ORDER P. Subramonian Poti, J. 1. This is an application seeking the court to record that the interests of the deceased 1st appellant has devolved on appellant No. 2. The appeal was filed by the two plaintiffs in the suit as appellants Nos. 1 and 2. The 2nd plaintiff did not claim the decree nor were the allegations in the plaint such as to find any interest in the subject-matter of the suit in the 2nd plaintiff. The suit was decreed by the trial court. The suit was one for recovery of certain hire monies in respect of a vehicle said to have been entrusted to the defendant by the first plaintiff for the purpose of use for the training of Army drivers. The 2nd plaintiff is said to have mediated for such entrustment. The suit was decreed by the trial court but in appeal the decree was vacated. As a result, the suit stood dismissed. It is against that the appeal was taken to this court. The decree, if the suit succeeded here, would therefore be in favour of the plaintiff. The first plaintiff died on 11th September 1973. The legal representatives of the first plaintiff who were his wife and children were not impleaded in time. They came with a petition to implead after the appeal abated as against the first appellant and they also moved a petition for setting aside the abatement. These were dismissed finding that there was no reason to set aside the abatement. Therefore appeal has abated as against the first appellant. It was only the first appellant wanted the decree and the decree can only be granted to the first appellant. Though the second appellant is still on the party array that may not be sufficient to consider the claim in the suit on the merits. But the second appellant has moved this petition bringing it to the notice of the court that some time prior to the death of the first appellant he had transferred his rights in the subject-matter of the suit to the 2nd appellant by a document which also has been produced along with the petition. It is claimed that the second appellant must be recorded as having obtained assignment of all the rights of the first appellant. It is in that manner that the second appellant seeks to continue the proceedings. 2. It is claimed that the second appellant must be recorded as having obtained assignment of all the rights of the first appellant. It is in that manner that the second appellant seeks to continue the proceedings. 2. The claim of the second appellant is objected to by the respondent who has raised several contentions in answer in his counter-affidavit. The genuineness of the assignment deed, which is unregistered, is itself in question. The second appellant is put to strict proof of the assignment taken by him. Several circumstances are pointed out by the respondent in the appeal to indicate that the assignment would not have been likely. It is also said that the assignment deed which is said to have been executed on 31st May 1973 could have been brought to the notice of the court long before the death of the first appellant. It is also contended that there was nothing to assign in the subject-matter of a suit which stood dismissed and therefore nothing was conveyed by the assignment. It is therefore said that based on the assignment the assignee cannot seek to continue the prosecution of the appeal. 3. Since the genuineness of the assignment was itself in dispute we posted the matter for evidence and we examined the second appellant in this court. He has spoken in support of the assignment Ext. P-7 and he has particularly referred to the signature in this deed as that of the 1st appellant. There is no evidence on the side of the second respondent to justify the challenge to the genuineness of Ext. P-7. It is true there are several circumstances leading to suspicion about the genuineness of the document. The document is seen written on two stamp papers for Rs. 25 each and they are seen purchased on 17th April 1973. The document is seen executed on 31st May 1973. The second appellant, who was examined, swears that the stamp papers were purchased when he went over to his Trivandrum office, that they were taken to the Neyyattinkara office and the document was executed the next day. That cannot be the case. It is also seen, as pointed out by counsel for the respondent, that the writing of the name of Krishna Panicker, the executant of Ext. P-7 at the bottom of Ext. That cannot be the case. It is also seen, as pointed out by counsel for the respondent, that the writing of the name of Krishna Panicker, the executant of Ext. P-7 at the bottom of Ext. P-7 and the middle of the second page is in one ink while it is apparently in a different ink in the bottom of the second page. Whatever that be, we do not think that these circumstances alone would be sufficient to hold that Ext. P-7 is not signed by the first appellant. We believe the evidence of the second appellant and hold that Ext. P-7 is genuine. 4. There is a contention raised that even assuming that Ext. P-7 is genuine it cannot convey any rights to the second appellant so as to enable him to continue the appeal notwithstanding the demise of the first appellant. In brief the counsel's argument appears to be that at the time when Ext. P-7 was executed the decree in force being one of dismissal of the suit there was nothing to transfer to the second appellant and what was transferred or purported to be transferred was only the final fruits of the litigation. That would mean the transfer will be operative in favour of the second appellant only when a decree is passed in favour of the first appellant. That would mean that it would operate only in the future. Hence until such decree is, if at all, passed, the second appellant would have no interest in prosecuting the appeal on the terms of Ext. P-7. Therefore he could not seek to implead himself under Order XXII, rule 10 of the Civil Procedure Code. 5. We may in this context refer to the terms of Ext. P-7. The first appellant who was the executant of the document mentions the pendency of the appeal before this court and also the fact that he has been borrowing amounts from the second appellant from time to time. It is further mentioned that Rs. 1,800 was paid to the first appellant by the second appellant on that day and consequently the first appellant has agreed that he would surrender his rights to the second appellant and the second appellant may obtain a decree and realise the fruits of the decree. It is further mentioned that Rs. 1,800 was paid to the first appellant by the second appellant on that day and consequently the first appellant has agreed that he would surrender his rights to the second appellant and the second appellant may obtain a decree and realise the fruits of the decree. MALAYALAM It is argued that this clause which gives the second appellant right to implead enables the second appellant also to take further steps to recover whatever amount is recoverable by the first appellant. The question for consideration is whether these terms should be read to mean a transfer of the interests in presente in the claim which the first appellant has against the respondent or whether it should be read as a conveyance of whatever rights the first appellant may obtain under the decree in the appeal pending before the High Court. For, if it were the latter it would really operate as a conveyance if and when a decree is obtained in appeal. Until then it will be merely an executory contract. In case the first appellant succeeds in the second appeal and obtains a decree the conveyance will operate. The agreement between the parties will operate to convey the rights under the decree so obtained. If that be so until such decree is obtained the second appellant cannot urge any claim under the first appellant. He cannot have any interest sufficient to seek to be impleaded under Order XXII, rule 10 of the Civil Procedure Code and therefore in the absence of the legal representatives of the first appellant on the party array, on his demise the appeal may become incompetent. If the terms of Ext. P-7 is construed as a transfer of the rights in the subject-matter of the suit and that construction enables the 2nd appellant to continue the further proceedings in the appeal then, of course it is possible to say that the second appellant has sufficient interest in the subject-matter of the suit to seek to be impleaded under Order XXII, rule 10. There again whether, in the circumstances of the case, he is to be impleaded is a matter which the court will have to consider. 6. Our attention has been drawn by counsel on both sides to a number of decisions bearing on the controversy before us. In Rajamanickam Chetty v. Abdul Halim A.I.R. 1941 Mad. There again whether, in the circumstances of the case, he is to be impleaded is a matter which the court will have to consider. 6. Our attention has been drawn by counsel on both sides to a number of decisions bearing on the controversy before us. In Rajamanickam Chetty v. Abdul Halim A.I.R. 1941 Mad. 389 referring to the decision in Glegg v. Bromley (1912) 3 K.B. 474 reference to this question is made in these terms: " Section 6 (e), T. P. Act, says that a mere right to sue cannot be transferred; and it is accepted by the learned counsel that as the result of this provision there cannot be an assignment of a suit which has been filed for the purpose of recovering damages, either in contract or in tort. It is lawful however for a plaintiff in a pending suit to assign the benefit which he may obtain under the decree to be passed in the suit; but this does not give the assignee of the fruits of the action the right to interfere in proceedings in the action ”vide (1912) 3 K. B. 474 which was accepted by the Privy Council as correctly stating the law in 48 Mad. 230. The learned Chief Justice was referring to the following passage in Glegg v. Bromley (1912) 3 K. B. 474 wherein Lord Justice Parker said at page 490: "The question was whether the subject matter of the assignment was, in the view of the Court, property with an incidental remedy for its recovery, or was a bare right to bring an action either at law or in equity. With regard to the assignments of future property, they stand, I think, on a totally different footing. Nothing passes, even in equity, until the property comes into present existence. Only when this happens can the assignment attach and an interest pass." There may be cases where the assignment may be merely of a right to sue. There may be cases where the assignment is of property with the right to sue and there may yet be another class of cases where the assignment relates to future property with or without right to sue. In any case of transfer of a mere right to sue a transferee cannot claim to come in under Order XXII, rule 10 of the Civil Procedure Code. In any case of transfer of a mere right to sue a transferee cannot claim to come in under Order XXII, rule 10 of the Civil Procedure Code. But in the case of the transfer of the subject matter of the suit, the position would be different. The case of a person who gets a transfer of the subject matter of the suit in presente must stand differently from the case of a person whose transfer becomes effective in future, when what is transferred is really the fruits of a decree. That is because the right to property comes into existence later and until then no claim to seek to be impleaded under Order XXII, rule 10 would arise. Such are cases where parties assign not the subject matter of the suit itself but assign the ultimate decree that may be passed in the suit. In such a case the assignment would really be only a promise to assign, and equity would turn that promise into an assignment when property accrues. But in all such cases the assignee would not be a person who can claim to have any interest in the property until the event which effectuates the assignment happens. May be, by the terms of the assignment the right to sue may also be purported to be transferred but that transfer of the right to sue would remain independent just as a transfer of a mere right to sue because the right to the property would arise only when the property comes into existence. In other words, where along with a transfer of a future right to property, the right to sue is also purported to be transferred, the latter may not be effective since the transfer will be viewed so far as the right to sue is concerned as a transfer of a mere right to sue, a right not transferrable. 7. The case before us is a case of transfer of a right to the fruits of decree. It is only on the passing of the decree that the transferee will be entitled to claim that he has got interest in the subject-matter and therefore any right to sue even assuming it is transferred would by itself not entitle him to seek to be impleaded under Order XXII, rule 10. 8. It is only on the passing of the decree that the transferee will be entitled to claim that he has got interest in the subject-matter and therefore any right to sue even assuming it is transferred would by itself not entitle him to seek to be impleaded under Order XXII, rule 10. 8. In this context we may refer to a decision in Nelliappa v. Sethuramalingam A.I.R. 1940 Mad. 918. That was a case where a suit for recovery of some share in certain properties was dismissed and thereupon the plaintiff filed an appeal. A third party agreed to finance him for the appeal. The plaintiff executed a document in favour of such party agreeing that in return for the financial assistance received the property would be divided half and half between the plaintiff and the third party in the event the appeal was successful. During the pendency of the appeal the original plaintiff died and the assignee who was financing the appeal sought to come on record in his place under Order XXII, rule 10 C.P.C. According to him he had acquired one half interest of the plaintiff in the suit properties by reason of the assignment deed executed in his favour. The matter reached the High Court and that Court took the view that the transfer was really not a transfer of the half share of the plaintiff's interests and what was agreed to was that in the event of the plaintiff being successful the financier would get half of the fruits of the litigation. Reference is seen made in this connection to the decision in Basant Singh v. Mahabir Prassad A.I.R. 1913 (3) All. 273. The learned Chief Justice Leach, C.J. observed: "The Judicial Committee said that these provisions did not confer upon the financier a then present right to possession of a share in the property which was the subject-matter of the suit. By the agreement it was contracted that till the suit was successful the financier should be merely a partner or co-owner in a certain undivided fraction of the property, There was no personal grant or assignment to him of any separate share or fraction of the property divided or undivided. By the agreement it was contracted that till the suit was successful the financier should be merely a partner or co-owner in a certain undivided fraction of the property, There was no personal grant or assignment to him of any separate share or fraction of the property divided or undivided. At best the contract only amounted to this that, that in a certain future event he should become entitled to the proprietary possession of a certain undivided fraction of it, and then have the right to have that fraction partitioned." It appears from the facts of the case before the Madras High Court that it was more or less similar to the facts of the case here. 9. The same view was taken by Venketaramana Rao, J. in Mayyappa v. Seethachi A.I.R. 1937 Mad. 200. The learned Judge said at page 207: "Apart from any question as to the truth or validity of the compromise, the question is whether the appellant fulfills the requisites required under O.22, rule 10 in order to enable the court to implead him as a party to the suit. Has there been an assignment, creation or devolution, of interest within the meaning of r. 107. Interest means interest in the subject matter of the litigation. The words 'has come or devolved' connote interest in presente. It must be vested in the applicant on the date of the application to implead him a party to the suit and not merely contingent." We think that if we were to read the assignment Ext. P-7 as only enabling the second appellant as the assignee of the first appellant, to realise the fruits of the decree that may be obtained in second appeal in case the decree happens to be in favour of the first appellant, then of course there is no scope for permitting the second appellant to treat himself as an assignee of the first appellant of the subject matter of the suit and continue the proceedings. We have already referred to the terms of Ext. P-7. The very significant fact in this case is that on the date of Ext. P-7 the suit stood dismissed by reason of the appellate decision and parties could have conceived of any benefit by assignment only in the event of a reversal of the appellate decree. We have already referred to the terms of Ext. P-7. The very significant fact in this case is that on the date of Ext. P-7 the suit stood dismissed by reason of the appellate decision and parties could have conceived of any benefit by assignment only in the event of a reversal of the appellate decree. It is in this context that the evidence of the second appellant before this Court becomes relevant. He said in this context: MALAYALAM This would indicate that what was understood to be transferred was the right which may accrue to the first appellant in case he succeeded in the Second Appeal and the second appellant therefore wanted to make a claim on the basis of the assignment in case the appellant succeeded in the appeal. It has been very vehemently argued by the learned counsel Sri Paripoornan that in considering the document evidence of any such intention must be ruled out and therefore notwithstanding what the party said, the document must be read on its own and if on a reading of the document it is possible to hold that the transfer was of the subject matter of the suit in presente, then of course he could be allowed to come in the place of the first appellant. We have been invited to the decision in Valiya Raja v. Veeraraghava Iyer 1961 K.L.T. 103 (F.B) and in Delhi Development Authority v. Durga Kaushish 1973 (2) S.C.C. 825 . It is not necessary to refer in detail to these decisions, as the principle that intention of parties not reflected in the document cannot govern the construction of documents seems to be unexceptional. This is so because third parties would have acted upon such document intending it as one normally reads it and rights would have accrued to them based thereon. To say that the parties to the documents had intention different from that expressed by the language of the document would certainly create mischievous results. But we have to remember that this is a case where the party to the document bases his claim on the document and it is his evidence which is relied on in reading and understanding his case. It is not as if evidence of intention is being used against some other party, a stranger to the document. But we have to remember that this is a case where the party to the document bases his claim on the document and it is his evidence which is relied on in reading and understanding his case. It is not as if evidence of intention is being used against some other party, a stranger to the document. Moreover the meaning which has been given by him in the in document would be the normal meaning particularly when we remember that at the time of the assignment the suit stood dismissed and therefore normally nobody would think of transferring the subject matter of the suit. The transfer in the instant case would normally mean accrual of right only contingent upon the success of the second appeal. The terms of the document could very well be read in the manner spoken to by the second appellant. This being the case we see no reason to think that the transfer was of a right in presente. If so we cannot allow this petition and permit the second appellant to continue the proceedings stepping into the shoes of the first appellant in the case. The petition is therefore dismissed.