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Sivanandam Vs. Ramabadra Reddy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1974)2MLJ212
AppellantSivanandam
RespondentRamabadra Reddy and ors.
Excerpt:
- .....and oral evidence and upon a review of the evidence, came to the conclusion that govindaraju nadar's family including his son, the petitioner, was in possession of agricultural lands on the three relevant dates, viz...: (1) the date when the debt came into existence; (2) 1st october, 1937; and (3) the date on which the petition to scale down the decree debt was filed. after recording these findings be proceeded to indicate the mode in which the debt should be scaled down and directed the parties to file memoranda of calculation on the lines suggested by the court. no memo was filed. against this order annamalai. assignee decree holder preferred an appeal to the district judge of north arcot. the learned district judge after holding that an agriculturist as defined in madras act iv.....
Judgment:

S. Maharajan, J.

1. This appeal arises under the following circumstances: On the 12th September, 1935 one Ramabadra Reddiar obtained a decree against Govindaraju Nadar (D-1) Doraiswami Nadar (D-2) and minor Vasudeva Nadar (D-3) whereby defendants 1 and 2 were directed to pay personally, and all the defendants to pay, out of the family properties, a sum of Rs. 2,856 with interest on Rs. 2,100 at 12% per annum from 16th April, 1934 from the date of the plaint upto the date of the decree. The decree further ordered the defendants to pay a sum of Rs. 425 as costs to the plaintiff with interest 0.1 the aggregate sum at the rate of 6% per annum from the date of the decree upto the date of realisation. Subsequently Ramabadra Reddiar transferred part of the decree in favour of ore Annamalai Mudaliar. Sivanandam who is one of the sons of Govindaraju Nadar (D-1) and who was not a party to the suit in O. S. No. 515 of 1934, filed in March, 1961 a petition under Section 19 of Madras Act IV of 1938 in LA. No. 599 of 1961 for scaling down the debt due by his father under the decree. Ramabadra Reddiar was impleaded as the first respondent and Annamalai Mudaliar as the second respondent in the interlocutory application. It appears that in I. P. No. 11 of 1935 Govindaraju Nadar and Doraiswami Nadar, defendants 1 and 2 in O.S. No. 515 of 1934 were adjudged as insolvents. Consequently, the Official Receiver, North Arcot, was impleaded as the third respondent in the interlocutory application. In this application, Sivanandam, the appellant before me, contended that as a member of the agricultural family of Ramabadra Reddiar he was entitled to file this application for scaling down and that no amount would be due under the decree if it were properly scaled down. Ramabadra Reddiar in his counter contended inter alia that the petitioner was not competent to apply for scaling down at all, that he was not an Agriculturist entitled to apply and that he had no saleable interest in the land, inasmuch as the entire family property had vested in the Official Receiver in insolvency. He further pointed out in his counter that section 19 of the Tamil Nadu Agriculturists Relief Act had no application and that inasmuch as Govindaraju Nadar and his brother had been adjudged as insolvents in I. P. No. 11 of 1935 on the file of the Sub-Court, Vellore, the proper provision applicable would be Section 21 of the Act and that this application ought to be made either by the insolvent-debtor or the Official Receiver. The second respondent, who was the assignee-decree holder, raised a number of contentions, some of which were a repetition of those raised by the first respondent. The Official Receiver, who was the third respondent in the interlocutory application, filed a memo, to the effect that he had no counter to file.

2. The learned District Munsif, Ranipet, after recording documentary and oral evidence and upon a review of the evidence, came to the conclusion that Govindaraju Nadar's family including his son, the petitioner, was in possession of agricultural lands on the three relevant dates, viz...: (1) the date when the debt came into existence; (2) 1st October, 1937; and (3) the date on which the petition to scale down the decree debt was filed. After recording these findings be proceeded to indicate the mode in which the debt should be scaled down and directed the parties to file memoranda of calculation on the lines suggested by the Court. No memo was filed. Against this order Annamalai. assignee decree holder preferred an appeal to the District Judge of North Arcot. The learned District Judge after holding that an agriculturist as defined in Madras Act IV of 1938 is a 'complicated person' introduced a further complication in the proceedings between the parties by holding that in as much as all the properties of the family of the judgment-debtors had vested in the Official Receiver long prior to the institution of I. A. No. 599 of 1961, the son of the insolvent, who was the applicant, could have no saleable interest in the agricultural property, such as to qualify him for filing an application under the Act. In this view, the first appellate Court set aside the District Munsif's order directing the scaling down of the decree debt and dismissed the petition for scaling down with costs throughout. It is against this order that Sivanandam the applicant, has preferred this appeal.

3. It is not disputed that Govindaraju Nadar, the father of Sivanandam, has been adjudicated as an insolvent. From the fact that the Official Receiver appeared in Court and filed a memo, saying that he had no objection to the scaling down, it may be presumed that insolvency proceedings are still in progress and that there has been no annulment of adjudication. It is not known if at the time of adjudication the power of Govindaraju Nadar to sell the joint family property in discharge of the joint family debts also vested in the Official Receiver along with Govindaraju Nadar's share in the joint family property. Even if it had vested, it is not known whether the Official Receiver had exercised that power. But in the view that I take of the competency of the appellant, it is unnecessary to go into the question whether the appellant had any saleable interest in the agricultural lands at all at the time he filed his application for scaling down. As pointed out in the counter-affidavit of the first respondent in the trial Court the proper, section applicable is not Section 19 but Section 21 of the Act. Section 21 of the Act is in the following terms:

21 (1) Nothing contained in this Act shall apply to the debts payable by any person who has been adjudicated an insolvent, if prior to the coming into force of this Act, a dividend has been declared out of his assets.

(2) If a dividend has not been so declared, the Court shall, on application made by the insolvent debtor, the Official Assignee or Official Receiver in whom the property of such debtor has vested, or any other person interested, apply the provisions of this Act to the debts payable by the insolvent debtor if he would have been an agriculturist within the meaning of this Act but for his adjudication in insolvency.

Counsel are unable to say if a dividend had been declared out of the assets even prior to the institution of this petition. This is a matter which requires investigation. If a dividend has not been been declared, it is clear that the Court shall scale down the debt on an application made by anyone of the following 3 categories of persons: (1) insolvent debtor, (2) Official Assignee or Official receiver; and (3) any other person interested. It is clear from the language of this section that where there has been an adjudication of the judgment debtor as an insolvent, it is not necessary that the person who applies for scaling down the debts should have a saleable interest in agricultural lands. The insolvent debtor who is enabled under that section to apply, cannot be said to have saleable interest in the lands after adjudication and after the entire estate has vested in the Official Receiver, nor ' any other person interested mentioned in clause (2) of the section need be a person having a saleable interest in the agricultural land. All that the section requires is that he should be a person interested in getting the debt scaled down. The son of the judgment-debtor, who made the application, is admittedly a member of the family of the insolvent. He has not been adjudicated as an in-solvent either and he is certainly a person interested in getting the decretal debt of his father scaled down under Madras Act IV of 1938. The learned District Judge, therefore, fell into an error in thinking that the petitioner was not competent to file an application because in his view he was not an agriculturist within the meaning of the Act and he had no. saleable interest in the agricultural lands. In the absence of relevant material, I am unable to agree even with this view of the learned District Judge, that the petitioner had no saleable interest in the agricultural lands. Even assuming that he did not have such an interest, he would be certainly a person interested, within the meaning of Section 21 clause (2) of the Act.

4. I, therefore, reverse the finding of the District Judge and remand the matter to the first appellate Court with a direction to dispose of the appeal on the merits on the basis that the petitioner in I. A. No. 599 of 1961 is competent as an interested person to maintain that petition. The costs of this appeal will abide the result of C. M. A. No. 10 of 1971.


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