JUDGMENT Jagdish Sahai, J.
1. Mohammad Ismail husband of respondent No. 2 Smt. Marium and the respondent No. 3 Mehar Afroz Begum and the father of respondent No. 4 Salwa used to carry on business of a contractor. He had several contracts with Government Departments and in order to finance the same entered into an agreement with the Bank by executing power of attorney (Ex. 1). The relevant portions of that power of attorney read :
"Whereas I am working as contractor to the Government in its various departments and have entered into certain contracts and will in future enter into other contracts and whereas arrangement has been made between me and the Hindustan Commercial Bank Ltd., in pursuance of which the attorneys have agreed to finance contracts and to advance me sums of money against supply bills for payments to be received by me under the contracts issued by the Government in various departments on the condition inter alia that the attorneys shall have first charge over the cheque in payment of bills and shall also be entitled to realise the amount of the bills direct from the Government and their remittances of such bills will be made direct by the Government to and in name of the attorneys and the attorneys shall repay themselves from such receipts all monies due from me and in consideration of such advances by the attorneys all monies payable to me under the contracts and bills shall be considered under arrangement as assigned unto the attorneys and we have undertaken not to create any interest charge encumbrance or assignment in favour of anyone else over any monies payable or that may become payable to us under the contracts ............ 1 the appointer hereby promise to allow, ratify "and confirm all whatsoever the said attorneys shall lawfully do or cause to be done in the premises and I hereby declare that these presents and all powers hereby granted are and shall be irrevocable as long as any claims of the attorneys against me whether for principal interest, costs, charges or otherwise remain outstanding and unpaid" ....... Sd. Mohd. Ismail"
(underlined (Quotation-marks--Editor.) by us) This document was executed on 4.5-1944. Soon after the execution of the document, above mentioned, Ismail sent a copy of the power of attorney (Ex. 1) to She Controller of Military Accounts, C, C, who by means of Ex. 2, the letter dated 22.3-1944, returned the original copy of the power of attorney sent by Mohammad Ismail to the letter after retaining a true copy of the same in the office of the Controller of Military Accounts, C. C. Arrangement envisaged by
-the power of attorney (Ex. 1) was put in operation and continued in practice. Mohammad Ismail availed himself of the over-draft facilities provided by the bank and started taking large amounts from the same. Sometime in 1948 the Bank filed suit NJ. 208 of 1949 against Mohammad Ismail for the recovery of a sum of one lakh and odds on the allegation that that represented the over draft amount taken by Mohammad Ismail. The suit was decreed and the Bank took out Execution No. 39 of 1950. At that time a large amount of money was due to Mohammad Ismail from the Military authorities and the Bank sought the attachment of this amount in execution of its decree. In the meantime the Income-tax Officer, Kanpur, sent a requisition to the Collector of the District for realizing the income-tax dues against Mohammad Ismail amounting to Rs. 2.33.412/15/- under Section 46 of the Income-tax Act of 1922. The Collector, Kanpur, asked the military authorities to withhold payment to Mohammad Ismail as also the Bank the military authorities wrote to the executing court that in as much as the Collector had attached all the amounts belonging to Mohammad Ismail in the hands of the military authorities for the realization of the income-tax dues of the latter no amount could be spared for being paid to the decree-holder. Before the executing court the submission made on behalf of Mohammad Ismail was that the amounts in the hands of the military authorities were subject to a charge in favour of the Bank and consequently the claims of the Bank had to be satisfied, before the Income Tax Department could lay its hand over the amounts of money belonging the Mohammad Ismail withheld by the military authorities. The execution court recorded the finding that there was no charge in favour of the Bank and that Government dues had a priority over the Bank's dues and that after the satisfaction of the Government dues there shall he no money belonging to Mohammad Ismail in the hands of military authorities. It, therefore, dismissed the execution application.
2. We have heard Sri Jagdish Swarup for the appellant and Sri Shanti Bhushan, the learned Senior Standing Counsel foe the respondent, the Union of Indid. No one has appeared before us on behalf of other respondents. The following two questions require determination in this case:
(1) Whether by virtue of power of attorney dated 4.5-1944 (Ex. 1) a charge had been created in favour of the Bank over the amounts due to Mohammad Ismail and withheld by the military authorities?
(2) Whether things being equal the Government dues have a priority over private dues with the result that the income tax dues in this case would have precedence over the dues of the Bank? No other question has been raised before us. We will consider the questions seriatim. Section 110, Transfer of Property Act defines a charge. It reads:
''Where immoveable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge.
Nothing in this section applies to the charge of a trustee on the trust property for expenses properly incurred in the execution of his trust, and save as . otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge."
There cannot be any manner of doubt that the transaction evidenced by the power of attorney (Ex. 1) does not amount to a mortgage. In fact, it has not been contended by either the two parties before us that it is a case of mortgage. Mr. Jagdish Swarup, however, contends that the document (Ex. 1) creates a charge. In the present case it is not immoveable property of Mohammad Ismail made security for the payment of money to the Bank. What has been done is that all sums of money payable either in cash or by cheque or through any other mode have been assigned to the Bank for payment of its dues. The case, therefore, would not be covered by Section 100 of the Transfer of Property Act. But that would not, in our judgment, make any difference because the sum and substance of the transaction evidenced by the power of attorney (Ex. 1) is to assign all amounts payable to Mohammad Ismail to the Bank. The learned Civil Judge was of opinion that the military authorities were not bound by the arrangement arrived at between Mohammad Ismail and the Bank. There are in the document (exhibit 1) clear and unambiguous words of hypothecation and it is difficult to construe that document in any other manner save that as creating a charge. We read into the document a clear intention to make an assignment in favour of the Bank of the moneys which were to fall due in favour of Mohammad Ismail. For the reasons mentioned above, we are clearly of the opinion that exhibit 1 did create a charge.
3. The learned Senior Standing Counsel contended that Section 130 of the Transfer of Property Act deals with transfers of actionable claims and in the present case sums which were to become due in future could not be treated to be a debt so as to fall within the definition of 'actionable claims' as given in Section 3 of the Transfer of Property Act. Section 3 defines 'actionable claim' as:
"Actionable claim" means a claim to any debt, other than a debt secured by mortgage of immoveable property or by hypothecation or pledge of move-able property, or to any beneficial interest in move-able property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing conditional or contingent."
4. On the basis of In the matter of Aviet Stephens--AIR 1938 Rang 1 the learned Senior Standing Counsel contends that before there can be an assignment there must be an existing debt. Learned counsel has pointed out to the following words in the power of attorney (exhibit 1):
"......Whereas I am working as contractor to the Government in its various departments...and will in future enter into other contracts ... " Learned counsel submits that inasmuch as the power of attorney (exhibit 1) mentions of contracts which Mohammad Ismail may in future enter there was no debt in respect of these likely contracts even if entered into later on, with the result that there can be no assignment. The single Judge decision of the Rangoon High Court AIR 1938 Rang 1 (supra) was reversed by a Division Bench of the same High Court in Balthazar and Son, Ltd. v. Official Assignee, AIR. 1938 Rang 426 and in that decision it was held, on the basis of the facts operating in that litigation, that case of assignment had been made out. The submission that a 'charge' cannot be created upon property which has to come into existence in future was overruled by the Calcutta High Court in Probodh Chandra v. Road Oils (India) Ltd, ILR 57 Cal 1101: (AIR 1930 Cal 782), Tripura Modern Bank Ltd. v. Nabadwip Chandra Das, 49 Cat W N 494 and Ranjit Ray v. D. A. David, AIR 1935 Cal 218. This Court had an occasion to consider such a submission in Ram Govind v. Brij Ratan Das, AIR 1937 All 424. In that case a sum of Rs. 1,000/- was awarded by the Joint Magistrate of Benaras to the complainant out of a fine paid by the accused person in a defamation case- The fine having been paid, the complainant became entitled to recover the sum of Rs. 1,000/- in terms of the order of the Joint Magistrate but before he could withdraw that amount, one of his creditors, hereinafter referred to as a creditor, instituted a suit in the Court of City Munsif, 'Benaras, claiming another sum of Rs. 45l/. and took out attachment before judgment under Court's order dated 11th November, 1929 and had the aforesaid sum of Rs. 1000/- attached. The complainant later on made statement through counsel that Rs. 45l/- out of Rs. 1000/- awarded to him (complainant) by the criminal Court be given to the plaintiff. The Court passed an order on the basis of this statement to the effect that a sum of Rs. 451/- be requisitioned from the Court of the Joint-Magistrate and paid to the plaintiff. Before the money could be paid another suit was filed for the recovery of Rs. 1010/- against the plaintiff and an attachment before judgment obtained in respect of a sum of Rs. 1000/- standing to the credit of the plaintiff in the Court of the Joint Magistrate, Benaras. The question that this Court had to decide was whether Rs. 451/- had been assigned to the plaintiff by the complainant and whether the statement made by the complainant before the learned Munsif amounted to an assignment in law. Niamat Ullah J. observed as follows :
''That the declaration made by defendant 2 amounted to assignment in law, can, in my opinion, admit of no doubt. I have already shown that the assignor had a right to the fund and that he did everything which he could to convey his right to the assignee. The right of defendant 2, to the sum of Rs. 1000/- held by the joint Magistrate amounted to "chose in action" as distinguished from "chose in possession" (Halsbury's Laws of England, Vol. 4, Section 777). A distinction exists in English Law between legal assignment and equitable assignment. There is statutory provision in England contained in the Law of Property Act, 1925, in respect of legal assignment. Even where a transaction does not amount to legal assignment for want of due formalities, English Law recognises equitable assignment under which a right is created in favour of the assignee."
The learned Judge then referred to Halsbury's Laws of England, Vol. 4, Sections 805 to 807 as follows :
"805. From the earliest times Courts of equity have always permitted and given effect to assignments of all Kinds of choses in action when made for valuable consideration and not contrary to public policy.
806. No form of words is required for an equitable assignment; the only thing that is necessary is to make the meaning plain. The assignment may be by word of mouth, unless in the particular case writing is required and no particular form of words is necessary so long as they clearly show an intention that the assignee is to have the benefit of chose in action. It may be addressed either to the debtor or to the assignee. An agreement amounting to an equitable charge may even be made out from a course of dealing between the parties. An engagement or direction to pay a sum of money out of a specified debt or fund constitutes an equitable assignment, though not of the whole debt or fund. But it is necessary to specify the debt or fund. So also a mere charge on a debt or fund operates as a partial equitable assignment. It is immaterial that the amount of the debt assigned is not ascertained at the date of the assignment.
807. In the case of future choses in action an assignment in terms present and immediate is sufficient, and will bind the subject matter when it comes-into existence, it it is of such a nature and so described as to be capable of being ascertained and there is consideration for the assignment."
Niamat Ullah J. after quoting the passages from Halsbury's Laws of England observed :
"The above rules are based on decided cases which are quoted in the work. Applying them to the facts of the present case, I find that every requirement of the rule is present. There was valuable consideration for the assignment. Rs. 451/- were due to defendant 1 from defendant 2 who made the assignment. It was in satisfaction of that sum that the assignment was made. There is nothing in Indian law which requires an assignment to be expressed in any particular words nor is a particular form prescribed for effecting it. The intention of defendant 2 to pay Rs. 451, out of the sum of Rs. 1000/- recoverable by him, to defendant 1, is clear. The words constituting the assignment were addressed to the assignee and also to the Court which had dominion over the fund. The fund was clearly specified."
5. It is true that in the case of this Court mentioned above a debt of Rs. 451 existed but that would not make any difference because as already pointed out the Calcutta cases are clear authority for the proposition that a 'charge' may be created upon property which has to come into existence in future. The words in exhibit I are and "will in future enter into other contracts" and not "may in future enter into other contracts." Mohammad Ismail was a regular contractor of the Government Departments including, the military authorities and when he talked of entering into future contracts there was no doubt in his mind that he would enter into such contracts whenever available. What Mohammad Ismail, therefore, said was that when such contracts are given he will take them and all amounts that may be due to him in respect of those contracts would stand assigned to the Bank. It is, therefore, not a case of taking an of chance contract. That is why the word used is "wil" and not "may". By means of the power of attorney (Ex. 1) a running arrangement was made between the Bank and Mohammad Ismail. This arrangement was-not for a fixed period but was to continue so long as it was not cancelled. The effect was a lasting arrangement under which the Bank was to finance Mohammad Ismail for investments made in contracts taken by the-latter and the amounts receivable by the latter were in the nature of assignments made in favour of the Bank. There might have been some substance in the submission of the learned Senior Standing Counsel if the power of attorney (Ex. 1) was to operate for a. fixed limited period. What Mohammad Ismail and the Bank did was to have executed one document which was to cover the present as also future transactions and which dispensed with the necessity of executing a similar power of attorney every time that a contract was taken by Mohammad Ismail.
The question as to what is a 'charge' was considered in National Provincial and Union Bank of England v. Charnley, (1924) 1 K B 431 Scrutton L. J. observed as follows :
"That document seems to be to contain all the requisites of an equitable charge; there is an agreement to give an interest in existing or future specific property, and it is given to secure the payment of a debt; and the equitable charge so created on that property is one which can be asserted by the bank not only against the owner of the property but also against the execution creditor, who cannot stand in a better position than the owner whose goods he has seized."
Atkin L. J. while dealing with as to what 'charge1 means observed :
"The first question that arises is whether or not this document creates a mortgage or charge, and to determine that it is necessary to form an idea of what is meant by a "charge". It is not necessary to give a Formal definition of a charge, but I think there can be no doubt that where in a transaction for value both parties evince an intention that property, existing or future, shall be made available as security for the payment of a debt, and that the creditor shall have a present right to have it made available, there is a charge, even though the present legal right which is contemplated can only be enforced at some future date, and though the creditor gets no legal right of property, either absolute or special, or any legal right to possession, but only gets a right to have the security made available by an order of the Court. If those conditions exist, I think there is a charge. If, on the other hand, the "parties do not intend that there should be a present right to have the security made available, but only that there should be a right in the future by agreement, such as licence, to seize the goods, there will be no charge."
6. In I L R 57 Cal 1101 : (AIR 1930 Cal 782) (supra) the document was similar to one before us. It was held by the Calcutta High Court that it did create a charge. For the reasons mentioned above we are of the opinion that it is not correct to say that the amounts becoming due to Mohammad Ismail in connection with future contracts could not be assigned. Apart from this legal question the learned Senior Standing Counsel has no case on facts. It has not been shown to us that the amount in dispute in the present case, i. e., the one withheld by the military authorities and which was sought to be attached by the Bank and which the income-tax authorities wanted to appropriate towards the payment of income-tax dues was not amount payable in respect or contracts already entered into on 4th May, 1944. There is no justification for the assumption which the learned Senior Standing Counsel has made in this case that the amount in the hands of the military authorities and in dispute in the present case pertains to future contracts and not to contracts already in existence on the 4th May, 1944. The Union of India in the executing court, did not set up the case for it was proved before us that these amounts relate to future Contracts i. e. those which came into existence after 4.5-1942. The submission of the learned Senior Standing Counsel, therefore, falls on this ground on tact also. For the reasons mentioned above we are of the opinion that the amount in the custody of the military authorities stood assigned in favour of the Bank and there was a charge in favour of the Bank. The Bank, therefore, had a right to attach those amounts. Once it is held that the Bank held a charge over those amounts and they stood assigned to it no question of priority of Government dues arises and even the learned Senior Standing Counsel has conceded that in such a case Government dues cannot have priority.
7. Inasmuch as arguments were advanced on the second question also we will briefly deal with the same. In England the Crown has a prior right. The legal position is summarised in the following passage in Halsbuiy's Laws of England, Volume, 7, Simonds Edition 326, para. 701:-
" Where the Crown's right and that of a subject meet at one and the same time, that of the Crown is in general preferred, the rule being "detur digniori"
Thus, the Crown cannot have a joint property with any person in one entire chattel, or such a one as is not capable of division, and where the title of the Crown and subject concur, the Crown takes the whole. So if a horse or a debt be assigned to the Crown and a subject, or where two persons have a joint property in a horse or debt and one person assigns his share to the Crown, or where a bond is made to the Crown and a subject, the Crown takes the whole, for it cannot be a partner with a subject; nor can the Crown become a joint owner of a chattel real by grant or contract, but takes the whole. Where, however, a share of real property becomes vested in the Sovereign by descent, or, it seems, otherwise, she may become at law a joint tenant, though she takes beneficially only an undivided share in proceeds of sale; and the sovereign and a subject may in equity be tenants in common."
In America the right of the Government is not so absolute. The legal position in that country has been succinctly stated in Kent's American Law, 10th Edn., Vol. I, page 264 :
"It was a power founded on the authority to make all laws which should be necessary, and proper to carry into effect the powers vested by the Constitution in the Government of the United States. Where the end was within the lawful powers of the Government, Congress possessed the choice of the means, and were empowered to use any means which were in fact conducive to the exercise of the powers granted. The Government is to pay the debts of the Union, and must be authorised to use the means most eligible to effect that object. It has a right to make remittances by bills or otherwise, and to take those precautions which will render the transaction safe. If this claim of priority interferes with the right of the state sovereignties, respecting the dignity of debts, and defeats the measures which they would otherwise have a right to adopt to secure themselves, it is a necessary consequence of the supremacy of the laws of the Union, on all subjects to which the legislative power of Congress extends."
The English Common law was introduced in this country after the Britishers conquered it. This legal right of the Crown was accepted in India in Soni Ram Rameshwar v. Mary Pinto, (1934) 2 ITR 58 : (AIR 1934 Bang 8), Secry. of State for India v. Ma Nyein Me, (1937) 5 ITR 580 : (AIR 1957 Ring 380), Manickam Chettiyar v. Income-tax Officer, (1938) 6 ITR 180 : (AIR 1938 Mad 360, Governor-General in Council v. Chotelal Shivdas, (1939) 7 ITR 411 (Bom). In the post-constitution period it was upheld in Builders Supply Corporation v. Union of India, (1955) 28 ITR 797 : (S) AIR 1956 Cal 26), Bank of India v. John Bowman, (S) AIR 1955 Bom 305, Kaka Mohamed Chouse Shaib & Co. v. United Commercial Syndicate, (1963-49 ITR 824 (Mad). In Murli Tahilram v. T. Assomal & Co., 59 Cal W N 701 : ((S) AIR 1955 Cal 423) the same view was taken.
Mr. Jagdish Swamp, learned counsel for the petitioner contends that the principle underlying the English Common Law that Crown debts have a priority is due to the special position of the British Crown and that principle cannot be applied in the case of a republic like India. After having carefully considered the submissions made at the bar and after carefully examining the authorities cited before us we have come to the conclusion that the principle of English Common law that the Crown debts have a priority has got firmly implanted in the Indian soil becoming a part of the Indian law. This was so before the constitution was enforced and the constitution has made no change in that respect. Many principles of English Common Law have been accepted as guiding principles in this country even though there is no statutory foundation for them, as for example, the equitable principles developed in England in order to mitigate rigours of the common law, the principles of magna charta, the right not to be detain-
ed without the authority of law, the light to a public high way and the right to have access to courts of law if a person can show a cause of action. In some of the decisions given after the enforcement of the Constitution, the rule of common law of England of priority of Crown debts has been sustained on the basis of Article 372 of the Constitution of India. This provision continnes intact.
"AH the laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority."
Mr. Jagdish Swarup contends that "case law" is not comprehended in the expression "all the law in force" occurring in Article 372 of the Constitution, in our judgment, it is correct that precedents or 'case law" are not comprehended in the expression "all the law in force" occurring in Article 372 of the Constitution. Bat that does not advance the case of Mr. Jagdish Swarup because the decisions in which this principle of English law was upheld followed the common law of England which got planted in the Indian soil. The decisions, therefore, did not create that right but only recognised it. Since that branch of common law got planted in Indian soil and was recognised by our law courts, it was the law in force on the date of commencement of the Constitution. We are, therefore, unable to agree with the learned counsel that Article 372 would not save this principle of English law.
It is not necessary for us to go into the question as to why this principle of English Law had been accepted in this country and became a part of the law of India. The right is not attached even in England to the person o a King. It is not so much because England is a monarchy that this plea has been up held there. It is because the State in England has taken over large functions of the Crown that the bourts there have continued the privilege, which was once the privilege of the King in favour of the State. The State has certain rights, privileges and obligations. This cannot be overlooked in a democratic set up as in India and the principle is not out of place here. In fact, its application is eminently just and necessary on the ground that even States which are republican in form require funds to maintain it and to perform the functions, duties and responsibilities of a State. In a welfare State it is all the more necessary to preserve this principle on the ground that individual good must yield to common good. But as we have stated earlier it is really not necessary to go into the question as to why this principle of English law was adopted in this country. The tact that it became a part of the law of the land before the enforcement of the Constitution admits of no doubt. Thereafter, it has been saved and continued by Article 372 of the Constitution.
8. Some argument was advanced before us to the effect that if the law giving the Crown debts priority was so well accepted, it would not have been necessary to specifically provide for the same in the shape of some statutory provisions such as are to be found in the Indian Companies Act or in the laws relating to land tenures in the various States. The statutory provisions which have recognised and enforced this right have been introduced to define the scope of that right with regard to the scheme of the particular Act in which they find place. Reliance was placed upon Governor-General in Council v. Shiromani Sugar Mills Ltd., AIR 1946 F C 16. That does not support the contention that it was not a part of the law of India that Government debts would have a priority. All that their Lordships held was that once a statutory provision had been introduced with regard to this right, then the provision, itself had got to be interpreted and the rule of common law could not be invoked with the result that the right could be asserted only between the limits provided by the statutes. Their Lordships have not said that the right of the Government to have priority for its debts was not recognised in India. For the reasons mentioned above, we are of the opinion that circumstances being the same and the nature of the debt. being the same, the Government would have a priority over the rights of a private creditor. But as stated earlier this finding will not be of any help to the Government in this case. We have already held that the amounts in the hands of the Military authorities sought to be attached by the Bank were assigned for the payment of the dues of the Bank and the Bank had over them a charge. In that view of the matter, the Government cannot claim to have a priority for the attachment of that amount in order to realise the-income-tax dues. We will also state that it is not a case where the recovery of arrears of income-tax has been made under Section 279 of the U. P. Zamindari Abolition and Land Reforms Act as arrears of land revenue. Proceedings are going on as if it were execution of a civil Court decree. In a case like that, obviously the party who had an assignment in its favour of the money in dispute will have priority over others.
9. For the reasons mentioned above, we allow this appeal, set aside the order (decree of the Court below) and direct the execution Court to attach the amount in dispute for the satisfaction of the decree of the appellant Bank. The respondent shall pay to the appellant costs of this appeal as also of the execution Court.