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Kristocomul Mitter Vs. Suresh Chunder Deb - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal556
AppellantKristocomul Mitter
RespondentSuresh Chunder Deb
Cases Referred and Kerakoose v. Brooks
Excerpt:
insolvency - after-acquired property--purchaser from insolvent who had not obtained his discharge--purchaser from official assignee--rights of parties--intervention of official assignee. - .....joint family property as one of three sons, and continued in undisturbed possession; and the official assignee never intervened or made any claim so long as the property was undivided. in 1876, the plaintiff and the third brother brought a suit against the widow and second brother, asking for partition. on the 13th may 1877, a decree for partition was made and carried out, and nilcomul remained in undisturbed possession of his divided share, the official assignee making no claim. in june 1880, nilcomul sold his interest to the present defendant, who, i find, bought in good faith, without notice, and paid full value. on the 4th december 1880 six months after, the plaintiff bought the same share from the official assignee for a small sum, and with full knowledge of the purchase made.....
Judgment:

Wilson, J.

1. The facts in this case are as follows: Nilcomul Mitter, J., a brother of the plaintiff, was adjudicated an insolvent in the year 1860, but never obtained his final discharge. In 1862, by the death of his father, he became entitled to certain joint family property as one of three sons, and continued in undisturbed possession; and the Official Assignee never intervened or made any claim so long as the property was undivided. In 1876, the plaintiff and the third brother brought a suit against the widow and second brother, asking for partition. On the 13th May 1877, a decree for partition was made and carried out, and Nilcomul remained in undisturbed possession of his divided share, the Official Assignee making no claim. In June 1880, Nilcomul sold his interest to the present defendant, who, I find, bought in good faith, without notice, and paid full value. On the 4th December 1880 six months after, the plaintiff bought the same share from the Official Assignee for a small sum, and with full knowledge of the purchase made by the defendant. The plaintiff now sues for the possession of the property purchased by him from the Official Assignee, stating that the defendant had forcibly prevented him from taking possession, and alleging the insolvency of Nilcomul. Such are the facts and contentions on the plaintiff's behalf. The subject of after-acquired property as regards uncertificated bankrupts, has been considered in England, from time to time, and the result is this, that, subject to the right and claims of the Official Assignee, so long as the Official Assignee does not interfere, the uncertificated bankrupt has power to buy and sell and give discharges and do all other acts he could have done and had done before the intervention of the Official Assignee. The law is summed up in Herbert v. Sayer 5 Q.B. 965 which seems to me conveniently to sum up the decision in England on the various cases, and Kerakoose v. Brooks 8 Moore's I.A. 339 is clear authority that the Indian Act is to be construed on the same principle. The defendant acquired a good title and the plaintiff none. But even if I thought the defendant's title was not good on the above ground, it is good on another ground. Nilcomul's possession since 1862 was adverse possession against the Official Assignee. The suit must be dismissed with costs No. 2.


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