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Dost Mahomed Vs. V. Browne and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1930Mad354; (1930)58MLJ187
AppellantDost Mahomed
RespondentV. Browne and anr.
Excerpt:
- - it is true that in a sense he was, as he states in his evidence, maintaining an establishment in madras, but we fail to see how his providing money to enable his mother and sisters to live in this house can make it his establishment or his dwelling-house ;and it makes no difference that, on the infrequent occasions (only twice in 1927) when the debtor came to madras from donakonda to visit his mother and sisters, he stayed in the house......before the date of the presentation of the insolvency petition, has ordinarily resided or had a dwelling-house within the limits of the ordinary original civil jurisdiction of the high court.2. the debtor is an engine driver in the employment of the m. & s. m. ry. co., and, for the four years immediately preceding the presentation of his insolvency petition, he has been engaged in the work of engine driver at donakonda, nellore district. it is clear from his evidence that donakonda is the place where he has ordinarily resided with his wife during that period. mr. justice kumaraswami sastri has accordingly held that the debtor has not ordinarily resided within the limits of the high court's jurisdiction as required by section 11 (6) of the act. rut the learned judge was of opinion that.....
Judgment:

Cornish, J.

1. This appeal raises a question of the High Court's jurisdiction in insolvency. The debtor, V. Browne, was adjudicated insolvent upon his own petition by this Court on the 25th July, 1928. In his petition he described himself as residing at No. 10, Old Jail Road, Royapnram, Madras. The appellant, who is the principal creditor of the debtor, as soon as he heard of the adjudication, moved the Court to annul it, his allegation being that the High Court had no jurisdiction to adjudicate the debtor an insolvent. The question depends upon Section 11 (b), Presidency Towns Insolvency Act, which requires as a condition to the exercise of the High Court's jurisdiction that the debtor, within a year before the date of the presentation of the insolvency petition, has ordinarily resided or had a dwelling-house within the limits of the ordinary original civil jurisdiction of the High Court.

2. The debtor is an engine driver in the employment of the M. & S. M. Ry. Co., and, for the four years immediately preceding the presentation of his insolvency petition, he has been engaged in the work of engine driver at Donakonda, Nellore District. It is clear from his evidence that Donakonda is the place where he has ordinarily resided with his wife during that period. Mr. Justice Kumaraswami Sastri has accordingly held that the debtor has not ordinarily resided within the limits of the High Court's jurisdiction as required by Section 11 (6) of the Act. Rut the learned Judge was of opinion that the debtor had a dwelling-house, namely, the house at No. 10, Old Jail Road, within the jurisdiction and that the Court had consequently power to adjudicate him an insolvent. With all respect we are unable to agree with this view. It has been held that a portion of a house may be the dwelling-house of the person who has the exclusive occupation of that portion, and that it is not essential that a person having a dwelling-house should have dwelt in it for any particular period: In re Hecquard (1889) 24 Q.B.D. 71. In that case, Lord Esher, referring to Section 6 of the Bankruptcy Act, 1883, which corresponds to Section 11 (b) of the Presidency Towns Insolvency Act, said:

It is quite clear that the time during which the debtor has 'ordinarily resided' or has 'had a dwelling-house' in England need not be the whole of the year before the presentation of the petition; it is to be 'within a year' before the presentation of the petition. If within the year the debtor has had a dwelling-horse in England, no time is limited during which he must have dwelt in it. If he is not a mere passing or casual visitor he has got such a hold on this country as is to make him liable to the English bankruptcy law.

3. But in the case before us the debtor is not the lessee or the tenant of the house in Old Jail Road or of any portion of it. It appears from his evidence that this house is the dwelling-house of his mother, his sisters and their children. He paid the rent, but not directly to the landlord, and it does not appear that he had undertaken any liability to the landlord for the rent. He sent it to his sister, and there can be no doubt that he contributed the money for the rent with the object of helping his mother and sisters. On his own evidence it appears that he did not get any receipts for the rent and that all he was concerned in getting were the money order receipts for the money sent by him to his sister. It is true that in a sense he was, as he states in his evidence, maintaining an establishment in Madras, but we fail to see how his providing money to enable his mother and sisters to live in this house can make it his establishment or his dwelling-house ; and it makes no difference that, on the infrequent occasions (only twice in 1927) when the debtor came to Madras from Donakonda to visit his mother and sisters, he stayed in the house. On the facts of this case we do not think that the house can be regarded as the debtor's dwelling-house. The order of adjudication was, therefore, without jurisdiction, and must be set aside. The appeal is allowed with costs. Pleader's fee Rs. 75.


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