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Rama Kamath Vs. C.L. Lobo - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1943Mad265; (1943)1MLJ22a
AppellantRama Kamath
RespondentC.L. Lobo
Cases ReferredNabakumar Singh Dhudhwia v. Fateh Singh Nahar I.L.R.
Excerpt:
- - the learned advocate for the plaintiff-receiver has relied on some observations by high in his commentary on receivers at page 681 of the third edition but what is stated there is clearly against him......the recovery of arreats of rent which accrued subsequent to her death on 19th november, 1939. the learned district munsiff who decreed the suit in favour of the guardian, there being no dispute about the truth of the claim against the defendant, held that the plaintiff was entitled to maintain the suit by virtue of an order passed by the learned district judge granting him permission to file suits and take out execution proceedings against the tenants of the estate. the learned advocate for the plaintiff-receiver rests his case in this court on this order of the learned district judge and he contends that quite apart from whether it is correct or not, it has not been challenged at any time and therefore it was not open to the defendant to contest it after the time for appealing against.....
Judgment:

Byers, J.

1. The question of law raised in this revision petition is whether the guardian of a lunatic's property appointed under Section 67 of the Lunacy Act is competent to maintain a suit after the lunatic's death for the recovery of arreats of rent which accrued subsequent to her death on 19th November, 1939. The learned District Munsiff who decreed the suit in favour of the guardian, there being no dispute about the truth of the claim against the defendant, held that the plaintiff was entitled to maintain the suit by virtue of an order passed by the learned District Judge granting him permission to file suits and take out execution proceedings against the tenants of the estate. The learned advocate for the plaintiff-receiver rests his case in this Court on this order of the learned District Judge and he contends that quite apart from whether it is correct or not, it has not been challenged at any time and therefore it was not open to the defendant to contest it after the time for appealing against it had expired. I do not think there is any substance in this objection, because the order of the learned Judge was plainly one passed in the exercise of his administrative duties in superintending the estate of this lunatic in the same way as he superintends the administration of the estates of guardians and wards and also exercises a general supervision over the conduct of insolvency affairs in his district. In this particular instance no notice to any creditor or any relatives or any other persons who might be interested was issued and I do not consider it was a judicial order against which it was necessary to move in appeal or revision in order to challenge its validity.

2. The defendant's main objection to the decree against him is that the powers of the guardian ceased with the death of the lunatic, on which date the estate would vest in the lunatic's heirs or, if there are no heirs, would escheat to Government. In support of this contention reliance is placed on two cases. The first is Nabakumar Singh Dhudhwia v. Fateh Singh Nahar I.L.R. (1934) Cal. 986, in which it was held that the principles of equity as applied to the practice of the Courts in England should be observed in the Courts of British India in cases in which there is no law extant which laid down a different procedure. The case then under consideration related to the death of one of two joint guardians and the powers of the survivor pending the appointment of a successor but the principle enunciated in that case is relied on. Following this, reliance is placed on the case of In re, Wheater (1928) 1 Ch. 223 in which it was held that the jurisdiction in lunacy ceased on the death of the lunatic and that the Master in Lunacy had therefore no jurisdiction to make an order regarding what should be done with certain funds in respect of which an order had been passed shortly before the lunatic's death. The learned advocate for the plaintiff-receiver has relied on some observations by High in his Commentary on Receivers at page 681 of the third edition but what is stated there is clearly against him. In the lower Court the learned District Munsiff does not appear to have noticed the distinction between an asset which accrued due prior to the death of ' 'the lunatic and an asset which accrued subsequent to the death and therefore vested without doubt in the subsequent owners of the estate. While there is something to be said for the argument that the receiver would have power until the appointment of an administrator or the grant of probate to realise the assets which be longed to the estate of the lunatic and accrued due before her death, it is difficult to see what jurisdiction he could have over money which did not fall due for payment until after the death of the lunatic. In the present case the claim for the rent relates to a period subsequent to the lunatic's death and so the right of action would vest in the heir entitled to take the property after the death of the lunatic. Therefore, leaving on one side the question whether the receiver would have power to realise assets outstanding at the time of the lunatic's death, I find that in respect of this claim which arose subsequent to the death the Court had no jurisdiction to sanction the institution of proceedings nor had the receiver any right to maintain the suit.

3. In the result the petition is allowed and the decree of the lower Court set aside and the suit ordered to be dismissed with costs throughout.


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