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Y.S. David Vs. Bangaru Rangaraju and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1944Mad568
AppellantY.S. David
RespondentBangaru Rangaraju and anr.
Cases ReferredRangiah Chetty v. Vajravelu Mudaliar A.I.R.
Excerpt:
- - act, that act did not apply to sales in execution, yet the principle of section 36 of the act which embodies a rule of justice, equity and good conscience could be applied and rent apportioned from day today as between a lessor and the transferee of his right in execution in the course of a year of the lease. the appeal and the revision petition fail and are dismissed with costs in the appeal only......that was a suit for the recovery of the money due on a mortgage. during the pendency of the suit a receiver had been appointed. that receiver had leased the properties and the lessee was in possession. the sale in favour of the appellant-petitioner was on 18th december 1941. under the terms of the lease granted by the receiver rent was payable on 31st december 1941. the auction-purchaser claimed a right to receive the entire rent as it was payable on a date subsequent to his purchase. but the decree-holder contended that he was entitled to the entire amount due under the lease as rent was payable to the receiver appointed in the suit and that right cannot be said to have passed to the auction-purchaser. the learned subordinate judge who had to decide the question found that the.....
Judgment:

Kuppuswami Ayyar, J.

1. The appellant in the appeal and the petitioner in the revision petition is the auction-purchaser of certain properties purchased by him in execution of the decree in O.S. No. 71 of 1937 on the file of the Subordinate Judge's Court of Narasapur. That was a suit for the recovery of the money due on a mortgage. During the pendency of the suit a receiver had been appointed. That receiver had leased the properties and the lessee was in possession. The sale in favour of the appellant-petitioner was on 18th December 1941. Under the terms of the lease granted by the receiver rent was payable on 31st December 1941. The auction-purchaser claimed a right to receive the entire rent as it was payable on a date subsequent to his purchase. But the decree-holder contended that he was entitled to the entire amount due under the lease as rent was payable to the receiver appointed in the suit and that right cannot be said to have passed to the auction-purchaser. The learned Subordinate Judge who had to decide the question found that the rent has to be apportioned as between the auction-purchaser and the receiver representing the estate and ordered accordingly; and this appeal and the revision petition have been filed against that order.

2. The matter is concluded by the decision of three Judges of this Court in Rangiah Chetty v. Vajravelu Mudaliar A.I.R. 1918 Mad. 557. It was pointed out in that case that though according to Section 2 (d), T. P. Act, that Act did not apply to sales in execution, yet the principle of Section 36 of the Act which embodies a rule of justice, equity and good conscience could be applied and rent apportioned from day today as between a lessor and the transferee of his right in execution in the course of a year of the lease. It is true that there is a decision of this Court to the contra in Subbaraju v. Seetharamaraju A.I.R. 1916 Mad. 323, but that is only a decision of a Division Bench. I am bound to follow the later decision of the Full Bench. It is represented by the Learned Counsel for the petitioner that there are observations of the Privy Council in Phirozshaw Bomanjee v. Bai Goolbai A.I.R. 1923 P.C. 171, which would throw some doubt on the correctness of the decision in Rangiah Chetty v. Vajravelu Mudaliar A.I.R. 1918 Mad. 557. There is no reference to that decision in the ruling of the Privy Council and though they raised the question as to whether the Indian rule or the English Common Law rule should be applied in a case of apportionment, they did not decide this point. The following was their Lordships observation at page 795:

But it is not necessary for their Lordships to discuss them, because it is plain that, however clear the principle which governed the character of proprietary and contractual rights, it was always open to a testator or settlor, with full power of disposition, to exclude its practical consequences.

3. There their Lordships had to construe a will and they decided the dispute on what was found to be the intention of the testator. I therefore do not think that the observations in that case could be said to overrule the decision in Rangiah Chetty v. Vajravelu Mudaliar A.I.R. 1918 Mad. 557. Following that decision I find that the learned Subordinate Judge was justified in apportioning the rent in the manner in which he has done. The appeal and the revision petition fail and are dismissed with costs in the appeal only.


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