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Muthu Reddi Vs. Chinnaswami Reddi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1920)39MLJ486
AppellantMuthu Reddi
RespondentChinnaswami Reddi
Cases Referred and Peda Venkanna v. Sreenivasa Dikshtilu
Excerpt:
- - i entirely agree with what my learned brother has said about the legal liability of the property of the 2nd defendant after partition, for it seems to me to be clearly established by ramachan-dra padayachi v......by both the first and second defendants who carried on a family business, the debt sued on being a family debt due by both the defendants. he obtained a contested decree against the 1st defendant for the amount, and he also obtained an ex parte decree in the same suit against the 2nd defendant to the extent of the family property in the 2nd defendant's hands. this decree (containing two reliefs) was assigned by the first plaintiff to the 2nd plaintiff and the 2nd plaintiff was recognized by the court (on an application in execution) as the transferee decree-holder. but on that same date, on the 2nd defendant's application, the decree so far as it was passed ex parte against him was set aside and the case was posted for re-trial so far as the 2nd defendant was concerned with both the.....
Judgment:

Sadasiva Aiyar, J.

1. The second defendant is the appellant. The facts are shortly as follows :--The first plaintiff obtained a personal decree against the 1st defendant, the brother of the second defendant for a sum of 'money due to the plaintiff by both the first and second defendants who carried on a family business, the debt sued on being a family debt due by both the defendants. He obtained a contested decree against the 1st defendant for the amount, and he also obtained an ex parte decree in the same suit against the 2nd defendant to the extent of the family property in the 2nd defendant's hands. This decree (containing two reliefs) was assigned by the first plaintiff to the 2nd plaintiff and the 2nd plaintiff was recognized by the court (on an application in execution) as the transferee decree-holder. But on that same date, on the 2nd defendant's application, the decree so far as it was passed ex parte against him was set aside and the case was posted for re-trial so far as the 2nd defendant was concerned with both the original decree holder and the assignee decree holder as co-plaintiffs. On the merits, the facts were found again against the 2nd defendant but the District Munsif gave a decree for only half the suit amount against the 2nd defendant, making him liable (as before) to the extent of family properties in his hands, the defendants 1 and 2 having effected partition after the family debt was incurred, but before the suit was brought. The Lower Appellate Court confirmed this decree. Hence this appeal by the 2nd defendant in which he has impleaded as respondent the 2nd plaintiff alone.

2. The contention on the appellant's side is that the courts below had no right to award any relief to the assignee decree-holder because the decree against the 2nd defendant which the 2nd plaintiff obtained an assignment of was subsequently set aside on the application of the 2nd defendant, that decree therefore ceased to exist ; and as 2nd plaintiff did not afterwards obtain an assignment from the 1st plaintiff of the right as creditor on which the first plaintiff brought the suit or of the right of the 1st plaintiff to continue the litigation against the 2nd defendant, the Court was not justified in giving decree in the 2nd plaintiff's favour on the claim and on the right which revived in favour of the 1st plaintiff alone.

3. I think that when a property of whatever kind is transferred, the assignee or transferee obtains not only the particular property described in the transfer deed as transferred but he also obtains in law all the rights of the transferor which the transferor then Had to protect the title to the transferred property and obtains all appurtenant and subsidiary rights and titles flowing from his position as holder of the property transferred. That proposition seems to me to flow from a broad principle of general jurisprudence which has heen recognised in numerous cases and is also mentioned in Section 3(relating to transfer of property) at page 343 of Broom's Legal Maxims, 5th Editton. For instance, where two persons X and Y exchange properties A and B and the person X who got the property B in exchange afterwards conveys away that property B to a third person (Z) who then loses his possession of the property owing to the absence of title in Y, the purchaser Z can get back the other property A from Y (to whom it had been given in exchange) on the right on which his vendor X could have got it back if he had lost possession of B before he sold it to Z. This transference of the effects flowing from a legal transaction from the property or right covered by it to another property or right substituted by law for it or revived by law on the destruction of the property or right covered can be illustrated by several other instances. It seems to me therefore that when the 2nd plaintiff got the assignment of the decree, he became ipso facto clothed with all those rights of the original decree holder (1st plaintiff) which could be enforced by the latter for the protection of his rights under the decree and for obtaining any fresh decree if that decree is set aside and further entitled to stand in the shoes of his transferor for all purposes connected with and legally flowing from the right transferred to him. (See also Sections 8, 44 and 73 of the Transfer of Property Act which are based on this sane general juristic principle). In fact, the 2nd defendant himself recognised such a right in the 2nd plaintiff when he impleaded him as co-respondent with the 1st plaintiff in the 2nd defendant's application to set aside the ex parte decree. I am therefore of opinion that the lower courts were justified in treating the 2nd plaintiff as clothed with all the rights of the 1st plaintiff when the 1st plaintiff was relegated to his rights under his original claim and to his original position as a plaintiff whose suit became still pending against the 2nd defendant when the ex parte decree was set aside.

4. The next question argued was that because the suit was brought against the 2nd defendant after the partition between the defendants 1 and 2, the 2nd defendant cannot be made liable even to the extent of the joint family properties of the defendants 1 and 2 which came to the possession of the 2nd defendant on partition. I think there is nothing in this contention having regard to the decision in Ramachandra Padayachi v. Kondayya Chetti I.L.R. (1901) Mad. 555. In the result the second appeal fails and should be dismissed with costs.

5. There is a memorandum of cross objections by the 2nd plaintiff. The contention in that memorandum is that the 2nd defendant is liable for the whole of the family debt to the extent of the family properties in his hands and not merely to the extent of half of the family debt. I think this contention is sound. The lower courts have given no grounds which can be supported by any legal principle for their confirming the plainiiff's rights against the assets in the hands of the 2nd defendant to half the family debt, the whole of that debt having been found to be binding upon both the defendants 1 and 2. The memorandum of cross objections is therefore allowed with costs.

Napier, J.

6. I am not so clear as my learned brother on the'first point that was argued before us, namely, that although the decree was set aside, there still remained in the assignee decree-holder a right of property which entitled him to a decree in his favour in the suit as re-tried. It would seem to me that this proposition carries with it also the further proposition that the first plaintiff would have no interest in the suit at all and although I recognize the use of the words of Section 8 of the Transfer of Property Act, I am not clear that it applies to this case. I am however quite clear that the judgment can be supported on the very simple ground which was relied on by the District Munsif. If the 2nd plaintiff was not entitled to a decree, the first plaintiff was entitled. He considered himself bound by his contract to assign the benefit of any decree which would be passed to the 2nd plaintiff and he requested the court to so pass a decree in favour of the 2nd plaintiff and the court has accordingly given a decree in favour of the latter. I know of no reason why the court should not do so, and I am strongly under the impression that it has been done frequently. I would therefore support the decision of the Subordinate Judge on that part of the case on those grounds. I entirely agree with what my learned brother has said about the legal liability of the property of the 2nd defendant after partition, for it seems to me to be clearly established by Ramachan-dra Padayachi v. Kondayya Chetti I.L.R. (1901) Mad. 555 and Peda Venkanna v. Sreenivasa Dikshtilu 83 M.L.J. 519 (F.B.) which explains that decision.

7. I also agree with my learned brother that the memorandum of cross objections should be allowed.


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