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Muthukumara Chettiar Vs. Alagappa Chettiar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1918Mad537; 42Ind.Cas.554
AppellantMuthukumara Chettiar
RespondentAlagappa Chettiar and ors.
Cases ReferredManmohandas Ramji v. Macleod
Excerpt:
civil procedure code i act v of 1908), order xxi, rule 63, order xxxviii, rule 8 - property attached before judgment--sit for declaration of title, maintainability of--transfer of property act (iv of 1882), section 53--transfer before attachment, bona fide--creditor, whether can avoid transfer--hindu lard--joint family--alienation by manager describing himself as guardian, validity of. - .....of civil procedure does not expressly provide a right of suit in the case of claims preferred to property attached before judgment.3. we think that the wording of order xxi, rule 63, is sufficiently wide to include claims to property attached before judgment as well as claims to property attached in execution of decrees. moreover, order xxxviii, rule 8, provides that claims to property attached shall be investigated in the manner provided for the investigation of claims to property attached in execution of decrees for the payment of money.4. the next argument is that the transfer by debtors of the whole of their property for distribution among their creditor was an act of insolvency and, therefore, void. in support of this proposition appellant's vakil quotes manmohandas ramji v......
Judgment:

1. In this case the appellant attached property before judgment and the respondents, who hold the property of the judgment-debtors under deeds of trust for distribution to their creditors, brought this suit to establish their right to the property.

2. It is first argued that the suit is not maintainable, as Order XXXVIII of the Code of Civil Procedure does not expressly provide a right of suit in the case of claims preferred to property attached before judgment.

3. We think that the wording of Order XXI, Rule 63, is sufficiently wide to include claims to property attached before judgment as well as claims to property attached in execution of decrees. Moreover, Order XXXVIII, Rule 8, provides that claims to property attached shall be investigated in the manner provided for the investigation of claims to property attached in execution of decrees for the payment of money.

4. The next argument is that the transfer by debtors of the whole of their property for distribution among their creditor was an act of insolvency and, therefore, void. In support of this proposition appellant's Vakil quotes Manmohandas Ramji v. Macleod 4 Bom. L. R. 617. That decision only declared that assignments in favour of trustees by persons who were subsequently adjudicated insolvents were void as against the Official Assignee. Appellant has shown no authority under which he can avoid a transfer prior in date to his attachment without its being shown to have been made with an intent to defeat or delay creditors of the transferor and thus voidable under Section 53 of the Transfer of Property Act; and in this case the finding on the question of fact by the Appellate Court is that the transaction was perfectly bona fide.

5. The last point taken was that the trust deeds (Exhibits E and E-1) did not pass the property of the minor sons of the transferor's deceased brother, as Somasundaram, who was the manager of the joint family and executed Exhibit E-1, described himself as the guardian of the minors whereas their mother was their lawful guardian. If Somasundaram was in fact manager of the family, we do not think his misdescription of himself as guardian will affect the title which he purported to convey on behalf of the family and the Subordinate Judge has stated that the trust deed was executed for their benefit. As for Exhibit E-1, it may have been a superfluous document executed ex abundante cautela but the operation of Exhibit E will not be diminished thereby.

6. The second appeal fails and is dismissed with costs.


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