Court of Sind against Messrs East and West Steamship Company (here inafter referred to as `the Shipping Company') for recovery of Rs. 8,070‑5‑0 for short delivery of two packages of cott on piece goods under the following circumstances. In January 1953, Messrs Suleman Ismail & Co., of Karachi transported 25 packages of Cotton piece goods from Karachi to Chittagong by the appellant's vessel `S. B. Fakirjee Cowasjee' under a bill of lading No. 51 dated 2nd January 1953. The said consignment was covered against all leases under a Policy of Marine Insurance taken out by the consigner from the Insurance Company. On or about 30th January 1953, the ship discharged the cargo at Chittagong but 2 out of 25 packages were landed short. Messrs Suleman Ismail & Co., claimed for Rs. 8,070‑5‑0 as compensation for short landed goods. Their claim was however, repudiated by the Shipping Company and the Insurance Company had to pay the said sum to the insured. As notwithstanding repeated demands the Shipping Company refused to pay the said amount to the Insurance Company, the latter filed a suit for recovery of the said sum of Rs. 8,070‑5‑

0. By way of defence the Shipping Company denied negligence and liability altogether. They however, did not appear at the hearing of the suit and an ex parte judgment was entered for the plaintiff for the amount claimed. In the memorandum of appeal filed by the Shipping Company they raised two objections, namely (i) that the suit was not maintainable in the name of the Insurance Company; and (ii) that in the absence of sufficient and satisfactory proof of the damage sustained by the consigner the trial Judge was not justified in decreeing the suit of the Insurance Company. At the hearing of the appeal they however, confined their argu ment to objection No. (i) only. The High Court held that "on the plain language of section 135A(2) and (3) an insurer in the absence of any statu tory bar is entitled to enforce the right of an insured person in his own name and there is no justification to place him in disadvantageous position on the basis of an artificial barrier recognised in English Law which is no longer the source of basis of his claim." In this view of the matter the learned Judges dismissed the appeal. The Shipping Company has therefore, appealed to this Court. Mr. D. Patel, the learned counsel for the appellant has contended that the Insurance Company is not entitled to main tain the suit in its own name by virtue of the provisions of section 135A of the Transfer of Property Act. Section 135A of the Transfer of Property Act is as follows 135A. (1) Where a policy of marine insurance has been assigned so as to pass the beneficial interest therein, the assignee of the policy is entitled to sue thereon in his own name ; and the defendant is entitled to make any defence arising out of the contract which he would have been entitled to make if the action had been brought in the name of the person by o r on behalf of whom the policy was effected. (2) Where the insurer pays for a total loss, either of the whole, or, in the case of goods, of any apportionable part, of the subject‑matter insured, he thereupon becomes entitled to take over the interest of the insured person in whatever may remain of the subject‑matter so paid for, and he is thereby subrogated to all the rights and remedies of the insured person in and in respect of that subject‑matter as from the time of the casualty causing the loss. (3) Where the insurer pays for a partial loss, he acquires no title to the subject‑matter insured, or such part of it as may remain, but he is thereupon subrogated to all rights and remedies of the insured person as from the time of the casualty causing the loss, in so far as the insured person has been indemnified by such payment for the loss. 4) Nothing in clause (e) of section 6 shall affect the provi sions of this section. Subsection (1) confers an independent right of suit on the assignee of a marine Insurance policy. There being no assign ment In this case, the provisions of subsection (1) will not be attracted in this case. Subsection (2) lays down that by paying total loss either of the whole or of any apportionable part of the subject‑matter the insurer shall be subrogated to all the rights and remedies of the insurer in the subject‑matter as from the time of the loss. Subsection (3) deals with the question of subrogation in the case of partial loss and subsection (4) provides that clause (e) of section 6 of it shall not affect any of the provisions of this section. In this case the insurer paid partial loss for two packages and thus in accordance with the provisions of subsection (3) acquires no title to the subject‑matter, but is subrogated to all rights and remedies of the insured as from the time of the casualty causing the loss. Mr. D. Patel has contended that by the mere fact of subro gation the insurer is not entitled to enforce the right in their own names. In support of his contention he has relied on paragraph 701 of Halsbury Laws of England, Volume 18, Second Edition, page 469 wherein it is stated that "in the absence of formal assignment of a right of action the insurers cannot sue a third party in their names and that they must bring the action in the name of the assured." It is true that English Common Law Courts have considered the right of action of the insured to be a personal right which is not capable of being transferred to the insurer merely by subrogation. This is very clear from the following observations in the case of Simpson & Co. v. Thomson Bursell (1877)A C VOL-III,P.279. "In England the action must be in the name of the ship owner not of the underwriter. I think this material, as showing that it is the personal right of action of the ship owner, the benefit of which is transferred to the underwriters. In other systems of jurisprudence or it may in our own as altered hereinafter, the assignee of such a right may be able to sue in his own name." In the case of Yorkshire Insurance Company Limited v. Misbeth Shipping Company Limited ((1961) A E L R Vol. II, p. 487) Diplock, J., while dealing with the rights of a subrogee under section 79 of Marine Insur ance Act 1906, observed at page 490 "The expression "subrogation" in relation to a contract of marine insurance is thus no more than a convenient way of referring to those terms which are to be implied in the contract between the assured and the insurer to give business efficacy to an agreement whereby the assured in the case of a loss against which the policy has been made shall be fully indem nified, and never more than fully indemnified. Two consequences flow from this: first, "subrogation" is concerned solely with the mutual rights and liabilities of the parties to the contract of insurance. It confers no rights and imposes no liabilities upon third parties who are strangers to that contract. It vests in the insurer who has paid a loss to direct rights or remedies against anyone other than the assured. He cannot sue such parties in his own name (see Simpson v. Thomson) ; he is bound by any release given by the assured to a third party (see West of England Fire Insurance Company v. Isaacs)". Again at page 491 the learned Judge says "Since such remedies are personal to the assured they must be exercised in his own name. As the common law provides no method by which a person can be compelled to bring legal proceeding against another, recourse was needed by the insurer before the Judicature Acts to Chancery to compel the assured to allow his name to be used for legal proceedings against third parties in order to reduce the loss. But the duty of the assured to take proceedings to reduce his loss and the correlative right of the insurer to require him to do so was a contractual duty. The remedy for its breach, by com pelling the assured to allow an action to be brought in his name, was an equitable remedy in aid of rights at common law, and was alternative to the common law remedy of recover ing damages for breach of the duty." Mr. Patel has argued that subsections (2) and (3) of section 135A of the Transfer of Property Act being a verbatim copy of section 79 of English Marine Insurance Act, the English practice which is based on sound reasons should be followed in the Courts in Pakistan. The question therefore, is should this English practice also be adopted here on the same lines and on the same basis as has been found convenient in that country? Now the right of the assured to recover damages against a third person is not incident to the property in the thing insured but only a personal right of the assured and hence the Common Law Courts in England have insisted that the insurer must sue in the name of the assured. On the other hand as the insurer acquires a beneficial interest in the right of action of the assured in proportion to the sum paid by them towards the loss or damage, the Courts of Equity and Admiralty have allowed the insurer to assert their rights in their own names. Even in England the Common Law Court permitted the insurer to sue in his own name when such right was conferred by express assignment, aided by the terms of Judicature Act 40 Vict. C 86 See King v. Victoria Insurance Co. Ltd. (1896 A C 250). Now here the same Court exercises both equitable and legal jurisdiction. Furthermore, our procedure as regards non joinder and misjoinder of parties is somewhat different. Rule 9, Order I of the Code of Civil Procedure says that "No suit shall be defeated by reason of the misjoinder or non joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights ant's interests of the parties actually before it." This Rule makes it clear that misjoinder or non joinder of parties would not be fatal to a suit provided the suit was of such a nature that the rights and interests of the parties before the Court could be effectively disposed of. Furthermore, rule 13 of Order I says that "all objections on the ground of non‑joinder or misjoinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived." No doubt in a proper case a defect of necessary party may be dealt with by the Court, but in my view the present is not such a case. It has not been even suggested that in the absence of the assured the case could not have been disposed of effectively, or that the Shipping Company was prejudiced in any way. In this suit by the insurer in the right of the assured, all the defences which were available against the assured could have been taken by the Shipping Company against the insurer and as a fact they were taken in the written statement but they did not, however, chose to appear at the hearing of the suit. In view of the provisions of our Code and the fact that the same Court exercises both equitable and legal jurisdiction, I do not think the application of English rule could be justified in such a case. In this connection reference may also be made to sub section (4) of section 135A of the Transfer of Property Act which makes clause (e) of section 6 of that Act inapplicable to all the subsections of section 135A. As already stated subsections (2) o and (3) are verbatim copy of section 79 of English Marine, Insurance Act. It seems to me that the Legislature being conscious of the English practice of Common Law Courts that alt insurer could not sue independently in his own name attempted, to remove that bar by adding subsection (4) to section 135A. Lastly I may mention that the word `subrogation' has not been defined in the Transfer of Property Act. Hence the restricted meaning which has been given by the English Courts to the word `subrogation' in relation to a contract under Marine Insurance Act of 1906, may perhaps not be applicable here. The Privy Council while dealing with the question of subrogation under section 91 of the Transfer of Property Act in the case of Lala Man Mohan Das v. Janki Prasad and others (AIR1945PQZ3) observed : "The doctrine of subrogation is in essence a simple matter, It means the substitution of one creditor for another." If therefore, under section 135A the insurer is subrogated to all the rights and remedies of the assured and the bar of clause (e) of section 6, i.e., bar of transfer of the right to sue is also removed, I fail to see why they should not be permitted to sue in their own name. For the reasons stated above I am unable to accept the contention of Mr. Patel that in this case the Insurance Company was not entitled to sue in their own name. At the hearing of the appeal in the High Court the findings of the Court of first instance with regard to the quantum of claims which were manifestly warranted by Surveyor's report was not impeached. No attempt was also made before us to show that the said report was either manifestly wrong or was prepared on wrong basis. The arguments on the appeal were mainly confined to matter of procedure and practice and it was said that an insurer could not sue in his own name. I would, therefore, dismiss this appeal, but in view of difficult questions of law which have arisen in this case I would leave the parties to bear their own costs throughout. B. Z. KAIKAUS, J.‑--The facts relating to this appeal are not I complicated. Suleman Ismail & Company who are not a party to this appeal shipped twenty‑five packages of cotton piece goods on the appellant's ship "Fakirjee Cowasjee" for being carried from Karachi to Chittagong. These packages had been insured I with the respondent, i.e., The Qaeensland Insurance Company. ' At Chittagong two out of twenty‑five packages were found to be ', empty and Suleman Ismail & Company claimed damages from the appellant to the extent of Rs. 8,070‑5‑

0. The appellant repudiated its liability. The respondent, however, accepted its liability and paid the sum of Rs. 8,070‑5‑0 to Suleman Ismail & Company. The respondent then filed the suit out of which this appeal arises against the appellant for recovery of this sum of Rs. 8,070‑5‑

0. In the trial Court the appellant did file a written statement but later disappeared and an ex parte decree was passed against it by S. Moazzam Ali, Sub‑Judge Ist Class, Karachi, for the amount claimed. The appellant filed an appeal against this decree in the High Court of West Pakistan, Karachi Bench. The only point argued by the appellant as will appear from a statement in the judgment of the High Court was that the respondent was not entitled to sue in his own name for the damages to which the assured was entitled and that the suit must be filed in the name of the assured. This contention has been rejected by the High Court and is the sole question for decision before us. It would be convenient before proceeding further to re produce sections 130A and 135A of the Transfer of Property Act which run as follows :‑ "130A. (1) A policy of marine insurance may be transferred by assignment unless it contains terms expressly prohibiting assignment, and may be assigned either before or after loss. (2) A policy of marine insurance may be assigned by endorsement thereon or in any other customary manner. (3) Where the insured person has parted with or lost his interest in the subject‑matter insured, and has not, before or at the time of so doing, expressly or impliedly agreed to assign the policy, any subsequent assignment of the policy is inoperative: Provided that nothing in this subsection affects the assign ment of the policy after loss. (4) Nothing in clause (e) of section 6 shall affect the provisions of this section. 135A. (1) Where a policy of marine insurance has been assigned so as to pass the beneficial interest therein, the assignee of the policy is entitled to sue thereon in his own name; and the defendant is entitled to make any defence arising out of the contract which he would have been entitled to make if the action had been brought in the name of the person by or on behalf of whom the policy was effected. (2) Where the insurer pays for a total loss, either of the whole, or in the case of goods, of any apportionable part, of the subject‑matter insured, he thereupon becomes entitled to take over the interest of the insured person in whatever may remain of the subject‑matter so paid for, and he is thereby subrogated to all the rights and remedies of the insured person in and in respect of that subject‑matter as from the time of the casualty causing the loss. (3) Where the insurer pays for a partial loss, he acquires no title to the subject‑matter insured, or such part of it as may remain, but he is thereupon subrogated to all rights and remedies of the insured person as from the time of the casualty causing the loss, in so far as the insured person has been indemnified by such payment for the loss. (4) Nothing in clause (e) of section 6 shall affect the provisions of this section." The plaintiff respondent relies on section 135A subsections (2) and (3) of which provide that when payment is made by the insurer to the assured he is subrogated to all the rights and remedies of the assured. There was some argument before us as to whether it was subsection (2) or subsection (3) of section 135A which was applicable, but there is for the purpose of this case no difference between the two, because learned counsel for the plaintiff is relying upon subrogation which is provided for in both these subsections and not on the additional advantage to the insurer provided for in subsection (2) namely that he also takes over the interest of the assured in the subject‑matter. If subrogation to the rights and remedies of a person means that such rights and remedies are transferred to the subrogee, then obviously the insurer has in accordance with section 135A a right of action after he has paid the insurance money to the assured. It cannot be denied that ordinarily subrogation would have that effect. If we refer to any Law Lexicon we will find that subrogation means a transfer by operation of law to the subrogee of the rights of the person to whom he makes payment. In Aiyar's Law Lexicon "subrogation" is thus explained "Subrogation is the substitution of another person in the place of a creditor, so that the person in whose favour it is exercised succeeds to the rights of the creditor in relation to the debt. The doctrine is one of equity and benevolence, and like contribution and other similar equitable rights was adopted from the civil law, and its basis is the doing of complete, essential, and perfect justice between all the parties without regard to form, and its object is the prevention of injustice. The right does not necessarily rest on contract of privity, but upon principles of natural equity, and does not depend upon the act of the creditors, but may be independent of him and also of the debtor. "Subrogation is substitution of one creditor for another by operation of law and it is difficult to see how the substitution could be effective unless the new creditor was put in all respects in place of the party to whose rights he is subrogated. It is well established that the right to a cession or assignment of the security can be claimed by a person who, though not primarily liable to discharge a debt, is obliged to pay it for his own protection. The doctrine of "subrogation" is that one who has been compelled to pay a debt which ought to have been paid by another is entitled to exercise all the remedies which the creditor possessed against that other, and to idemnify from the fund out of which should have been made the payment which he made. Subrogation and assignment distinguished.‑A distinction must be observed between subrogation to and an assignment of a mortgage. "Subrogation is an act of law, and not of contract." It will be observed that subrogation in the concluding portion of this extract has been compared to assignment. The only difference pointed out between the two is that one is the result of contract and the other the effect of operation of law. Subroga tion is described as a substitution of one person for another in respect of the rights of that other. In Oxford English Dictionary subrogate is explained thus :‑ "Subrogate"

3. Law. To put (a person) in the place of, or substitute (him) for, another in respect of a right or claim; to cause to succeed to the rights of another; see subrogation 2. 1818 Colebrooke Obligations 176 when a bill of exchange is paid for the honour of any of the parties; the payer is thereby subrogated to the rights of the holder of the bill. 1866 Maclachlan Arnould's Marine Insur. III, vi. II

869. The abandonment, although its effect is to subrogate the under writers in the place of the assured, yet only does this to the extent of the insurance. 1882 Act 45 and 46 Viet. c. 61 section

68. The payer for honour is subrogated for, and succeeds to both the rights and duties of, the holder as regards the party for whose honour he pays. 1883 Law Rep. II Q. B. Div.

383. The insurer is entitled to be subrogated into those rights of the assured with (etc.) and following is the meaning of subrogation :‑‑ "Subrogation"

2. Law. The substitution of one party for another as a creditor; the process by which a person who pays a debt for which another is liable succeeds to the rights of the creditor to whom he pays it; the right of such succession. 1710 J. Harris Lex. Techn. II, Subrogation in the Civil Law, is putting another person into the Place and Right of him, that in any case, is the proper Creditor. 1818 Cole‑Brooke Obligations 120 A surety, paying a debt without requiring subrogation or cession of the creditor's rights, has thereby extinguished the debt. 1866 Maclachlan Arnould's Marine Insur. III. vi. II.

875. The bottomry lender, who has become his creditor by the effect of this entire subrogation 1910 Encycl. Brit. (Ed. 11) XIV. 679/2. The payment of a partial loss gives the underwriter a similar subrogation but only in so far as the insured has been indemnified in accordance with law by such payment for the loss." In the Transfer of Property Act "subrogation" appears in section 92 also which it will be convenient to reproduce : "

92. Any of the persons referred to in section 91 (other than the mortgagor) and any co‑mortgagor shall, on redeeming property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee. The right conferred by this section is called the right of subrogation, and a person acquiring the same is said to be subrogated to the rights of the mortgagee whose mortgage he redeems. A person who has advanced to a mortgagor money with which the mortgage has been redeemed shall be subrogated to the rights of the mortgagee whose mortgage has been redeemed, if the mortgagor has by a registered instrument agreed with such persons shall be so subrogated. Nothing in this section shall be deemed to confer a right of subrogation on any person unless the mortgage in respect of which the right is claimed has been redeemed in full." It is not contended before us that under section 92 the subrogee cannot file a suit in his own name. With this meaning of subrogation and with the provisions in section 135A that the insurer is subrogated to all the rights and remedies of the assured, prima facie there does not appear to be any objection to right of suit of the insurer. If the rights as well as remedies (and remedies are against other persons) of the assured pass to the insurer there remains nothing with the assured and everything passes to the insurer. However, it had been urged before the High Court and it is urged before us that whatever meaning the word "subrogation" may have in relation to other subjects so far as the rights of an insurer in a marine insurance are con cerned, "subrogation" means only this that the insurer is on payment of the insurance money entitled to file a suit not in his own name but in the name of the insured for realisation of the amount due from a third party. Section 135A it is urged was enacted as the statement of objects and reasons shows with the object of bringing the Indian Law in conformity with English Law. It is pointed out that sections 130A and 135A are verbatim reproductions of what is contained in sections 50 and 79 of the Marine Insurance Act, 1906. In accordance with English Law, it is urged, an insurer, in spite of the fact that he was subrogated to the rights and remedies of the assured, could file a suit only in the name of the assured and this was the position in England before as well as after the Marine Insurance Act. Section 135A, therefore, it is contended, does not, in spite of its apparent wording enable the insurer to file a suit in his own name for recovery of the sum due. It appeared to me when the hearing of this case commenced that the matter before us could be decided on a simple explana tion of the concepts involved in right and remedy and the impossibility in our procedural law of a suit by one person in the name of another in cases not provided for by our procedural law. In view, however, of the fact that the matter has been argued at considerable length here as well as in the High Court and also in view of the fact that there exists even a divergence of opinion on this point. I think it will be proper to enter into a full consideration of the state of English Law on this point. I will state first what the English Law was before the Marine Insurance Act, 1906, came into operation. It is correct that before 1906 the insurer could in the Common Law Courts file a suit not in his own name but in the name of the assured. But what did this imply? Was there some peculiar substantive lo right which could be enforced only by a suit in the name of another? The answer is in the negative. When it was said that the insurer could not file a suit in his own name it meant only as Lord Penzance pointed out in Simpson 8c Company v. Thomson, Burrel ((1878) 3 A C 279) that the insurer had no right of suit at all. This is what the Law Lord said :‑ "But the ground upon which I will ask your Lordships to reject this contention of the respondents' counsel is this‑that upon the cases cited no precedent or authority has been found or produced to the House for an action against the wrong‑doer except in the name, and therefore, in point of law, on the part of one who had either some property in, or possession of, the chattel injured. On the other hand, the existence of authorities in which the suit has been brought in the name of the owner, though for the benefit of persons having a collateral interest, is somewhat strong to show that such persons had no right of action in themselves. For it is to be presumed that a person having such a right would pursue it directly, and not indirectly through the name of another." In fact it should not be difficult to appreciate that if a person had a right there will be no meaning in saying that he could not enforce that right and for enforcing it he must use the name of another. What was the basis of the proposition that the insurer possessed no right of suit? The basis was as will appear from the earliest case the report of which is full i.e., London Assurance Co. v. Sainsbury ((1873) 3 Dougl. 245, 254 = 99 E R 636) that the assured had only a right of action and this right of action was not transferable. In that case although opinion was divided on the question as to whether the insurer had a right of suit, two learned Judges holding that he had such a right and two holding that he did not possess such a right, all the four learned Judges agreed that the right of action belonging to the assured could not be transferred. Buller, J. said: "a right of action could not be transferred". Lord Mansfield observed "as against the person sued the right of action could not be transferred nor the defence varied." Ashurst, J. said "although a right of action could not be transferred yet two persons may have a right of action for the same injury." Willes, J. said : "I admit that a man cannot transfer his right to a chose‑in‑action." The suit was decided in this case against the insurer because the Judges were equally divided. It was the untransferability of the right to sue that led to the dismissal of the suit. It was clearly envisaged, therefore, that the right of action was in the assured only and that it could not pass to the insurer. That the legal right remains with the assured will also appear from the following statement in MacGillivray on Insurance Law : " "1686. Legal chose‑in‑action remains with assured. The legal right to compensation remains in the assured (d), and, therefore, unless there has been an express assignment of the legal right, actions at law brought for the benefit of the insurer are brought in the name of the assured (e). In Courts of Equity or of Admiralty the insurer has always been allowed to sue in his own name (f )." The next question to be asked is : if the insurer had no right to sue what exactly was the meaning of saying that he could sue in the name of the assured. The answer to the question is that although the insurer had no legal right of suit it was felt that the insured had a duty in equity to file a suit for recovery of the money and to hand over the proceeds to the insurer who had already paid to the assured the insurance money. The Court of Equity could compel the assured if he refused to take pro ceedings for the benefit of the insurer. He could not be forced to prosecute the claim but he could be forced just to lend his name. This is how this matter is explained in MacGillivray on Insurance Law "1698. Refusal by assured to take proceedings. There is probably no obligation on the part of the assured to take any active steps to prosecute his claim. If there is any danger of a claim being lost by lapse of time, loss of evidence or other cause, the insurers have the remedy in their own hands by paying the loss and then commencing proceedings in the assured's name. If the assured upon tender of a proper indemnity as to costs refuses to give the use of his name the insurer can, by proceedings in equity, compel him to do so (m), and since the Judicature Act, 1873, instead of taking double proceedings, the same purpose can be effected by joining the assured as defendant in an action brought in the name of the insurers against the parties liable. The insurers cannot re pudiate the assured's claim against them, and at the same time, insist upon his taking steps to enforce his claim against third parties so as to preserve their right of subrogation (n)." The reference in this para to the Judicature Act and whatever is stated thereafter may .for the present be kept out of considera tion. I am only explaining that the Court of Equity would force the assured to file a suit. As was explained by Justice Park in Yates v. Whyte (1838, 4 Bing. N C 283) the insurer bad the "clearest equity to use the name of the assured in order to reimburse himself." The right, therefore, in the insurer was only this that he could force the assured to file a suit for his benefit. I come now to the most important question to be answered. Do not the judgments before 1906 say that the insurer was subrogated to the rights and remedies of the assured and if the answer be in the affirmative does this not mean that subrogation in this context meant only a right to use the name of another? ''The answer to the question is not difficult. The judgments do go on saying that the insurer was subrogated to the rights and remedies of the assured, but there was no legal subrogation. As pointed out by McCardie, J. in (1922) 2 K B 249, it was only a subrogative equity. After referring to the opinion of Lord Chancellor (Lord Hardwicke) that: "the plaintiffs had the plainest equity that could be", McCardie, J. said : "it is curious to observe how this doctrine of subrogative equity gradually entered into the substance of insurance law and at length became a recognized part of several branches of the general common law." In fact subrogation was in itself an equitable principle. I have already quoted the definition of "subrogation" in Aiyar's Law Lexicon and the definition would show that it was not a legal right, but a "doctrine of equity and benevolence" intro duced for the purpose of protecting a person who was forced to make payment in respect of the liability of another. Because this so‑called right of subrogation was only an equity and not a legal right what difference arose between the positions of an insurer in a Court of Law and a Court of Equity? I have already quoted from MacGillivray para. 1686 wherein it is stated that in a Court of Equity the insurer was entitled to sue in his own name. This in fact has not been contested before us. Why was the insurer entitled to sue in his own name in a Court of Equity? The answer is that he did possess an equitable right and that right could be enforced in a Court of Equity. Why was he not entitled to sue in a Court of Common Law? The answer is that he had no legal right at all and therefore he could not file a suit in a Common Law Court. I may refer here also to what McCardie, J. said: in John Edwards v. Motor Union, "If once the claim be paid then as a matter of equity the rights to recover against third person pass from the assured to the insurer although the legal right to compensation remains in the assured and although action at law must be brought in the name of the assured and not of the insurer?" If this distinction is kept in mind the apparent confusion created by observation in judgments as to there being a subrogation and there being at the same time no right of suit in the name of the insurer in a Common Law Court will disappear. It was never the intention of the English Law to introduce some wholly new and unprecedented concept that a person possessed a right but had no remedy. No judgment speaks of any such peculiar concept. I have already quoted from Lord Penzance and from MacGillivray to show that the insurer had no legal right. The observations that he was entitled to be subrogated do not mean that he had a legal right. What he had was enforcible only in a Court of Equity. To sum up, the position in English Law in 1906 was this :‑ (i) the insurer had no right of suit in Common Law Courts because right of suit belonged only to the assured and it could not be transferred and there was no legal subrogation of the rights of the assured? (ii) the insurer was entitled in equity to force the assured to file a suit for him in the Common Law Courts on indemni fying him against costs and the Court of Equity would force the assured ; and (iii) the insurer was entitled to sue in the Court of Equity because in equity he was entitled to be subrogated to the rights of the assured. It may also be stated here that the non‑transferability of right of action was regarded as impediment to subrogation by the Common Law Courts though in subrogation there is no act of party and the transfer of rights takes place automatically. In London Assurance Company v. Sainsbury where all the four learned Judges said that the right of action could not be transferred, they were dealing with the question of subrogation. Apparently the fact that a right of action was not transferable appeared to the learned Judges to be an obstacle in the way of any transfer by operation of law. This then was the position in English Law before the Marine Insurance Act of 1906. One point may be explained here. Truly speaking as will appear from para. 1698 of MacGillivray Laws which has been reproduced above, since the Judicature Act of 1873 the insurer was not bound to take equitable proceedings to force the assured to file a suit and it was sufficient that while filing a suit in his own name he joined the assured as a party. This distinction does not appear always to have been kept in mind and in judgments even after 1873 it was being said that the insurer could not sue in his own name. What was the effect then of the coming into force of the Marine Insurance Act of 1906? The effect was that what was previously only an equitable subrogation enforceable in Courts of Equity became a subrogation in law. The insurer was henceforth entitled in law as he previously was in equity to the rights of the assured. The result would be that he would be entitled to sue in the Common Law Courts in his own name as he was previously entitled to sue in his own name in Courts of Equity. After the coming into force of the Marine Insurance Act, 1906, there is no English case in which the effect of sections 50 and 79 of the Marine Insurance Act on the question of sub rogation may have been considered. There are only two cases of a date later than 1906 which have a relation to the matter in dispute i.e. John Edwards & Company v. Motor Union Insurance Co. Ltd. ((1922) 2 K B 249) a judgment of MacCardie, J. from which I have already quoted, and Yorkshire Insurance Co. Ltd. v. Misbeth Shipping Co. Ltd. ((1961) 2 A E L 8 457). In the first case the dispute was between the insurer and the assured and the question for decision was whether in the case of a mere honour policy the principle of subrogation applies. It was found that the honour policy was a mere wager or bet and the claim of the insurer was rejected. The second case was also one between the insurer and the assured and the question was whether the assured who had received the insur ance money from the insurer but after filing a suit against the third party received payment of more than the insurance money was bound to deliver the excess to the insurer. It was held it was the assured who was entitled to the excess. The question as to whether even after the Marine Insurance Act, 1906, the insurer could not file a suit against a third party did not arise in either of these cases. It would be proper at this stage to make a brief refer ence to the cases cited at the Bar which have not already been mentioned. The earliest of those cases is Randal v. Cockran (27 E R 916). The report of this case is very short. A decree had been granted in this case to the insurer as against the third party. The report of the case does not show that the suit had been brought in the name of the assured but a reference to it in Simpson and Company v. Thomson Burrell ((1878) 3 A C 279) does show that the suit had in fact been brought in the name of the assured. In King v. Victoria Insurance Company Ltd. (1896 A C 250) a suit had been brought by the insurer against the third party. The suit was based not only on subrogation but on assignment. It was held that in a Court of Law the insurer could not sue in his own name, but that the Court of Equity would compel the assured to permit the use of his name on what were called the usual terms which would mean security for costs etc. The following passage at page 255 may be referred to with advantage: Their Lordships have no doubt that if, after receiving payment from the plaintiffs, the bank had got damages from the Government, a Court of Equity would have treated them as trustees for the plaintiffs to the extent of the payment, and that if it had been necessary to use the name of the bank a Court of Equity would have compelled the bank to permit it on the usual terms. Mr. Cohen says that no instance is to be found in the reports where the Court of Chancery has bound a defendant to give his name to be used in an action of tort. Nevertheless it cannot be doubted that insurers often have used the names of the insured to recover damages in tort, and have not heeded whether the payment made on their contracts of indemnity did or did not fall within their strict terms. If the reports are silent, the more probable explanation is that the kind of defence raised in the present case has not commended itself to lawyers. It is true that subrogation by act of law would not give the insurer a right to sue in a Court of Law in his own name. But that difficulty is got over by force of the express assignment of the bank's claim, and of the Judicature Act, as the parties must have intended that it should be when they stipulated that nothing in the assignment should authorise the use of the bank's name. Their Lordships do not express any dissent from the views taken in the Court below of the construction of the Judicature Act with reference to the term "legal chose‑in‑action." They prefer to avoid discussing a question not free from difficulty, and to express no opinion what limitation, if any, should be placed on the literal meaning of that term. They rest their judgment on the broader and simpler ground that a payment honestly made by insurer in consequences of a policy granted by them and in satisfaction of a claim by the insured, is a claim made under the policy, which entitles the insurers to the remedies available to the insured. On this view the highly artificial defence of the Queensland Government fails, and the appeal must be dismissed with costs. London Assurance Company v. Sainsbury has already been referred to but its facts have not been stated. The facts were that an assured who had received payment from the insurer filed a suit against the third party and secured a decree, but on account of the payment recovered from the insurer the decree was awarded after deducting the amount he had received. The insurer then filed a suit against the third party to recover the amount he had paid. The conclusion which two out of four learned Judges arrived at was that a right of action not being liable to be transferred the insurer could not sue. The other two while agreeing that a right of action could not be transferred were of the opinion that the insurer having paid the money was himself entitled to the amount he had paid. After this review of cases I proceed with the discussion. Could ft be said that the intention of section 135A was only this that the insurer should apply to the Court for compelling the assured to file a suit and then the Court should compel the assured to file a suit on some terms as to costs ? Was this the meaning of saying that the insurer was subrogated to the rights and remedies of the assured? The quotation from MacGillivray shows that after the Judicature Acts this procedure was not necessary even in England and it was sufficient to make the assured a defendant. In Pakistan the Courts are Courts of Equity as well as Law which means that they can enforce equitable rights too. If the insurer had only a subrogative equity the Courts in Pakistan could enforce that equity like Courts of Equity in England, but now by section 135A the equitable principle has become a legal right and the insurer is entitled not as a matter of equity but as a matter of law to the rights an remedies of the insured. According to section 135A even the remedies available to the assured pass to the insurer. Obviously remedies were remedies against others. If the insurer still ha not the right of suit how can it be said that the remedies have been transferred to him. I questioned learned counsel for the appellant as to what he meant by the objection that the insurer could file a suit in the name of the assured only. Did it mean that he had just to say in the cause title he was suing in the name of the assured and the suit could then proceed and be decreed and the assured could receive the decretal amount? Learned counsel had to accept that the insurer had according to hint no right of suit t all and the suit had to be brought by the assured who had to figure as the plaintiff and to sign the plaint. So the contention of learned counsel amounts to this that section 135A gives nothing to the insurer at all. There is no procedure in our Courts for an application to a Court of equity for forcing the assured to file a suit. No such application lie,, at all according to our ,procedure and a suit would have to be filed by the insurer against the assured for an injunction compelling him to file a suit. Is this what section 135 was intended to achieve ? The contention of learned counsel for the appellant is opposed to the basic concepts of right and remedy. If a person has a right he can always fits a suit for the enforcement of that right. It is not possible that the right should belong to one and still the enforcement of it should be by another. Rights in jurisprudence are of two kinds, substantive and remedial or to use another phraseology primary and secondary. A remedial or secondary right is one which arises in relation to the infringement of a substantive or primary right. To quote an example the right of a person that no physical injury be caused to him is a substantive or primary right. But when in fact he is beaten there arises a right to damages. The law after he has been beaten cannot undo what has been done and, therefore, awards him damages. This is the remedial or secondary right arising on account of tip;, infringement of the substantive right. If a person has a substantive right the remedy always belongs to him. In section 135A it is provided that the insurer is subrogated to the rights as well as the remedies. It is not easy to imagine what still remains with the assured. He was entitled either to sub stantive rights or to a remedy arid both passed to the insurer. It cannot be that after all his remedies have passed to the insurer he is still entitled to some of them and while the insurer is entitled to all the remedies he cannot file a suit. There was a good deal of argument as to whether sub section (4) of section 135A related to subsection (1) or sub sections (2) and (3), 1 do not think it is necessary to rely on that subsection in support of what I have said, but it is easy to demonstrate by a reference section 130A that, subsection (4) of section 135A does not relate to subsection (1) T but to subsections (2) and (3). The right of the assured to damages is a right to sue and the assignment of this right would have been hit by section 5 (e). It is section 130A which provides for the assignment and the need to refer to section 6 (e) arose in section 130A. It will be observed that the reference is there. Subsection (4) of section 130.E provides that nothing in section 6(e) would affect the provisions of this section. This meant that the assignment which was the transfer of a right to sue would be hit by section 6(e) but for the provision. There being already a provision in section 130A saying that the transfer of this right to sue was unaffected by section 6 (e) there was no need to have a second reference to section 6(e) in respect of the assignment. Subsection (1) to section 135A does not itself provide for assignment. That is the function of section 130A. Section 135A accepts the assignment as a fact and then simply adds that the assignee may file a suit and the defendant will be entitled to the defences available against the assured. Nothing turns on the fact that there is a statement as to the right of the insurer to sue after assignment. If this provision had not existed and there was a valid assignment of a right to sue by virtue of section 130A, the insurer would be entitled to sue. The intention of subsection (1) was to make the defences against the assured available in a suit by the insurer. It may be asked why introduce subsection (4) at all because the subrogation is by operation of law and section 6 (e) relates to voluntary transfers. The answer is that in London Assurance Co. v. Sainsbury four learned Judges were not prepared to give effect to subrogation for the simple reason that a right of action could not be transferred, although subrogation was not an act of transfer. As a matter of caution, therefore, it was proper to put in subsection (4). In any case once it is clear that subsection (4) does not relate to subsection (1) it can only relate to subsections (2) and (3). Reference was made to the statement of objects and reasons relating to the introduction of sections 130A and 135A. Suffice it to say that I have gone through the whole statement and there is nothing in it which will support the appellant. An argument was put forward that if the assured did not sue the relevant documents will remain in his possession and there will be difficulty in properly disposing of the suit. It may be pointed out that even in England all that the assured did was to permit the use of his name. He was not, as observed in MacGillivray, bound to prosecute the suit. Obviously if the insurer wanted any documents from him he had to apply to the Court for a direction to the assured to produce documents. Also as already observed after 1873 it was sufficient in England to make the assured a defendant. The same can be done here though I do not think it makes any difference to the production of documents. As defendant the assured is not bound to appear for no relief is asked for against him. He will have to be summoned as a witness. 1n any case if there be difficulty in the production of documents it is the plaintiff, that is the insurer who suffers for he has to prove the whole of his case and the defendant is not in any way prejudiced. In this case the assured is not a party but that is not a defect which can have any effect in the present case. The assured is not a necessary party, because no relief is asked for against him. He is a proper party only. No suit can be dismissed on account of the absence of a proper party, and objection as to U parties must in accordance with Order I, rule 13 be taken before the framing of issues. Here not only was the objection not taken but the High Court judgment expressly states that no other point was argued. I would dismiss this appeal with costs. HAMOODUR RAHMAN, J.‑--I have had the advantage of reading in advance the judgments of my learned brothers S. A. Rahman, Fazle‑Akbar and Kaikaus, JJ. I am in agreement with their conclusion that this appeal should be dismissed for the reason that under the procedural provisions prevailing in V this country no suit can fail by reason of non joinder or mis joinder of parties (vide Order I, rule 9 of the Code of Civil Procedure). Under these procedural provisions the Courts in this country have power to order any other person to be sub stituted or added as a plaintiff upon such terms as they may think fit and proper, where a suit appears to have been instituted in the name of the wrong person as a plaintiff or even where it is doubtful whether it has been instituted in the name of the right person (vide Order 1, rule 10 of the Code of Civil Procedure). It is also clear from the provisions of Order 1, rule 13 of the said Code that such an objection as to the non joinder or misjoinder of parties must be taken at the earliest possible opportunity either before or at least at the time of the settlement of issues, and if such objection is not taken within the said time it shall be deemed to have been waived. In the present case. no such objection was taken at the trial, for, the defendants in this suit did not appear at the hearing of the suit and a decree was passed ex parte. It was only in appeal that the point was raised for the first time in the High Court. The objection should not have been entertained at this late stage and the appeal in the High Court should have failed on this ground itself. I regret, however, my inability to agree with my learned brothers that the right of subrogation acquired by the insurer under section 135A of the Transfer of Property Act had also the effect of transferring, by operation of law, the right to sue in his own name a third person to enforce any right that the assured may have had against such a person in respect of the subject‑matter insured. This section 135A was introduced into the Transfer of Property Act by the Transfer of Property (Amendment) Act (VI of 1944) to bring the provisions of the law prevailing in India, with regard to the assignment of and subrogation under Marine Insurance Policies, in line with the English Law, as stated in the statement of objects and reasons, by introducing provisions corresponding to sections 50, 51 and 79 of the English Marine Insurance Act of 1906. Subsection (I) of section 135A is, therefore, an exact copy of section 50 of the English Marine Insurance Act of 1906 and subsections (2) and (3) of section 135A are verbatim copies of section 79 of the said Act. Now so far I as the Courts of England are concerned, it is firmly established that, notwithstanding the provisions of the above‑mentioned sections of the Marine Insurance Act, 1906, the insurer acquired no higher rights than those which were allowed to him upon principles previously accepted by the Courts in England. In other words, no matter what might be the general connotation of the word `subrogation', the insurer was, so far as section 79 of the Marine insurance Act was concerned, subrogated to such rights for the purpose for which, and to the extent to which, subrogation was allowed by the principles of English Law and no further. It is equally well‑settled that under the English Law an under‑writer, who had been subrogated to the rights and remedies of the assured upon fully indemnifying the assured in respect of his claim, acquired no independent rights of his own and could not, therefore, sue in his own name. He became entitled only to the benefit of such remedies, rights or other advantages as the assured himself was capable of enjoying. Thus the principle that was enunciated, prior to the Marine Insurance Act of 1906, in the cases of Simpson v. Thompson (1877) 3 A C 279) and Castillain v. Preston (1883) 11 Q B D 380) has held the field unchanged even to this day. It was affirmed in James Nelson and Sons Ltd. v. Nelson Line Limited (1906) 2 K B 217), John Edwards Co. v. Motor Union Insurance Co. Ltd. (1922) 2 K B 249), Page v. Scottish Insurance Corporation (1929) 140 L T R 571) and even as recently as 1961 in the case of Yorkshire Insurance Co. Ltd. v. Misbeth Shipping Co. Ltd. (1961) 2 A E L R 487). The principle upon which these decisions appear to be based is that a right of action arising under a contract or a tort, being' a legal chose‑in‑action, cannot be transferred except by a legal assignment, but the right of subrogation given to an insurer under the Marine Insurance Act being only an equitable right to minimise his loss by using for his own benefit any legal right which the assured could have enforced in respect of the subject‑ x matter insured, does not carry with it the right to sue in his own name as a transferee of that right. The legal right of action subsists in the assured. The most that the insurer can do is to get the aid of equity to compel the assured to lend his name for the purpose of the protection of those rights. Therefore, unless there has been an express assignment of the legal right, actions at law brought for the benefit of the insurer are to be brought in the name of the assured. MacGillivray in his book on the English Insurance Law, no doubt, opines that in Courts of Equity and of Admiralty the insurer was, nevertheless, always allowed to sue in his own name, but in support of his opinion all the decisions cited are of American Courts. No English decision has been referred to nor have I been able to discover any reported English decision where this has been permitted. Eqnity in England comes to the aid of law, so far as I have been able to gather, only to compel the assured to lend his name to the insurer. This would not have been necessary if Equity, in fact, permitted the suit to be brought by the insurer in his own name. The same learned author has also expressed the view that after the Judicature Acts in England, which have merged the Equity and Common Law Jurisdictions, it would be open to an insurer without seeking the aid of equity to compel the assured to lend his name to file the suit in his own name and to add the assured as a defendant upon the allegation that he was wrongfully refusing to lend his name. But this again is something quite inconsistent with the view that in England Courts of Equity permitted the insure to sue in his own name, for, if that was permissible one would have expected that after the Judicature Acts this would have been the procedure followed whether the suit was brought in the Chancery Division or the Queens Bench Division of the English Supreme Court. The question, however, that arises for consideration is whether our law which is a statutory law has, in any way, improved the position of the insurer. As stated earlier, section 135A is a verbatim copy of sections 50 and 79 of the English Marine Insurance Act, 1906. The Indian Legislature when introducing this section into the Transfer of Property Act also clearly stated that it was designed to bring the law in this sub‑continent into line with the law prevailing in England. Can, it, therefore, be said that the Indian Legislature was unaware of; the fact that in England the provisions of section 79 of the Marine Insurance Act, 1906, had received a certain construction where under it had been consistently held that the subrogee was not entitled to sue in his own name? It is said that since in British India there was no distinction between the equity and common law jurisdictions, it could not have been the intention of the Legislature in India to introduce such an artificial distinction into the statutory law of the country. This argument is sought to be supported by a reference to the provisions of sub section (4) of section 135A wherein it is said that clause (e) of section 6 of the Transfer of Property Act shall not affect the provisions of the said section 135A, as also by analogy with the right of subrogation granted under section 92 of the Transfer of Property Act. It is urged that the incorporation of subsection (4) in section 135A was wholly unnecessary. If it was intended that the said subsection should govern only the provisions of sub section (1) of that section, for, the right to assign a Marine Insurance Policy had been conferred separately by section 130A of the Transfer of Property Act and there too there was in subsection (4) thereof a similar provision excluding the operation of clause (e) of section 6 of the said Act. Clause (e) of section 6 provides that a mere right to sue cannot be transferred. Section 130A of the Transfer of Property Act merely provides for the voluntary assignment of rights under a policy of Marine Insurance and prescribes the method by which this can be done. It is not specially concerned with the right to sue, although the same may or may not be included in such a transfer. But in subsection (1) of section 135A it is specifically mentioned that where a policy of Marine Insurance has been assigned so as to pass the beneficial interest therein the assignee of the policy will also be entitled to sue thereon in his own name. Thus the right to sue in his own name is thereby expressly conferred Y upon an assignee of a Marine Insurance Policy. It was necessary, therefore, in my view, to exclude the operation of clause (e) of section 6 of the Transfer of Property Act even in section 135A and it cannot be said that this subsection was wholly redundant so far as assignments of marine insurance policies were concerned. Again, so far as the right of subrogation under section 92 is concerned, it has to be noticed that the first paragraph of the said section states :‑ "Any of the persons referred to in section 91 (other than the mortgagor) and any co‑mortgagor shall, on redeeming property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee." Then the second paragraph says :‑ "The right conferred by this section is called the right of subrogation, and a person acquiring the same is said to be subrogated to the rights of the mortgagee whose mortgage he redeems." In construing this section the Privy Council has no doubt held in the case of Lala Man Mohan Das v. Janki Prasad and others (AIR1945PC23), that subrogation in this section "means the substitution of one creditor for another". But I would venture to point out that this is the consequence not of the user of the word subrogation' in this section but rather of the words used in the first paragraph of the said section. Section 91 of the Transfer of Property Act specifically mentions that the classes of persons mentioned in clauses (a), (b) and (c) thereof would also, in addition to the mortgagor, be entitled to institute a suit for the redemption of the mortgaged property and section 92 says that the same category of persons shall have, as regards redemption, foreclosure, or sale of the mortgaged property, the same rights as the mortgagee whose mortgage he has redeemed. If the use of the word `subrogation' was capable by itself to sufficiently convey the same sense, then I fail to appreciate why the Legisiature should have used words in the first paragraph of section 92 expressly conferring the same rights as those possessed by a mortgagor on a subsequent mortgagee who has redeemed a prior mortgage. It would have been sufficient merely to say in the said paragraph in section 92 that any of the persons referred to in section 91 and any mortgagor shall on redeeming the property subject to the mortgage be subrogated to the rights of the mortgagee whose mortgage he has redeemed. But this has not been done. Similarly in section 135A the Legislature has taken the trouble in subsection (1) to specify that the assignee of a policy will be entitled to sue thereon in his own name. If the assignment of the policy carried with it as one of its ordinary incidents the right to sue also, then subsection (1) of section 135A was wholly redundant. But it is not permissible for us whilst interpreting a statute to hold that any part thereof or any word therein is surplusage. Every word has to be taken into account and a meaning given to it. If, therefore, this rule of construction has to be observed and a meaning given to every word of the statute, then it seems to me that the scheme of the Transfer of Property Act is clearly to the effect that where the Legislature has intended that the right to sue should also be transferred, it has specifically so mentioned, whether such transfer is by volition of parties, as for example by assignment under subsection (1) of section 135A, or by operation of law as for example by subrogation under section 92 thereof. In this scheme of things if the Legislature has deliberately omitted to mention this right specifically in any particular section or subsection, then the only inference possible is that that right to sue was no also intended to be transferred in that particular case. The omission of provisions similar to those contained in subsection (1) of section 135A from subsections (2) arid (3) of the said section, therefore, to my mind, indicates that the Indian Legis lature was not minded to include within the right of subrogation thereby given the right also to sue in the subrogee' s own name, particularly, since this right was not recognised in England under the Marine Insurance Act, 1906, the provisions of which were being incorporated in the Transfer of Property Act. It may also be pointed out here that the view which I have taken, as to the right of subrogation, has been accepted even in India except in the solitary instance of the case of Aliance Co. Ltd. v. The Union of India (62 C W N 539). The same High Court has taken a contrary view in the case of Indian Trade and General Insurance Co. Ltd. v. The Union of India (A I R 1957 Cal. 190). A Division Bench of the Madras High Court has also in the case of K. V. Periyami anna Marakkayar & Sons v. Banians & Co. (A I R 1926 Mad. 544), accepted the view that an indemnifier cannot sue in his own name unless he gets an assignment from the promisee. Subject, therefore, to what I have stated above, I am in agreement with the order proposed by my learned brother Fazle‑Akbar, J., and would dismiss this appeal but leave the parties to bear their own costs. We are agreed that the appeal should be and it is hereby dismissed. As regards the costs, in accordance with the view of the majority, the parties are left to bear their own costs. A. H. Appeal dismissed.