On the 19th February 1924, in a suit filed on the Original Side of this Court, F. Friedmans Diamond Trading Company, a company incorporated under the laws of Holland, obtained a decree for Rs. 24,207-4-0, with interests and costs, against one T.V. Ramanath Joshi. The judgment-debtor died on the 15th September, 1924 leaving two sons, the second and third respondents in this appeal. The father and the sons constituted an undivided family. On the 8th February 1927 the decree-holders applied for an order directing that the names of the second and third respondents be brought on the record as the legal representatives of their deceased father. An order was passed as prayed, leave being granted to execute the decree against the second and third respondents to the extent of their interests in the family properties. The third respondent was then a minor and notice was issued to his grandfather as his guardian. Subsequent to the passing of the order of the 8th February 1927 sums were paid to the decree-holders on account of the amount due to them under the decree. On the 8th November, 1933 one Shantilal Pandya, purporting to act as the agent of the decree-holders, assigned the decree to the appellant for a sum of Rs. 4,277-4-0. Shantilal Pandya held a power of attorney which had been granted to him by one Osthar Fleischmanu, an agent of the decree-holders. Fleischmanus power contained a power of substitution. The power granted to Shantilal Pandya did not authorise him to assign the decree, but he carried through the transaction and the decree-holders accepted the amount payable as consideration, thereby ratifying his action. On the 8th February, 1935, the appellant filed an application in execution proceedings (No. 39 of 1935) asking the Court to recognise the assignment, to direct that his name be brought on the record in place of that of the decree-holders and to attach the family properties. The appellant did not know that the third respondent was a minor and asked that notice be issued to him direct. Notice was in due course served on the second and third respondents but they did not appear and the Court passed an order on the 22nd October, 1935 recognising the assignment. The Court adjourned the case for a fortnight with regard to the other reliefs asked for. Further adjournments were granted and in March 1936 the appellant discovered that the third respondent was a minor. Accordingly on the 10th of that month he applied for an order appointing a guardian ad litem . This application was granted on the 16th March, 1936.

The guardian ad litem appeared and through an Advocate filed an affidavit setting forth objections to the validity of the assignment. The objections may be summarised as follows: (1) The power of attorney under which Shantilal Pandya had executed the deed assigning the decree to the appellant conferred no authority upon him to act in the matter; (2) on or about the 11th August 1933 an agreement had been entered into between the appellant, the decree-holders who were represented by Shantilal Pandya, and the second respondent whereby the appellant was to pay to the decree-holders on behalf of the legal representatives of the judgment-debtor Rs. 4,277-4-0 in satisfaction of the decree; (3) by oversight satisfaction was not recorded and taking advantage of that circumstance Shantilal Pandya had dishonestly and fraudulently colluded with the appellant and purported to effect an assignment of the decree in order to secure an undue advantage to himself and the appellant. Subsequently efforts appear to have been made to obtain a settlement and the appellant consented to his application being postponed from time to time in order that terms might be arranged. Nothing, however, came out of the negotiations and the application was eventually heard by the Assistant Registrar, who by an order dated 3rd September 1937 dismissed the objections. When the arguments were heard the third respondent had become a major, and after attaining his majority had expressly adopted the objections which his guardian ad litem had filed during his minority. The Assistant Registrar considered that the power of attorney granted to Shantilal Pandya was sufficiently widely drawn for the purpose of the assignment and refused to allow the question of the adjustment of the decree to be raised in view of the provisions of O. 21, R. 2(3) of the Code of Civil Procedure and of the decision of a Full Bench of this Court in Nalam Subramanyam v. Devara Ramaswami (55 Mad. 720 [LQ/MadHC/1932/16] = 35 L.W. 538 (F.B.). Realising the difficulty that he was in, in view of the provisions of O. 21, R. 2(3), the learned Advocate who appeared for the third respondent before the Assistant Registrar raised the alternative argument that as the appellant had paid to the decree-holders the consideration for the assignment of the decree the appellant must be deemed to be a benamidar for the second and third respondents and therefore was not entitled to execute the decree. The Assistant Registrar held that the appellant was not a benamidar and his order indicated that he did not accept the story of a collusive arrangement advanced by the third respondent. The Assistant Registrar also rejected a contention that the execution proceedings were void ab initio because the order of the 22nd October 1935 was passed before the guardian ad litem had been appointed for the third respondent. Having disposed of all the objections raised and in order to cure any defect that there might possibly be in the procedure before the order of the 16th March, 1936 when a guardian ad litem was appointed the Assistant Registrar passed a fresh order, recognising the assignment to the appellant, directing that his name be brought on the record and granted him leave to execute the decree against the properties set out in the application.

Respondents 2 and 3 appealed against the order of the Assistant Registrar. The appeal was heard by Gentle J. who allowed it. The learned Judge held that the power of attorney granted to Shantilal Pandya did not authorise him to assign the decree and consequently he was not entitled to institute proceedings in execution. As I have already indicated, I agree with the learned Judge that the power of attorney in itself did not confer the power, but it is clear that the decree-holders ratified the action of the agent, and on the authorities to which I shall presently refer the assignment must be held to be valid. In passing I may say that these authorities were not quoted to the learned Judge. As the Assistant Registrar held that the power of attorney granted to Shantilal Pandya did contain authority to execute the assignment I will give my reasons for holding to the contrary. The document contains only 4 paragraphs. The first paragraph merely authorises the attorney to ask, demand, sue for, recover and re ceive monies, debts, goods, chattels, effects, interest dividends or other sums to which the Company is entitled. Paragraph 2 authorises him upon non-payment to institute legal proceedings or to resort to any other procedure allowed by the law for recovering and enforcing the payment. It is said that the words which I have quoted authorise the agent to assign on behalf of his principal. It is quite clear that these words do not constitute such authority. They are to be read in conjunction with the power given to institute proceedings to recover monies due to the Company. Paragraph 3 confers upon the agent power to settle claims, but it is not suggested that there is here power to sell assets belonging to the decree-holders. Paragraph 4 is the usual paragraph authorising the agent to execute and perform other matters or things that may be necessary or expedient for the purposes previously set out and undertaking to ratify the actions of the agent within the scope of his authority. The power was clearly therefore ineffective for the purpose for which it was used in connection with this decree. But it is beyond all doubt that the decree-holders received the sum of Rs. 4,277-4-0 which the appellant paid as the consideration for the assignment and that they ratified in full the action of Shantilal Pandya. The original decree-holders have been made parties to this appeal and the learned Advocate who appears for them has confirmed the ratification in Court.

I will now deal with the effect of the ratification. A decree constitutes an actionable claim and S. 130 of the Transfer of Property Act requires that the transfer of an actionable claim shall be effected by the execution of an instrument in writing signed by the transferor or his duly authorised agent. The learned Advocate for respondents 2 and 3 concedes that the general principle is that ratification dates back to the date of the transaction. He maintains, however, that it cannot date back in this ca se as S. 130 of the Transfer of Property Act requires the agent to be authorised at the time of the execution of the instrument. He has laid great stress on the word duly but the word duly as here used must be taken to mean lawfully and there is authority that where the law requires a person to be lawfully authorised ratification will have retrospective effect and cure a defect in his authority. I will refer to two cases which related to contracts which S. 4 of the Statute of Frauds required to be evidenced in writing. The Statute of Frauds requires an agent to be lawfully authorised. The first case is Soames v. Spencer (1 Dowl & Ry. p. 32 = 24 R.R. p. 631). Here two people were jointly interested in a quantity of oil. One of them entered into a contract with regard to this oil without the authority or knowledge of the other who when he became aware of the fact refused to be bound by the contract but later gave his verbal assent. It was held that the subsequent ratification of the contract rendered it binding on the person who ratified and the ratification was considered as a contract in writing within the meaning of the Statute of Frauds. Abbot C.J. said that a subsequent ratification of a contract is equivalent to a prior authority. The second case is Maclean v. Dunn (4 Bing 722 = 130 E.R. 947) where at the time of making the contract the agent had no authority to sign a note or memorandum embodying the contract, but his action was subsequently ratified by his principal. Best C.J., said:

It has been argued, that the subsequent adoption of the contract by Dunn will not take this case out of the operation of the Statute of Frauds: and it has been insisted, that the agent should have his authority at the time the contract is entered into. If such had been the intention of the legislature it would have been expressed more clearly; but the statute only requires some note or memorandum in writing, to be signed by the party to be charged or his agent thereunto lawfully authorised, leaving us to the rules of common law, as the mode in which the agent is to receive his authority. Now, in all other cases, a subsequent sanction is considered the same thing in effect as assent at the time. Omnis ratihabitio retrotrahitur et mandato aequiparatur : and in my opinion, the subsequent sanction of a contract signed by an agent, takes it out of the operation of the statute more satisfactorily than an authority given beforehand.

After reference to the decision in Soames v. Spencer (1 Dowl & Ry. p. 32 = 24 R.R. p. 631) Best C.J., expressly stated that under the Statute of Frauds the ratification of the principal relates back to the time when the agent made the contract. I can see no difference in principle between S. 130 of the Transfer of Property Act and S. 4 of the Statute of Frauds. S. 130 of the Transfer of Property Act requires the assignment to be in writing. The object of this requirement, as in the Statute of Frauds, is to put the arrangement entered into as far as possible beyond dispute. We have here an instrument assigning the decree and we have express recognition by the decree-holders that the decree was assigned to the appellant by Shantilal Pandya on their behalf and they received the consideration. In these circumstances I consider that it is not open to the respondents to question the validity of the assignment.

The learned Advocate for the respondents has, however, contended that the decision of the learned Judge in dismissing the application can be supported on the ground that Shantilal Pandya was a benamidar for the legal representatives of the judgment-debtor. I agree with the Assistant Registrar that the appellant cannot be so regarded. Even if the story were true it would only mean that the appellant had lent them the money with which to pay off the decree. The alleged subsequent fraud would not turn him into a benamidar. But assuming this view to be erroneous the story set up by the second and third respondents has not been proved to be true. The allegations are contained in the affidavit of the person who was appointed the guardian ad litem of the third respondent and are denied in an affidavit filed by the appellant. Putting it at the highest it is word against word and there is no reason why the Court should accept the guardians word against that of the appellant. The story is in itself an improbable one and the second respondent has not supported the statements of the guardian which in itself is a very significant fact. I hold that the story of the fraudulent transfer is untrue. Whether there was any arrangement for adjustment of the decree the Court is not called upon to inquire because no adjustment has been recorded.

For the reasons indicated I hold that the appellant is entitled to execute the decree and would allow the appeal with costs here and below against respondents 2 and 3, and would restore the order of the Assistant Registrar.

The memorandum of objections will be dismissed with no order as to costs.

Madhavan Nair, J. I entirely agree.