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Seshan Pattar's son Ambi alias Subramanian Pattar and Anr. Vs. Thandan Kavukal Veeran's son Kelan and Ors. (15.01.1937 - MADHC) - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1937)2MLJ728
AppellantSeshan Pattar's son Ambi alias Subramanian Pattar and Anr.
RespondentThandan Kavukal Veeran's son Kelan and Ors.
Cases ReferredMina Kumari Bibi v. Raja Bijoy Singh Dudhuria
Excerpt:
.....clear that any private alienation pending an attachment is to be void only 'as against all claims enforceable under the attachment 'the question shortly therefore is, does the claim put forward on behalf of the receiver answer this description? it is perfectly true that the decree-holder could have taken further proceedings without effecting a second attachment, but what in actual fact happened was, that the rents as distinguished from the property were attached and they were the subject-matter of the second attachment and it was in furtherance of the last-mentioned attachment that the receiver was appointed. the appeals before him were filed not by ambi, the unsuccessful plaintiff but by rama pattar who, as already stated, was impleaded as defendant. we fail to see why in these..........rama pattar, in whose favour alone a decree could be passed. therefore it is not surprising that ambi claimed that a decree either in his favour, or, in favour of rama pattar, in the alternative, should be passed. but, whether the procedure was right or wrong, he was there on the record as a party and the judgment dismissing the suits negatived his right. we fail to see why in these circumstances he should not have an independent right of appeal. ambi, who had nothing subba to lose by the adverse judgment, was content to leave the matter there. but does that prevent any member of the family, whose interest is imperilled, from filing an appeal? to all intents and purposes, the mortgage still remained the property of the joint family; that is the effect of the partition arrangement being.....
Judgment:

Venkatasubba Rao, J.

1. These are two batches of civil revision petitions and although they both arise out of similar claims, the contentions that have been put forward and therefore require to be considered are different. For a proper appreciation of the points raised, it will be necessary at the outset to set out the relevant dates.

(i) On 11th November, 1927, Kunjunni Nair (the respondent) in the suit filed by him against one Ramaswami Pattar (O.S. No. 45 of 1927) attached the land in question before judgment.

(ii) On 8th December, 1927, a decree was made in that suit and we understand (although this is of no consequence) that in it was specifically mentioned that the attachment before judgment was confirmed.

(iii) On 24th June, 1928, the suit land, attached as mentioned above, was mortgaged to Ambi alias Subramania Pattar (the petitioner before us) who, on the strength of his mortgage, filed most of the suits in the Courts below claiming rent.

(iv) On 12th September, 1928, Kunjunni Nair, the decree-holder in O.S. No. 45 of 1927, attached the rents due in respect of the suit land for a portion of the year 1104 (1928 A.D.) payable in the month of Kanni. As will be observed, what was attached before judgment was the land itself; the attachment now effected was of the rents due for a period.

(v) On 15th November, 1928, Kunjunni Nair, the decree holder, was appointed receiver in execution for the purpose of collecting the rents attached.

2. In the first batch of Petitions (Nos. 1923 of 1929, 74 of 1930, 75 of 1930, 163 of 1930, 164 of 1930 and 172 to 174 of 1930) the question raised is, which of the two persons has a valid right to the rents claimed--Ambi the mortgagee or Kunjunni Nair, the decree-holder-receiver? As will appear presently, in the second batch of cases the mortgage in favour of Ambi was impugned as fraudulent, but that contention does not seem to have been raised in the lower Court in the present batch. The only question therefore that arises for decision in the first batch of petitions, as already stated is, which of the two rival claimants is entitled to the rents It was argued by Mr. Govinda Menon for the respondent that the mortgage in favour of Ambi, effected as it was during the subsistence of, and contrary to, his attachment, would be void. If this con tention were right, Ambi's claim to rent would fail. But the learned Counsel's argument ignores, as Mr. Sitarama Rao rightly points out, the effect of the cardinal words in Section 64, Code of Civil Procedure, which makes it perfectly clear that any private alienation pending an attachment is to be void only ' as against all claims enforceable under the attachment '. The question shortly therefore is, does the claim put forward on behalf of the receiver answer this description? The trans fer in favour of Ambi was made, as the dates show, subse quent to the first attachment, but what we have to decide is whether the claim now made by the respondent is one arising under that attachment, for, the effect of the section is, not that a private transfer is absolutely void but void only as against the claims enforceable under the attachment. If therefore the respondent's claim can in law be regarded as one made under the first attachment, it must take precedence of the mortgagee's right. But the claim to rent which the respondent puts forward, arises not in virtue of the first attachment but of the second. It is perfectly true that the decree-holder could have taken further proceedings without effecting a second attachment, but what in actual fact happened was, that the rents as distinguished from the property were attached and they were the subject-matter of the second attachment and it was in furtherance of the last-mentioned attachment that the receiver was appointed. The private transfer in favour of Ambi was on a date previous to the second attachment and could not be affected by any claim arising under it. Going back to the first attachment effected of the land, granting that this was followed up by further proceedings, would the purchaser at an execution sale or, for that matter, a receiver that might be appointed in execution, be entitled to the rents? It cannot admit of doubt that such a person can have no claim to the rents during the intervening period, that is, between the date of the attachment of the land and the Court sale, or, the appointment of the receiver, as the case may be. In short, the claim of the respondent is one arising under the second and not the first attachment, and the transfer in favour of Ambi, though subsequent to the latter, was antecedent to the former and it follows from this, that the respondent's contention cannot prevail. Mina Kumari Bibi v. Raja Bijoy Singh Dudhuria (1916) 32 W.L.J. 425: L.R. 44 IndAp 72: I.L.R. 44 Cal. 662 is an instructive case. There were two decrees and there was an attachment under each of them. The private transfer in favour of the appellant was made five years after the attachment A but one day before the attachment B and it was at the sale held in pursuance of the attachment B that the respondent purchased the property. Held, that the earlier attachment, whether it was subsisting or not, did not give the respondent any right to the property as against the appellant. Referring to Section 276 of the Code of 1882, corresponding to Section 64, their Lordships observe:

That section provides that when an attachment has been made as there described any private alienation of the property attached during the continuance of the attachment shall be void against all claims enforceable under the attachment. Ex hypothesi, the alienation to the plaintiff was not during the continuance of the attachment in execution Case No. 16 of 1907, or, in other words, the attachment under which the execution sale to the decree-holder was made. Therefore it cannot be avoided by that attachment.

3. In the result, the following civil revision petitions (Nos. 1923 of 1929, 74 of 1930 and 172 to 174 of 1930) are allowed, but we make no order as to costs here or in the Court below. In each case there will be a decree for the amounted claimed.

4. C.R. Ps. Nos. 163 and 164 of 1930 of this batch have been settled and withdrawn. Dismissed. No costs.

5. C.R.P. No. 75 of 1930.--In this, the receiver is the petitioner and not Ambi. From what we have said, it follows that this petition also should stand dismissed. There will be no order as to costs-either here or in the Court below.

6. We now turn to the second batch (C.R.P. Nos. 219 of 1935 to 246 of 1935 and 581 of 1935). Here, as already observed, the mortgage in favour of Ambi alias Subramania Pattar was impeached, but the lower appellate Court has found, differing from the Court of First Instance, that the transaction is valid and we see no reason for disturbing that rinding of fact.

7. But the question that has been argued, arises in somewhat curious circumstances. Ambi, on the date of the mortgage in question, was the manager of a joint Hindu family consisting of himself and his brothers Narayana Pattar and Rama Pattar. Subsequently there was a partition and it was to Rama Pattar that the debt evidenced by the mortgage was allotted. The partition arrangement was in writing, which however was not registered. Under the decisions, such a writing, though affording evidence of a division in status, is inadmissible for proving the terms of the partition. Ambi, realising this, filed suits for rents in his own name, impleading, however (quite unneces sarily), Rama Pattar as defendant. The first Court, holding, as already stated, that the mortgage in his favour was fraudulent, dismissed his suits. The learned District Judge on appeal, though he reversed the first Court's finding of fact, still confirmed its judgment. It happened in this way. The appeals before him were filed not by Ambi, the unsuccessful plaintiff but by Rama Pattar who, as already stated, was impleaded as defendant. The learned Judge held that the appeals filed by him were incompetent and dismissed them for that reason, thus upholding, though on a different ground, the first Court's judgment. The short question is, were the appeals filed by Rama Pattar incompetent? The partition arrangement not having been registered, the suits, it must be held, were properly instituted in the name of Ambi. He was not only the manager of the family but the person in whose name the mortgage was taken. So he rightly instituted the suits as plaintiff; but should the Court hold that, the writing was admissible, the right would vest in Rama Pattar, in whose favour alone a decree could be passed. Therefore it is not surprising that Ambi claimed that a decree either in his favour, or, in favour of Rama Pattar, in the alternative, should be passed. But, whether the procedure was right or wrong, he was there on the record as a party and the judgment dismissing the suits negatived his right. We fail to see why in these circumstances he should not have an independent right of appeal. Ambi, who had nothing subba to lose by the adverse judgment, was content to leave the matter there. But does that prevent any member of the family, whose interest is imperilled, from filing an appeal? To all intents and purposes, the mortgage still remained the property of the joint family; that is the effect of the partition arrangement being inadmissible in evidence. If this be so, it ought to be open to any member of the joint family to challenge the judgment negativing its right. Raman Pattar was one such member and even had he not been on the record, it would have been open to him, with the Court's leave, to file an appeal. But, owing to what must now be regarded as an accident, he was on the record as a party and that, if at all, should be an additional ground for holding that the appeal was competent.

8. The lower Court observes that had Raman Pattar applied to it to be transposed as plaintiff, his application would have been barred by limitation. This question does not really arise but we must point out that the learned Judge's view is wrong. The general rule enacted in Section 22 of the Limitation Act as to the effect of substituting or adding a new party is subject to certain exceptions mentioned in Clause (2) of that provision, one of them being, that the rule of limitation enacted in the main part does not apply where there has been a transposition of the parties already on the record.

9. In the result, except as regards the petition to be mentioned, all the other petitions are allowed; in each case the plaintiff will have a decree for the amount claimed. There will be no order as to costs either here or in the Courts below. As to C.R.P. No. 581 of 1935, it is dismissed but without costs.

10. We have now to make orders in respect of certain matters which are common to both sets of civil revision petitions. The need for those orders has thus arisen. In the first place, the tenants have not been represented in this Court. Secondly, while general questions have been argued, the counsel have not been in a position to deal with such facts as are peculiar to each case. The following order is made by consent.

1. Mr. Govinda Menon believes that in some cases to which Ambi or his brother has been a party, the claim of his client has been affirmed to rents due from some tenants. If any such judgments are produced in three weeks from to-day the decrees in the concerned cases will be vacated; otherwise they will stand.

2. If in any one of the cases before us the tenants have pleaded that rents had previous to the suits been paid to the respondent, to that extent there will be no decrees against the tenants and this will be taken note of by the office when drafting the decrees.

3. If the respondent, in pursuance of the lower Court's decrees, has before this date, been paid by any of the tenants, any rents, the petitioner or his brother will not be entitled to have restitution of those rents. It is stated that wherever there has been such receipt of rents, it has been under orders of Court.


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