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In Re: M. Vijarangam Naidu an Insolvent - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in114Ind.Cas.836
AppellantIn Re: M. Vijarangam Naidu an Insolvent
Cases ReferredSornammal v. Official Assignee of Madras
Excerpt:
presidency towns insolvency act (iii of 1909), sections 7, 36 - discovery proceedings--examination of wife of insolvent in respect of properties standing in her name but alleged to belong to insolvent--likelihood of litigation between insolvent's wife and official assignee--examination of wife as witness, whether permissible. - .....rakshit 40 ind. cas. 94 : 44 c. 374 that an order for examination under section 36 should not be refused because litigation may ultimately ensue between the official assignee and the person sought to be examined.8. i do not think having regard to the provisions of sections 7 and 36, i can hold that because a person claims certain properties as his, all examination of him should cease. i may, however, state that the person examined is entitled to all the privileges conferred on a witness by the evidence act and he cannot be compelled to answer any question which the evidence act allows him not to answer.9. in the present case as there is no application to declare these transactions to be benami transactions the insolvent's wife is not a party in any sense to the proceedings. she is.....
Judgment:

Kumaraswami Sastri, J.

1. This is an application to set aside the order of the Master directing the insolvent's wife to appear for examination as regards the properties of the insolvent.

2. Sections 7 and 36 of the Presidency Towns Insolvency Act give the Court power to examine any person touching the property of the insolvent. In this case it is said that the properties about which the wife of the insolvent is sought to be examined are properties standing in her name and that she claims the properties as her own. It is also stated that the case of the Official Assignee is that the properties are benami in her name but really belong to the insolvent.

3. Objection was taken before the Master but he was of opinion that the lady should appear for examination.

4. I do not think there is anything in the sections or in the decisions cited by Mr. Narasimha Iyer (which I shall refer to) which prevents the Official Assignee from examining this lady touching the property of the insolvent. The mere fact that she says that the properties belong to her is no ground for refusing to subpoena her for examination.

5. Sornammal v. Official Assignee of Madras 24 Ind. Cas. 239 : 27 M.L.J. 66 which is referred to by Mr. Narasimha Iyer simply decides that Section 36 of the Presidency Towns Insolvency Act is a section relating to discovery and cannot be used for adjudicating the rights of the estate as against third parties in respect of properties which stand in their name and prima facie belong to them on the ground that they are held benami for the insolvent. It was observed there that an order can be made under Section 7. There is nothing in this decision which says that for the purpose of examination you cannot subpoena a witne Sections It is not suggested here that there was any request for an adjudication as regards the properties in which case this decision would apply.

6. The mere fact that the Court cannot adjudicate on the question later on will be no ground for refusing the examination of a witness under the above sections. It was held in Ex parte Eckersley, In re Lewtas (1883) 48 L.T. 832 that the consideration as to whether a Court of Bankruptcy would entertain subsequent proceedings arising out of the examination would not affect the jurisdiction of the Court to order examination for the purpose of an investigation as to the insolvent's property.

7. It was held in In re Haripada Rakshit 40 Ind. Cas. 94 : 44 C. 374 that an order for examination under Section 36 should not be refused because litigation may ultimately ensue between the Official Assignee and the person sought to be examined.

8. I do not think having regard to the provisions of Sections 7 and 36, I can hold that because a person claims certain properties as his, all examination of him should cease. I may, however, state that the person examined is entitled to all the privileges conferred on a witness by the Evidence Act and he cannot be compelled to answer any question which the Evidence Act allows him not to answer.

9. In the present case as there is no application to declare these transactions to be benami transactions the insolvent's wife is not a party in any sense to the proceedings. She is merely examined under Section 36 for discovery.

10. I dismiss the application. The creditor respondent will be entitled to his costs of this application out of the estate.


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