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Lakshmana Vasudeva Co. Vs. Gopalan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 106 of 1956 (K)
Judge
Reported inAIR1959Ker376
ActsProvincial Insolvency Act, 1920 - Sections 41 and 75; Madras Marumakkattayam (Amendment) Act, 1958
AppellantLakshmana Vasudeva Co.
RespondentGopalan
Appellant Advocate V.P. Gopalan Nambiar and; P.C. Balakrishna Menon, Advs.
Respondent Advocate K.N. Karunakaran, Adv.
Excerpt:
- - that, the registrar in dealing with such an application has a discretion cannot be doubted and, if we had agreed with his view of the facts, and the appeal had been only against the mildness of his decision, i think it would nave been difficult (i do not say impossible, but it would require a very strong case) to induce this court to interfere......only a conditional discharge should have been granted as the respondent was entitled to a share in tavazhi properties. these objections were overruled by the court of first instance and an order of absolute discharge was given. this was confirmed in appeal and the petitioner has come up in revision challenging the correctness of the concurrent orders.2. the first ground urged by the learned counsel for the petitioner is that the respondent was guilty of fraudulent conduct inasmuch as he executed a release of his share in tavazhi properties to his sister before applying for adjudication. the tavazhi was undivided at that time and as pointed out by the courts below, the transfer was absolutely inoperative. the property belonged to the tavazhi and the respondents mother was alive on the.....
Judgment:
ORDER

T.K. Joseph, J.

1. The respondent was adjudged insolvent by the Subordinate Judge, Tellicherry in I. P. 1/1949. He applied for discharge under Section 41 of the Provincial Insolvency Act. The petitioner who was the principal creditor opposed the grant of an order of absolute discharge on two grounds viz., (i) that the respondent was guilty of fraud and (ii) that if at all only a conditional discharge should have been granted as the respondent was entitled to a share in Tavazhi properties. These objections were overruled by the Court of first instance and an order of absolute discharge was given. This was confirmed in appeal and the petitioner has come up in revision challenging the correctness of the concurrent orders.

2. The first ground urged by the learned counsel for the petitioner is that the respondent was guilty of fraudulent conduct inasmuch as he executed a release of his share in Tavazhi properties to his sister before applying for adjudication. The Tavazhi was undivided at that time and as pointed out by the Courts below, the transfer was absolutely inoperative. The property belonged to the Tavazhi and the respondents mother was alive on the date of the transfer so that he could not ask for partition. It cannot be said that the respondent who was a member of the Tavazhi had a definite alienable share in such properties at that time. This cannot, in my opinion, be treated as a valid ground for refusing discharge.

3. The second ground is more substantial. Even if the respondent had no transferable share in Tavazhi properties on the date of his adjudication, he would have obtained a share after the life time of his mother. In such a case it is open for the Court to make the discharge conditional and to direct that such share when acquired should vest in the Official Receiver. The decision in Abdul Jabar V. Din Muhammed, AIR 1934 Lah 659 (1) is in point. That was a case of an appeal from a conditional order of discharge and the condition was that the insolvent should hand over to the Official Receiver all the assets which he might inherit from his father.

It was held that the Court was competent to impose such a condition under Section 41(2)(c) of the Provincial Insolvency Act and that the possibility of the insolvent's father not dying for a long time or not leaving any property for his son was no ground for making the discharge unconditional. I accept this view and hold that the order of discharge should have been subject, to a similar condition that the insolvent's share in Tavazhi properties when obtained should vest in the Official Receiver.

It has also to be pointed out that even though the insolvent could not enforce partition during his mother's life time according to Marumakkattayam law as it stood at the time of the decision by the Courts below, the position has become altered by the Madras Marumakkattayam (Amendment) Act (26 of 1958, Kerala) which has conferred a right to enforce partition even during the mother's life time. It is therefore clear that the respondent's share in his Tavazhi properties should vest in the Official Receiver for the benefit of his creditors.

4. It was contended on behalf of the respondent that this Court should not interfere with the concurrent orders of the Courts below in revision. Reliance was placed on the decision in Ex parte Castle Mail Packets Co.; In re Payne, (1886) 18QBD 154. This decision if at all supports the petitioner. That was an appeal from an order of the Registrar granting the bankrupt suspending its operation for a period of 12 months. Lord Esher, M. R. observed :

'The Registrar upon this application has given a modified judgment, not granting an immediate discharge, but postponing it for a year. That, the Registrar in dealing with such an application has a discretion cannot be doubted and, if we had agreed with his view of the facts, and the appeal had been only against the mildness of his decision, I think it would nave been difficult (I do not say impossible, but it would require a very strong case) to induce this Court to interfere. But if the learned Registrar has come to a conclusion of fad with which this Court does hot agree, we cannot then take into account his exercise of discretion upon a view of the facts which we hold to be erroneous'.

5. The fact that the Courts below have passed concurrent orders of discharge is no bar to interference in revision in proper cases.

6. In the result the concurrent orders aremodified and the respondent is given an order ofdischarge subject to the condition that his share inTavazhi property shall forthwith vest in the OfficialReceiver. The Civil Revision Petition is allowed asindicated above.


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