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1966 DIGILAW 14 (KER)

KRISHNAN NAIR SANKARAN NAIR v. S. CHELLAPPAN PILLAI

1966-01-15

K.K.MATHEW, S.VELU PILLAI

body1966
Judgment :- 1. The plaintiff is the appellant. The suit was for arrears of defaulted subscriptions due under a chitty security bond, Ext. P-1, executed by the first defendant in favour of the foreman, the second defendant. By Ext. P-2 the plaintiff, a non-prized subscriber in the chitty, got an assignment of the rights of the foreman under Ext. P-1. It was alleged in the plaint that the first defendant committed default in the payment of the subscriptions from the tenth instalment which fell due on 9 51953. The plaintiff, however, claimed the defaulted subscriptions only from the 13th to 30th instalments with interest. The suit was filed on 9-11-1956. 2. The defendant raised two contentions: (1) that the assignment (Ext. P-2) was invalid as previous sanction in writing of the Registrar of Chitties was not obtained as required by S.33 (1) of the Chitties Act of 1120 and (2) that the suit was barred by limitation. 3. The learned Munsiff held that Ex. P-2 assignment was valid, and that the suit was not barred by limitation and decreed the suit. On appeal by the first defendant, the learned judge came to the conclusion that Ext. P-2 assignment was invalid as previous sanction in writing of the Registrar was not obtained as required by S.33 (1) and that the suit was barred by limitation. He therefore allowed the appeal; hence this second appeal. 4. Counsel for the respondents did not seek to support the decree of the lower appellate court on the ground that the suit was barred by limitation. Admittedly the default occurred on 9 51953, but no notice, as contemplated under S.32 of the Chitties Act, 1120, was issued to the first defendant claiming the whole amount in a lump. Therefore the instalments due under Ex. P-1 have not become due in a lump. The instalments which fell due according to the terms of Ext. P-1 bond within three years of the date of suit were admittedly not barred by limitation and are recoverable by the plaintiff. 5. Then, the only point for consideration is whether the assignment of the right of the foreman under Ex. P-1 by Ex P-2 is invalid. The instalments which fell due according to the terms of Ext. P-1 bond within three years of the date of suit were admittedly not barred by limitation and are recoverable by the plaintiff. 5. Then, the only point for consideration is whether the assignment of the right of the foreman under Ex. P-1 by Ex P-2 is invalid. S.33 (1) and (2) of the Chitties Act, 1120, are as follows: " (1) No transferor the rights of a foreman to receive subscriptions from prized subscribers shall be made without the previous sanction in writing of the Registrar. (2) Any such transfer of the rights of a foreman to receive subscriptions from prized subscribers shall, if it defeats or delays a non-prized or unpaid subscriber, be voidable at the instance of such subscriber". 6. It is contended by counsel for the first defendant that the assignment was invalid as it was against the mandatory provisions of S.33 (1). Counsel relied on S.23 of the Contract Act and submitted that the transfer of the right under Ext. P-1 was forbidden unless the previous sanction in writing of the Registrar of Chitties was obtained and, as admittedly it was not obtained in this ease, the plaintiff could not sue on the basis of Ex. P-2 assignment. We are not inclined to accept this contention. The object of sub-section (1) of S.33, as we understand it, is only to safeguard the interests of the non-prized subscribers in the chitty. The beneficial interest in the assets of the chitty belongs to the non-prized subscribers of the chitty. The sub-section is intended to protect the interest of the non-prized subscribers in the chitty who would be defeated or delayed in the satisfaction of their claims by the transfer of the assets of the chitty by the foreman in favour of strangers. It was argued that the provisions of S.33 (1) are mandatory and therefore violation of those provisions would nullify the assignment. We do not find our way to accept this submission. The question whether the provisions of a section are mandatory or directory will depend upon its language and object. No universal rule applicable to all eases can be formulated. It was argued that the provisions of S.33 (1) are mandatory and therefore violation of those provisions would nullify the assignment. We do not find our way to accept this submission. The question whether the provisions of a section are mandatory or directory will depend upon its language and object. No universal rule applicable to all eases can be formulated. If the object is to to protect the interest of the public or the enforcement of a public policy declared by the Legislature, then the provisions may be imperative in character and violation of them would render a transaction void. If, on the other hand, the object is only to protect' the interests of a person or a class of persons and no interest of the public is involved, then the provisions, though couched in imperative language, may be directory in character and a violation of the provisions would not render the transaction void. In such a case the transaction may be voidable at the instance of the person or class of persons for whose benefit the provisions are enacted. We do not find any indication in the Act of the consequence which would follow from a violation of the provisions of S.33(1). The only object of the sub-section is, as we have indicated, to protect the interest of the non-prized subscribers, and it does not lie in the mouth of the first defendant to contend that the assignment (Ext. P-2) is invalid because the sanction in writing of the Registrar was not obtained. 7. In Mathew v. Ayyappankutty (1962 KLT. 61 FB.) the question arose whether an alienation in contravention of S.21 of the Ezhava Act was void. Madhavan Nair, J., made the following observations: "It is thus clear that nothing turns on a rule being imperative in form. The question, whether a contravention there of would lead to a total nullification of the transaction or only to an invalidation making it voidable at the option of the person prejudiced thereby depends not on the form but on the purpose of the enactment. The question, whether a contravention there of would lead to a total nullification of the transaction or only to an invalidation making it voidable at the option of the person prejudiced thereby depends not on the form but on the purpose of the enactment. If the provision is designed to promote public interests, its contravention would entail a nullification; but if the object is to promote private interests of individuals or groups of individuals its contravention would only make the transaction voidable at the option of the person affected thereby (see Ranee Surnomoyee v. Maharajah Satteeschunder Boy 10 M. I. A. 123,145)." With respect, we think that the above observations are applicable to the facts of this case. We think that it is not for the sake of persons like the first defendant that sub-section (1) was enacted. We take the view that merely because the previous sanction in writing of the Registrar was not obtained, the assignment would not become null and void. We hold that the plaintiff is entitled to recover the plaint amount by virtue of Ext. P-2 assignment and that the judgment of the learned Munsiff was right. We set aside the judgment and decree of the lower appellate court and restore the decree passed by the Munsiff. The second appeal is allowed with costs. Allowed.