Skip to content


Kasthuri Chetty and anr. Vs. Chinnaswami Pillai (Dead) and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in95Ind.Cas.262
AppellantKasthuri Chetty and anr.;chinnaswami Pillai (Dead) and ors.
RespondentChinnaswami Pillai (Dead) and ors.;alaga Pillai and ors.
Cases ReferredVide Karuppan Ambalagaran v. Muhammad Spkuth Levvai
Excerpt:
.....borrower whose mortgage has invoked section 69 of the transfer of property act, is to file a civil suit and in such suit the court has power to grant injunction and to impose condition for the grant thereof--section 17; [a.p. shah c.j., f.m. ibrahim kalifulla & v. ramasubramanian, jj] proceedings under section 17 power of the tribunal to pass any interim order held, once the possession of the secured asset is taken, there would be no occasion for the tribunal to order redelivery of possession till final determination of the issue. in other words, it is only when the tribunal comes to the conclusion that any of the measures, referred to in section 13 (4) taken by the secured creditor are not in accordance with the provisions of the act and the rules made thereunder, then only the..........a purchaser in fraud of creditors who acts without bona fides vide karuppan ambalagaran v. muhammad spkuth levvai (1).3. even assuming that some consideration passed for the sale under ex. f to plaintiff which the district munsif found against, the subordinate judge has not clearly found to be established. the plaintiff has no right to be paid what his vendor paid under a speculative and fraudulent purchase.4. the appeal is allowed and the decree of the lower appellate court is reversed and the decree of the district munsif dismissing the suit is restored with costs in this court.in s. a. no. 1489 of 1923.5. on the findings of the courts below, and in view of the result of the connected second appeal no 443 of 1923, this second appeal is dismissed with costs.
Judgment:

In S. A. No. 443 of 1923

1. The plaintiff's suit was dismissed in the Court of first instance on the District Munsif's finding that the sale-deeds, Exs. D, E and F were brought about to defraud 1st defendant's creditor, viz., 4th defendant. The Subordinate Judge also found as a conclusion of fact that these transactions were not, (sic)a fide.

2. He, however, stave the plaintiff, who was a purchaser under Ex. F, a charge for Rs. 450 on the suit properties, on the ground that his vendor Maruthanayagam Pillai had paid Rs 400 in discharging a prior mortgage (Ex. C) on 1st defendnt's house in Dindigul. The learned Judge did hot rely on the doctrine of subrogation, but he gave this relief out of equitable considerations. In so doing he overlooked the law that there can be no equity in favour of a purchaser in fraud of creditors who acts without bona fides Vide Karuppan Ambalagaran v. Muhammad Spkuth Levvai (1).

3. Even assuming that some consideration passed for the sale under Ex. F to plaintiff which the District Munsif found against, the Subordinate Judge has not clearly found to be established. The plaintiff has no right to be paid what his vendor paid under a speculative and fraudulent purchase.

4. The appeal is allowed and the decree of the lower Appellate Court is reversed and the decree of the District Munsif dismissing the suit is restored with costs in this Court.

In S. A. No. 1489 of 1923.

5. On the findings of the Courts below, and in view of the result of the connected Second Appeal No 443 of 1923, this second appeal is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //