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Sogmal Chatrabhanjee Vs. Tharachand Chatrabhanjee and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1943Mad662; (1943)2MLJ105
AppellantSogmal Chatrabhanjee
RespondentTharachand Chatrabhanjee and anr.
Cases ReferredChidambaram v. Sellakumara I.L.R.
Excerpt:
- .....order of the district judge dismissing the petitioner's application would still be right. it may be true that the suit related to property which belonged to the petitioner's brothers under the earlier partition and had not yet become the property of the insolvent; but it is equally true that the suit related to the property that fell to the share of the petitioner in the partition and is still his. a suit for partition being one and indivisible, it cannot be regarded as a suit with regard to (a) the property of the insolvent with regard to which he cannot prosecute a suit or an appeal; and (b) a suit with regard to property belonging to the brothers with regard to which the insolvent can prosecute a suit or an appeal. the suit and appeal do therefore relate to the property of the.....
Judgment:

Horwill, J.

1. The present petition is against a very short order of the District Judge of Nellore dismissing the petitioner's application to appeal in forma pauperis.

2. The facts as represented by Mr. Umamaheswaram are that the petitioner's suit was to set aside a partition of property belonging to the petitioner and his brothers and to re-partition the property. During the pendency of the suit the petitioner became an insolvent and the Official Receiver was added as a supplementary plaintiff. The suit was subsequently dismissed. As the Official Receiver refused to appeal, the petitioner sought to do so in forma pauperis. Thereupon, the District Judge passed this short order, ' The insolvent cannot be permitted to appeal by himself in forma pauperis. No notice is necessary on this. Dismissed.

3. Mr. Umamaheswaram contends that the learned District Judge erroneously assumed that no insolvent can appeal. He contends that what vests in the Official Receiver is merely the property of the insolvent and that unless the suit--and therefore the appeal--relates to the insolvent's property, there can be no objection to the filing of a suit or an appeal by an insolvent. He refers to a recent decision of a Full Bench of this Court in Chidambaram v. Sellakumara I.L.R. (1942) Mad. 1 in which it was considered whether a creditor had a right to file a suit under Section 53 of the Transfer of Property Act to set aside an alienation made by an insolvent. The learned Judges held that the creditor could; and for two reasons : one was that a very important right was given to a creditor under Section 53 of the Transfer of Property Act and Section 28 of the Provincial Insolvency Act cannot be deemed to take away that right. The second reason was that the alienation made by the insolvent was merely voidable and not void and that therefore the creditor was litigating not with regard to the property of the insolvent but with regard to property that belonged to the alienee. Even though that principle be applied to the case under consideration, the order of the District Judge dismissing the petitioner's application would still be right. It may be true that the suit related to property which belonged to the petitioner's brothers under the earlier partition and had not yet become the property of the insolvent; but it is equally true that the suit related to the property that fell to the share of the petitioner in the partition and is still his. A suit for partition being one and indivisible, it cannot be regarded as a suit with regard to (a) the property of the insolvent with regard to which he cannot prosecute a suit or an appeal; and (b) a suit with regard to property belonging to the brothers with regard to which the insolvent can prosecute a suit or an appeal. The suit and appeal do therefore relate to the property of the insolvent. That being so, both a suit and an appeal by the insolvent are incompetent.

4. The petition is dismissed with costs.


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