Skip to content


Kuppu Ramanatha Aiyar (Dead) and ors. Vs. Thoguluva S. Nagendra Aiyar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1924Mad223; 76Ind.Cas.805; (1923)45MLJ827
AppellantKuppu Ramanatha Aiyar (Dead) and ors.
RespondentThoguluva S. Nagendra Aiyar
Cases ReferredSriramulu Naidu v. Andalammal
Excerpt:
- - ' that case has discussed the english decisions on the point as well as the earlier indian decisions and we can see no reason why we should not follow the principle laid down there as regards the insolvent's after-acquired property. however, it is clearly distinguishable from the present case on the very ground that the learned judges distinguished it from sriramulu naidu v......proceedings no receiver seems to have been appointed at first, and it was only on 29-3-1919 the official receiver was appointed as receiver. the defendant pleaded in the suit that the plaintiff was an undischarged insolvent and that he was not entitled to bring the suit or to go on with it. the district munsif gave effect to that objection and dismissed his suit. the subordinate judge has reversed that decision and remanded the suit for disposal according to law. it is against that decision that the present appeal has been filed.2. the question which we have to consider is whether, in the case of after-acquired property, the insolvent is entirely barred from maintaining any suit in respect of it and whether the receiver alone can sue. it is contended for the appellant that the.....
Judgment:

1. This case refers to what is ordinarily called 'the after-acquired' property of an insolvent. The respondent after he was adjudicated an insolvent in 1909 seems to have started a partnership with the appellant. He has now brought a suit to wind up that partnership and for an account and for payment over to him of any money that may be found due to him. The suit was brought in 1919. The partnership had been started in 1911 and it seems to have lasted till the end of 1916. In the Insolvency proceedings no receiver seems to have been appointed at first, and it was only on 29-3-1919 the Official Receiver was appointed as Receiver. The defendant pleaded in the suit that the plaintiff was an undischarged insolvent and that he was not entitled to bring the suit or to go on with it. The District Munsif gave effect to that objection and dismissed his suit. The Subordinate Judge has reversed that decision and remanded the suit for disposal according to law. It is against that decision that the present appeal has been filed.

2. The question which we have to consider is whether, in the case of after-acquired property, the insolvent is entirely barred from maintaining any suit in respect of it and whether the receiver alone can sue. It is contended for the appellant that the Receiver alone can sue, because it is said, that all the properties of the insolvent including his after-acquired property are vested in the Official Receiver by Section 28, Clauses 2 and 4 of the Insolvency Act V of 1920. The argument is that, as the right to the property becomes vested in the Official Receiver, no right exists in the insolvent himself and that, therefore, he is not entitled to maintain a suit to enforce any claim to recover such property; and it is said that, under the Insolvency Act V of 1920, no difference is made between the after-acquired property of the insolvent and the property owned by him at the time of the adjudication. The learned Vakil for the appellant relies on the case of Subbaraya Chettiar v. Papathi Ammal (1918) M.W.N. 289 as an authority in his favour for maintaining the proposition that he has put forward. But that very case has distinguished an earlier case of Sriramulu Naidu v. Andalammal 17 M.L.J. 14 which following the case of Fatimabibi v. Fatimahibi I.L.R. 16 B. 462 , held that, in the case of after-acquired property the insolvent has a right to maintain a suit, subject to the Official Receiver or Official Assignee intervening and that if the Official Receiver or Official Assignee did not intervene, the insolvent was entitled to go on with the suit and that the principle to be deduced from the authorities that had been cited was that the insolvent had 'a right against all the world except the Official Assignee.' That case has discussed the English decisions on the point as well as the earlier Indian decisions and we can see no reason why we should not follow the principle laid down there as regards the insolvent's after-acquired property. This case, as already stated, has been distinguished in the Madras Weekly notes case which is a case regarding the property owned by the insolvent at the time of the adjudication. Whether the case was rightly decided or not, we need not express any opinion at present. However, it is clearly distinguishable from the present case on the very ground that the learned Judges distinguished it from Sriramulu Naidu v. Andalammal 17 M.L.J. 14 . No authority has been cited to show that, as regards the after acquired property, the insolvent cannot maintain a suit if the Official Receiver or Official Assignee does not interfere. We have thereforecome to the conclusion that the Subordinate Judge was right in the view he took as regards this point, that is, as the property here is the after-acquired property, the insolvent was entitled to continue the suit. The subordinate Judge has also dealt with another point, namely, that the share of a partner is not such a property as can be attached under the Civil Procedure Code and is thus not such property as would vest in the Official Receiver. That position has not been supported by the Respondent's learned Vakil and we think it is not correct. In the view we have taken, it is not necessary to pursue that point. The appeal fails and is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //