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Gudivada Rama Rao Vs. Pottiswami and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1938Mad299
AppellantGudivada Rama Rao
RespondentPottiswami and ors.
Cases ReferredFateh Chand v. Hiralal A.I.R.
Excerpt:
.....the insolvent's property included not merely his own share but also the power to sell his son's share in respect of his antecedent 1 debts not tainted by illegality or immorality, it would have been contrary to his duty for him to have sold only the father's half share. 3. apart from this question of probability, we have the evidence of the official receiver as well as that of the purchaser to show that it was the entire property that was intended to be sold and that was actually sold. both of them are respectable persons and their evidence is perfectly in accord with probabilities. 4. on the whole therefore we are unable to see any good reason for interfering with the finding of the learned subordinate judge on this point......house along with other property was purchased by the then secretary of the institution from the official receiver of guntur district in whom the estate in the insolvent in i.p. no. 42 of 1922 on the file of the district court of guntur had been vested. defendant 2 in this suit, who is the appellant in this appeal, was a minor son of the insolvent at the time, and iii is conceded on his behalf that at the time of the sale by the official receiver the latter had the power to sell the son's share as such power was vested in the insolvent father. the real question for decision in the appeal is whether this power to sell the son's share was actually exercised by the official receiver or whether what was sold by the official receiver was only the insolvent father's own half share in the.....
Judgment:

Pandrang Row, J.

1. This is an appeal from the decree of the Principal Subordinate Judge of Bezwada in O.S. No. 61 of 1927, a suit for recovery of possession of a certain house in Bezwada together with damages for use and occupation, the suit being brought by the plaintiff on behalf of a certain charitable institution for which this house along with other property was purchased by the then Secretary of the institution from the Official Receiver of Guntur District in whom the estate in the insolvent in I.P. No. 42 of 1922 on the file of the District Court of Guntur had been vested. Defendant 2 in this suit, who is the appellant in this appeal, was a minor son of the insolvent at the time, and iii is conceded on his behalf that at the time of the sale by the Official Receiver the latter had the power to sell the son's share as such power was vested in the insolvent father. The real question for decision in the appeal is whether this power to sell the son's share was actually exercised by the Official Receiver or whether what was sold by the Official Receiver was only the insolvent father's own half share in the house. This point was answered in favour of the plaintiff by the Court below and the appellant contends that this finding is wrong.

2. There is no doubt a difference between the existence of a power and its exercise, and, no doubt, the mere existence of the power will not be sufficient to show that in any particular case it was exercised. In this case however, the document itself executed by the Official Receiver shows that what he intended to sell was the entire property and not merely the insolvent's own half share. There is no reference to the insolvent's half share in the deed nor is there any reference to the son's share or even to the existence of a son. The schedule annexed to the sale deed Ex-A clearly describes the property as having certain boundaries and so on. In the body of the document, it is said that what is sold is the interest or right of the Insolvent in the property described in the schedule, and there is the usual clause found in sale deeds executed by Official Receivers to the effect that the purchaser must take the risk of any defect in the title. It is well-known that the Receiver is bound by his duty to sell the entire property of the insolvent for the benefit of the creditors, and where, as in this case, the Insolvent's property included not merely his own share but also the power to sell his son's share in respect of his antecedent 1 debts not tainted by illegality or immorality, it would have been contrary to his duty for him to have sold only the father's half share. On the other hand, it is most unlikely that the purchaser, who was making the purchase on behalf of a charity, would have purchased a half share in the properties.

3. Apart from this question of probability, we have the evidence of the Official Receiver as well as that of the purchaser to show that it was the entire property that was intended to be sold and that was actually sold. Their evidence was accepted by the Court below, and we see no reason to take a different view of their evidence. Both of them are respectable persons and their evidence is perfectly in accord with probabilities. Their evidence is further corroborated by the sale notice issued by the Receiver which makes it clear that the entire property was to be sold. There is nothing in our opinion in the passages in Mayne's Hindu Law and Usage which were quoted before us from Section 321, Edn. 9 which really helps the appellant in this case. Fateh Chand v. Hiralal A.I.R. 1935 Nag 193 also does not really assist the appellant. In that very case it is stated that it is open to the purchaser to give evidence as to what he thought he was purchasing, and that such evidence could be directed to show that, the consideration represented the value of the whole property and not merely the father's share. Even from that point of view, it is clear that in the case before us what was sold was the entire property and not merely the father's share.

4. On the whole therefore we are unable to see any good reason for interfering with the finding of the learned Subordinate Judge on this point. No other point has been argued before us in this appeal which is accordingly dismissed with costs of respondent 1 (plaintiff). The court fee payable on the memorandum of appeal must be paid by the appellant to the Government.


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