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Kamati KondammA. Vs. Medam Subbanna Chetti - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Reported in(1893)3MLJ174
AppellantKamati KondammA.
RespondentMedam Subbanna Chetti
Cases ReferredGnanambal v. C. Srinivasa Pillai
Excerpt:
- - 3. the debt now in question was distinctly admitted by plaintiff as her son's guardian in the previous suit......under the will.2. the subsequent adoption made by the testator and this plaintiff's conduct in the previous suit are inconsistent with her present contention. there is this reasonable foundation for the belief that the will was revoked. even assuming the will to be still in force we do not think that plaintiff would be entitled to take the property free from the debts of the testator. the will can only operate as a gift from the date of the testator's death, and whereas in the will no provision is made for the payment of debts, the gift must be taken to be subject to the payment of such debts, otherwise it would be a disposition in fraud of creditors. the cases cited in mayne's hindu law section 304 are not in point, as in those cases there was competition between creditors and bona fide.....
Judgment:

1. We are of opinion that the suit has been rightly dismissed. The will purports to give the property to the wife on the ground that 'there are no other principal heirs except you.' It also declares, that it is made 'with a view to persons entitled getting their respective rights after my lifetime.' It is admitted that subsequent to the execution of the will the testator and plaintiff adopted the latter's brother's son. It is also in evidence that when defendent instituted Original Suit No. 4 of 1891 against the adopted son (and another) the present plaintiff as his guardian ad litem admitted that the adopted son was Venkatachalam's heir, and did not set up the will or her interest in the property of her husband, though the property now in dispute had been attached in anticipation of a decree. It was not until the creditor obtained a decree against the adopted son that she came forward alleging, contrary to his previous statement, that this property belonged to herself under the will.

2. The subsequent adoption made by the testator and this plaintiff's conduct in the previous suit are inconsistent with her present contention. There is this reasonable foundation for the belief that the will was revoked. Even assuming the will to be still in force we do not think that plaintiff would be entitled to take the property free from the debts of the testator. The will can only operate as a gift from the date of the testator's death, and whereas in the will no provision is made for the payment of debts, the gift must be taken to be subject to the payment of such debts, otherwise it would be a disposition in fraud of creditors. The cases cited in Mayne's Hindu Law Section 304 are not in point, as in those cases there was competition between creditors and bona fide purchasers for consideration from the heir. It has been held in Gnanambal v. C. Srinivasa Pillai, 4 M. H. C. R 86 that voluntary transfers of property which reduce the means of the debtors by whom they are made are mala fide and void when they are shown to have so far reduced such means as to justify the inference of an intention to hinder, delay, or defraud creditors.

3. The debt now in question was distinctly admitted by plaintiff as her son's guardian in the previous suit.

4. This appeal fails and is dismissed with costs.


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