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Rangaswamy Padayachi and anr. Vs. Narayanaswami Padayachi by His Agent Tiruvenkata Padayachi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1911)ILR34Mad247
AppellantRangaswamy Padayachi and anr.
RespondentNarayanaswami Padayachi by His Agent Tiruvenkata Padayachi
Cases ReferredSubbaraya v. Vythilinga I.L.R.
Excerpt:
insolvency in foreign jurisdiction - effect of in other jurisdictions--discharge of debts--burden of proof. - - nor are we satisfied that immoveable property in british india vests in the trustee in bankruptcy upon an adjudication in griqualand [see subbaraya v......the first objection to the jurisdiction of the munsif that the cause of action arose out of british india need not be considered as the defendants resided within the jurisdiction at the date of suit. the second objection is that the insolvency operates as a discharge of the debt. no authority has been cited in support of that proposition. the first defendant was examined as a witness and he does not say in his deposition that an order of discharge was made. insolvency does not by itself operate as a discharge in all jurisdictions. even assuming that it does so under the french law, as to which see quelin v. moisson 1 knapp. 267: 12 e.r. 320 and murugesa chetti v. annamalai chetti i.l.r. (1900) mad. 458 it does not follow it is the law of griqualand. no statute or decision or text.....
Judgment:

1. The suit was upon a promissory note executed by the first defendant at Kimberley in Griqualand. He was adjudicated an insolvent by the High Court there before the institution of this suit at Mayavaram. The first objection to the jurisdiction of the Munsif that the cause of action arose out of British India need not be considered as the defendants resided within the jurisdiction at the date of suit. The second objection is that the insolvency operates as a discharge of the debt. No authority has been cited in support of that proposition. The first defendant was examined as a witness and he does not say in his deposition that an order of discharge was made. Insolvency does not by itself operate as a discharge in all jurisdictions. Even assuming that it does so under the French law, as to which see Quelin v. Moisson 1 Knapp. 267: 12 E.R. 320 and Murugesa Chetti v. Annamalai Chetti I.L.R. (1900) Mad. 458 it does not follow it is the law of Griqualand. No statute or decision or text book of authority has been cited as to the law of Griqualand. We are not entitled to assume in the defendant's favour that insolvency has that effect in Griqualand. Nor are we satisfied that immoveable property in British India vests in the trustee in Bankruptcy upon an adjudication in Griqualand [see Subbaraya v. Vythilinga I.L.R. (1893) Mad. 85]. Halsbury's 'Laws of England,' Section 450. We do not mean to decide either that if the immoveable property here so vested without a conveyance that would be a sufficient reason without a discharge to disentitle the plaintiff to sue in the Courts of British India. The appeal therefore fails. But we would modify the decrees of the courts below by directing the first defendant to pay the amount sued for personally and the second defendant out of the common family property.

2. The second appeal is otherwise dismissed with costs.


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