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Mahaboob Ali Saheb and anr. Vs. Khudratulla and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1943)2MLJ630
AppellantMahaboob Ali Saheb and anr.
RespondentKhudratulla and anr.
Excerpt:
.....if they failed to do so to render themselves liable for compound interest if and when the money-should be claimed by the..........the purchase of land was not completed within the four months, the petitioners were to deposit the minors' share of the cash amount with the imperial bank of india in their own names and their liability for interest would thereupon cease, but if they failed to make the deposit at the end of the four months' period they would be liable for compound interest at the stipulated rate. it would appear that the petitioners, have paid the amounts due under this document to the adult heirs and also to all, except two of the minors. those two are the present respondents, who, on the date when this petition was filed, were respectively aged 19 and 15 years. it would appear that they did deposit the full amount in the imperial bank but that they subsequently withdrew the amount which represented the.....
Judgment:

Wadsworth, J.

1. This Civil Revision Petition arises out of an order dismissing an application under the rules framed under Madras Act IV of 1938, to determine the amount of the debt. The application was dismissed on the ground that the debt was not one amenable to the processes of the Act. We have held in such cases that no appeal lay under the rules. The amendment introduced by the Madras Agriculturists' Relief Amendment Act of 1943, substantially repeats the provisioions of Rule 9 of the rules except that an appeal is allowed not only from an order declaring the amount due to the creditor, but also from an order declaring the debt to has been discharged. No right of appeal is however given when an application for a declaration.is dismissed on the ground that the debtor is not an agriculturist or the debt is not one which can be scaled down under the Act. An objection was taken by Mr. Rajah Ayyar on behalf of the respondents that there are no grounds for revision in this case. As we are of opinion that the revision has to fail on the merits we do not propose to go into this objection.

2. The liability which the petitioners desired to scale down arose out of the settle-ment of a dispute relating to the estate of the father of the petitioners', one Hyder Ali Hyder Ali died leaving three children, namely, the two petitioners and a daughter Fatimunnissa. Fatimunnissa herself died later and it would appear that she claimed, her share in the estate before her death. After her death her husband and her children started proceedings to claim her one-fifth share of the estate of Hyder Ali Mediators intervened and the dispute was settled by the deed Ex. P-I dated 10th September. 1929. The main provisions of that deed were that in consideration of the relinquishment by the heirs of Fatimunnissa of the share which they were claiming in the assets of Hyder Ali, the two petitioners undertook to pay a sum of Rs. 13,090 within four months. They also undertook to recognise the right of Fatimunnissa's heirs to a thatched house of the value of Rs. 500. The share of the major heirs in this Rs. 13,000 was to be paid to them within four months. The share of the minor; heirs was to be utilised for the purchase of land to the value of their share which was to be put into the names of the minors, but was to be held by their father, the husband of Fatimunnissa, until they attained majority, and if at any time any one of the minors should repudiate the settlement or claim the full share in the estate, the property purchased out of the minor's share of this money together with the income thereof was to be handed over by the father to the present petitioners. There was a further provision in the deed of settlement that if the arrangement for the purchase of land was not completed within the four months, the petitioners were to deposit the minors' share of the cash amount with the Imperial Bank of India in their own names and their liability for interest would thereupon cease, but if they failed to make the deposit at the end of the four months' period they would be liable for compound interest at the stipulated rate. It would appear that the petitioners, have paid the amounts due under this document to the adult heirs and also to all, except two of the minors. Those two are the present respondents, who, on the date when this petition was filed, were respectively aged 19 and 15 years. It would appear that they did deposit the full amount in the Imperial Bank but that they subsequently withdrew the amount which represented the share of the present respondents in the agreed sum.

3. The lower court dismissed the application on two grounds: firstly on, the ground that the obligation was one covered by Section 4(f), being a liability arising out of a breach of trust; and secondly on the ground that the liability was excluded from the provisions of Sections 8 and 9, because it represented unpaid purchase money for which a charge is provided under Section 55(4)(b) of the Transfer of Property Act, applying Section 10(2)(ii) of Madras Act IV of 1938. Without going into the correctness of these findings it seems to us that there is a much simpler reason for rejecting the application.

4. By the terms of this settlement deed, so far as the minor petitioners were concerned, the obligation of the petitioners was to have ready a sum of money for payment of the father of the minors if and when the father should make arrangements for the purchase of land. That land when purchased was to be held in the names of the minors by the father and was to be handed over to the minors on attaining majority if they accepted the settlement, but was to be transferred to the petitioner's themselves together with all the accrued profits, if the minors repudiated the settlement. In case the father did not make arrangements for the purchase of land, the only liability of the petitioners was to put the money into deposit in the Banker if they failed to do so to render themselves liable for compound interest if and when the money-should be claimed by the minors. In our opinion there was on the 22nd March, 1938, no debt of an ascertained amount due from the petitioners to the respondents who were on that date both of them minors. There was a contingent liability enforceable by the father to finance the purchase of property which probably would go ultimately to the minors, but might revert to the petitioners themselves; but as the father had not made any arrangements to purchase property there was no enforceable liability to pay any particular amount of him. So far as the respondents' were concerned, any suit by them for the share of the amount due under the settlement deed would necessarily have been dismissed had it been filed on the 22nd March, 1938, as being premature. It would only be on their attainig; majority and ratifying the settlement that they could claim any sum of money from the petitioners under the settlement deed. It cannot therefore be said that there was at the commencement of the Act a debt due from the petitioners to the present respondents. The application was therefore one which did not lie.

5. In thie view we dismiss the Civil Revision Petition with costs.


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