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P. Krishnamachariar Vs. the Official Assignee of Madras - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Reported inAIR1932Mad256; 137Ind.Cas.571; (1932)62MLJ185
AppellantP. Krishnamachariar
RespondentThe Official Assignee of Madras
Cases ReferredTyabji Dayabhai and Co. v. Jetha Devji and Co. I.L.R.
Excerpt:
- section 16 (1) (c) :[tarun chatterjee & aftab alam,jj] ready and willing to perform-concurrent findings of fact on consideration of evidence on record that appellants-buyers were not ready and willing to perform terms and conditions of agreement for sale - buyers failing to pay balance consideration before agitating matter before supreme court held, concurrent finding cannot be interfered with. section 20: [tarun chatterjee & aftab alam,jj] whether time is the essence of contract held, many instance in contract which repeatedly showed that time was to be of essence of contract were specifically mentioned. clear condition in contract that purchasers would have to definitely deposit balance amount by date stipulated in contract for sale show that time was essence of contract. cornish, j.1. the appellant is an advocate of this court. he put in a claim to the official assignee for certain moneys due to him by the insolvent for work done for the insolvent in probate proceedings in respect of a will of which the insolvent was the executor and a legatee, and also for other work done by him on behalf of the insolvent. the official assignee disallowed a portion of the claim as excessive. there was an appeal against that order, and mr. justice stone held that the claim of the appellant should be allowed in full with interest against the estate of the insolvent. the appellant impeaches that order on the ground that he was entitled to payment from the estate of the: testator, appaswami pillai, inasmuch as he was entitled to a lien on that property as having been.....
Judgment:

Cornish, J.

1. The appellant is an advocate of this Court. He put in a claim to the Official Assignee for certain moneys due to him by the insolvent for work done for the insolvent in probate proceedings in respect of a will of which the insolvent was the executor and a legatee, and also for other work done by him on behalf of the insolvent. The Official Assignee disallowed a portion of the claim as excessive. There was an appeal against that order, and Mr. Justice Stone held that the claim of the appellant should be allowed in full with interest against the estate of the insolvent. The appellant impeaches that order on the ground that he was entitled to payment from the estate of the: testator, Appaswami Pillai, inasmuch as he was entitled to a lien on that property as having been recovered for the insolvent by his exertions in the probate litigation.

2. With regard to the first part of this contention, it appears to us that it would not have been competent for the Insolvency Court, to make an order against the estate of the testator. The only property which was vested in the Official Assignee by reason of the executor's insolvency was the property of the insolvent. The insolvency of the executor did not have the effect: of divesting him of Appaswami Pillai's estate which was vested in him as executor and of vesting it in the Official Assignee. The Insolvency Court could not, therefore, have made an order, directing the Official Assignee to satisfy the claim out of the estate of the testator.

3. With regard to the other point, I do not think that it is sustainable. There is no enactment in this country recognising the particular lien for costs which is sanctioned by the Solicitors Act, 1860, in favour of a Solicitor upon property recovered by his exertions for a client, though it has been held that Solicitors who have been admitted attorneys of an Indian High Court have this lien: Tyabji Dayabhai and Co. v. Jetha Devji and Co. I.L.R. (1927) 51 B. 855 But the appellant is an advocate and not a solicitor or attorney, and the only possible ground for supporting a claim to such a lien in his favour would be an express agreement by the client to that effect. But no such agreement is forthcoming; on the contrary it appears that the appellant took a promissory note for Rs. 3,000 as security for his costs in the probate litigation. There is, therefore, no ground for holding that appellant had a lien. Under these circumstances, the appeal fails and must be dismissed with costs.

Horace Owen Compton Beasley, Kt., C.J.

4. I agree.


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