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Munmohandas Jaikisondas Vs. Vizbai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom171
AppellantMunmohandas Jaikisondas
RespondentVizbai
Excerpt:
.....estate and a..........as between the decree-holder and vizbai and is kept alive nominally for the purpose of securing to vizbai hurgovandas' share in the proceeds of the sale. in that case there would have been no real decree existent at the time of the distribution, and vizbai's claim could clearly not have been allowed.3. but the agreement was not certified to the court as required by section 258 of the civil procedure code (act xiv of 1882), and is, therefore, not one which can be recognised as an adjustment of the decree. this, however, would not, we think, prevent the court from taking notice of the payment of rs. 18,000 and the past consideration for such payment, viz., the assignment of the share of the proceeds see judgment in haji abdul rahiman v. khoja khaki aruth i.l.r. 11 bom. 16 and the judge in.....
Judgment:

Charles Sargent, C.J.

1. The question in this case arises upon the application of Section 295 of the Civil Procedure Code (Act XIV of 1882) to the following circumstances:

2. Certain property of the late Hirji Dossa has been sold in execution of a decree; and the present claimants to share under the above section in the proceeds of the sale are the appellant, the decree-holder in Suit No. 8 of 1870, and the respondent Vizbai, who is admittedly the legal representative of Hirji Dosses estate and who claims as the assignee from the decree-holder Hurgovandas in Suit No. 657 of 1869 under an agreement dated the 9th November, 1886. (His Lordship read the agreement above set forth, and continued.) The agreement is virtually an adjustment of the decree. The effect of it, as a Whole, is that the decree-holder ceased to have any beneficial interest in the decree; in other words, the decree is satisfied as between the decree-holder and Vizbai and is kept alive nominally for the purpose of securing to Vizbai Hurgovandas' share in the proceeds of the sale. In that case there would have been no real decree existent at the time of the distribution, and Vizbai's claim could clearly not have been allowed.

3. But the agreement was not certified to the Court as required by Section 258 of the Civil Procedure Code (Act XIV of 1882), and is, therefore, not one which can be recognised as an adjustment of the decree. This, however, would not, we think, prevent the Court from taking notice of the payment of Rs. 18,000 and the past consideration for such payment, viz., the assignment of the share of the proceeds see judgment in Haji Abdul Rahiman v. Khoja Khaki Aruth I.L.R. 11 Bom. 16 and the Judge in chambers could, therefore, we think, properly order Hurgovandas to execute a power of attorney to Vizbai, to enable her to recover the share in the proceeds. But, however that may be, that order has not been appealed against.

4. The question for consideration, therefore, is whether Hurgovandas could assign his share to Vizbai to the prejudice of the rights of the other attaching creditors to the proceeds of the sale. Assuming for a moment that the Rs. 18,000 had come out of Hirji Dossa's estate it is plain, we think, that Vizbai could not claim to withdraw any part of the proceeds required for the satisfaction of appellant's decree. Hurgovandas' share in such proceeds would, notwithstanding the assignment, remain part of the estate of Hirji Dossa, having been purchased with his estate, and it would be entirely opposed to what was the obvious intention of the Legislature in enacting Section 295 if Vizbai could, by claiming to be the assignee of Hurgovandas share, withdraw a portion of the proceeds of the execution proceedings and so deprive the appellant of the fruits of his effort to obtain, satisfaction of his decree.

5. However, in the present case it is alleged that Vizbai obtained the Rs. 18,000, as a loan, from one Canji Parbut on the security of Hurgovandas' share so assigned to Vizbai. The actual agreement between Vizbai and Canji Parbut has been produced for the first time at the hearing of this appeal; but as the correspondence shows that appellant knew that Vizbai said she had borrowed the Rs. 18,000 from Canji Parbut and he made no effort to obtain inspection of it, although told by Vizbai that he might apply to Canji Parbut for that purpose as far back as June, 1887, and was not asked for it before the Judge in chambers, we do not think that any suspicion properly rests on the genuineness of the document. The Judge in chambers was not asked to examine Vizbai or Canji Parbut as to whether the Rs. 18,000 were raised solely on the security of Hurgovandas' share; and, lastly, Mr. Sayani stated that he was ready to swear that it was executed, as alleged, on the 9th November, 1886, the same day as that on which the agreement was passed to Vizbai by Hurgovandas. 'We think, therefore, that we must accept the contents of that document as showing the source from which the Rs. 18,000 were obtained and the nature of the security on which it was lent.

6. Now it is to be remarked, and this is important, that Vizbai was only liable for appellant's debt as the representative of Hirji Dossa, and that so far as she might have had property of her own available for the purpose - not derived from Hirji Dossa's estate - she stood in the same position as a third party who might have purchased Hurgovandas' share of the proceeds before they were realized. The purchase of Hurgovandas' share with her own money could not prejudice the appellant any more than if an entire stranger lad purchased. It would be a matter of speculation in which she, as well as any one else might engage. Can, then, the circumstance of her having borrowed the money for the purpose and given the share in the proceeds as a security to the lender alter the question? We think not. If the money did not come from Hirji Dossa's estate it cannot matter whether is came directly from Vizbai's pocket, or from another person at her request. The Courts, no doubt, very properly look with great suspicion on an arrangement of this nature; but if it is satisfied that the money was derived from a source having no connection, directly or indirectly, with the estate indebted, we think there is no distinction, in principle, between the representative of the indebted estate and a stranger. We must, therefore, confirm the order with costs.


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