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(Marudugula) Subbarayudu Vs. Pandivi Satyanandam and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1933Mad609
Appellant(Marudugula) Subbarayudu
RespondentPandivi Satyanandam and ors.
Cases ReferredRamaswami Chettiar v. Ramaswami Iyengar
Excerpt:
- - chokkier air 1928 mad 531 and he argues that the sons are in a better position than a third party claiming to hold under the insolvent in this matter. chokkier air 1928 mad 531 it was good law here, and the court was entitled to remove obstruction by the sons of insolvents......of law and against this he has filed this revision petition. one marudugula subbarayudu had two sons venkatasubbayya and venkataratnam. they were both adjudicated insolvents. the wife of the former is defendant 8 and the wife of the latter is defendant 9. venkatasubbayya had two sons, the plaintiff and one appala raju, whose son is defendant 7. venkataratnam's son is defendant 6. all these formed a joint hindu family. the official receiver sold the properties in dispute and some other properties to the respondents who were defendants 1 to 5 an the suit. the sale was in 1926. it was obstructed by certain persons including a son-in-law, 3rd obstructor, who filed a petition under section 68, provincial insolvency act. this was dismissed and the appeal against it also to the high court in.....
Judgment:

Walsh, J.

1. The plaintiff who is the petitioner in this Civil Revision Petition filed a suit under Section 9, Specific Relief Act, for possession of a certain part of a house on the ground that he has been forcibly dispossessed by the Official Receiver. The Court dismissed the suit holding that he had not been dispossessed otherwise than in due course of law and against this he has filed this revision petition. One Marudugula Subbarayudu had two sons Venkatasubbayya and Venkataratnam. They were both adjudicated insolvents. The wife of the former is defendant 8 and the wife of the latter is defendant 9. Venkatasubbayya had two sons, the plaintiff and one Appala Raju, whose son is defendant 7. Venkataratnam's son is defendant 6. All these formed a joint Hindu family. The Official Receiver sold the properties in dispute and some other properties to the respondents who were defendants 1 to 5 an the suit. The sale was in 1926. It was obstructed by certain persons including a son-in-law, 3rd obstructor, who filed a petition under Section 68, Provincial Insolvency Act. This was dismissed and the appeal against it also to the High Court in C.M.A. 108 of 1927 was dismissed on 4th March 1931. There had been a sale of the house by the insolvents in favour of a son-in-law and afterwards a resale of the property in favour of the third obstructor, the nephew and son-in-law of the insolvents. The Official Receiver applied to the Court to have the sale set aside and this was done by the District Judge which was confirmed in appeal by the High Court reported in Venkataratnam v. Official Receiver, Godavari District AIR 1924 Mad 858. As there was obstruction to delivery both the Official Receiver and the vendees moved the Court to have the obstruction removed and by an order of Court on 17th February 1928 this was done. The plaintiff, a son of one of the insolvents who apparently raised no objections at that time, subsequently filed this O.S. No. 253 of 1928 under Section 9, Specific Relief Act.

2. The question at issue really is whether the order on the obstruction petition directing removal of the obstruction was a decree or not. For the petitioner Narasimhayya v. Veeraraghavalu AIR 1918 Mad 702 is relied on. But the decision of that case is not really applicable because at that time Section 4, Provincial Insolvency Act, was not in force. This has been pointed out in Ramaswami Chettiar v. Ramaswami Iyengar AIR 1922 Mad 147 which is entirely in respondents' favour. It was held in that case that under Sections 4, 5 and 56, Provincial Insolvency Act, 5 of 1920, the Court of insolvency can inquire into the disputed title and order delivery of the insolvent's property to a purchaser thereof from the Official Receiver by removing the obstruction of a third party. This was also the case of a father and sons. But the petitioner relies on a later case, Venkata Raman v. Chokkier AIR 1928 Mad 531 and he argues that the sons are in a better position than a third party claiming to hold under the insolvent in this matter. Venkata Raman v. Chokkier AIR 1928 Mad 531 professes to distinguish Ramaswami Chettiar v. Ramaswami Iyengar AIR 1922 Mad 147 on the ground that in that case the purchase was benami, but if Ramaswami Chettiar v. Ramaswami Iyengar AIR 1922 Mad 147 is studied, it will be seen that though the insolvent's son raised the plea that the purchase was benami that was not the plea on which the case was decided and it proceeded entirely on the position of an undivided son. Venkata Raman v. Chokkier AIR 1928 Mad 531 does appear to reverse Ramaswami Chettiar v. Ramaswami Iyengar AIR 1922 Mad 147 though it does not profess to do so.

3. It has been argued for the counter-petitioner before me that the two cases, Official Receiver of South Arcot v. Perumal Pillai AIR 1924 Mad 387 and Chittammal v. Ponnusami Naicker AIR 1926 Mad 363, referred to in Venkata Raman v. Chokkier AIR 1928 Mad 531 as placing the position of the sons on a different footing from that of the father do not really do so. It is not for me sitting as a single Judge to canvass that point. In Official Receiver of South Arcot v. Perumal Pillai AIR 1924 Mad 387 it was admitted that the insolvents had no present right to joint possession of the properties with the persons obstructed. In Chittammal v. Ponnusami Naicker AIR 1926 Mad 363 there had been a previous division of the property. Several cases as to what is meant by 'dispossession in due course of law' have been quoted to me, but the position of the Official (Receiver with regard to an insolvent father and his sons is so peculiar and difficult that these cases are not of very much assistance. Rudrappa v. Narasingarao (1905) 29 Bom. 213 quoted for the petitioners is a case of a landlord dispossessing tenants who held over. It was held to be not in the usual process of law. On the other hand Kamini Sundari Dasaya v. Saheb Sheikh (1910) 5 IC 793 is a case where the tenants were dispossessed in execution of a decree against their landlord and it was held that they were not dispossessed otherwise than in due course of law. Roshanulla v. Nazir Mahmud (1913) 18 IC 727 is a very brief judgment which gives no reasons and it does not refer to Kamini Sundari Dasaya v. Saheb Shiek (1910) 5 IC 793.

4. After the decision in Ramaswami Chettiar v. Ramaswami Iyengar AIR 1922 Mad 147 and until Venkata Raman v. Chokkier AIR 1928 Mad 531 it was good law here, and the Court was entitled to remove obstruction by the sons of insolvents. There was some doubt whether the vendees or only the receiver could make the application; so in the present case, to make sure, both applied to remove the obstruction and to give possession. That decision was in force when the vendees and the Official Receiver applied and the order of the Court was passed on. 17th February 1928. The decision in Venkata Raman v. Chokkier AIR 1928 Mad 531 now relied upon, was given on 5th December 1927. It was, I understand, first reported only in A.I.R. 1928 Mad. It was not therefore reported at the time the Court made the order. As I said before, the legal position of an Official Receiver in regard to the joint sons of the insolvent's father is an extremely difficult problem and the history of this case shows that every conceivable obstacle has been put in the way of realising the insolvent's assets. If the decision in Venkata Raman v. Chokkier AIR 1928 Mad 531 is to be relied on, it appears to me that Ramaswami Chettiar v. Ramaswami Iyengar AIR 1922 Mad 147 has been entirely reversed although the learned Judges appear to think that Ramaswami Chettiar v. Ramaswami Iyengar may be distinguished later. The question is whether in a case of this sort should I interfere in revision petition, on a difficult and rather obscure question of law when the petitioner had undoubtedly other remedies such as appeal to the insolvency Court, under Sections 68 and 75, Provincial Insolvency Act, or an application under Order 21, Rules 97 to 101, Civil P.C.? The plaintiff stood by and then proceeded to attack the decree collaterally by the present suit. I do not think, even if the view of the learned District Munsif is wrong that this is a case in which I should interfere in revision. The revision petition therefore fails and is dismissed with costs.


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