Court : Chennai
Reported in : AIR1927Mad1090
1. This is an appeal against the order of the District Judge of Godaveri setting aside the sale of two native schooners in favour of the appellant by an insolvent, V. K. Subramania Pillai, a native of Ceylon. The insolvent was carrying on ship-building business in the Godaveri District from 1917 to 1920 and in the course of this business he was purchasing timber and iron goods from merchants in the District and became indebted to them. The appellant is one of such merchants. He was supplying him with iron goods and money. The last promissory note between the appellant and the insolvent Ex. 19, dated 1st October 19, purports to be for Rs. 30,000. Along with it an agreement, Ex. 21 was said to have been executed on the same day giving his ships as security for the money. The ships were sold by transfer of registry before the port officer on 19th January 20, vide Exs. 15 16, and 17. Within a month after this, it is said that the insolvent left the District. Suits were filed against him an...
Tag this Judgment!Court : Chennai
Reported in : AIR1927Mad1144a; 101Ind.Cas.568
1. This is not a case of fraudulent preference, for the mortgage of the appellant is beyond three months from the date of the adjudication. If it appears that the object of the mortgage is to defeat, defraud or delay creditors, it is voidable under Section 53. In one sense, when one creditor obtains a preference for himself by taking a mortgage or sale, it may operate to the prejudice of other creditors, but such transactions are perfectly valid unless they are within three months from the adjudication. The primary object of the transaction is to protect himself and not to defeat other creditors and a creditor is entitled to do it: see Musahar Sahu v. Lala Hakim Lal A. I. R. 1915 P. C. 115 and Natha v. Magan Chand [1903] 27 Bom. 322.2. The appeal is allowed with costs throughout....
Tag this Judgment!Court : Chennai
Reported in : AIR1927Mad1154
Madhavan Nair, J.1. The father of the plaintiff, and defendant 4, the father of defendants 1 and 2, and another, started a partnership business. On the death of the plaintiff's father, his sons became members of the partnership, and defendant 3 was also taken in as a partner. Later on, the father of defendants 1 and 2 having died, they also became members of the partnership. The plaintiff and defendant 4 were entitled to one-twelfth share in the partnership business. Unpleasantness having arisen between the parties, the plaintiff instituted a suit for the dissolution of the partnership, settlement of accounts and recovery of his brother's one-twelth share and for other allied reliefs. The defendants, including defendant 4, disputed the correctness of some of the statements made in the plaint. Defendant 4 also prayed that the amount due to him might be paid to him. The case was, by an order of Court, referred to an arbitration of three persons. Defendant 4 did not join in the reference ...
Tag this Judgment!Court : Chennai
Reported in : 100Ind.Cas.709
ORDERWallace, J.1. It is the obvious duty of the executive to uphold the civil rights declared by its own Civil Courts. Any omission to do that is a confession of failure in duty. No doubt, the interests of the public peace are paramount, but, where as in this case, the District Magistrate must be aware that there will probably be a disturbance of the petitioner's civil rights at recurring seasons every year, it is his duty to exhaust every measure at his disposal to uphold declared civil rights before he abandons the attempt, and he should resort to Section 144 of the Code of Criminal Procedure only if there is no time or opportunity for any other course. I am not satisfied in this case, that all such other measures were used. The District Magistrate, for example, by taking thought in-time--it is part of his duty to take thought in time--could have those who threaten to interfere with the petitioner's civil rights bound over to keep the peace, or might have got down sufficient force t...
Tag this Judgment!Court : Chennai
Reported in : 103Ind.Cas.911
1. The parties seem to admit that there was a partition in 1895. Apart from the admission, it is doubtful if Ex. A amounts to a complete partition between the father and the sons. But, assuming there was a partition between all the three, the question arises. What is the position of the house after 1895? There are three alternatives. (1) It continued to be ancestral property in the hands of the father. (2) It was allotted exclusively to the father and thereafter was like his self-acquired property. (3) All the three owned undivided third shares in the property. A fourth alternative that, from the beginning, it was self-acquired property need not be discussed for its effect is like the second alternative and appellant's evidence is rather against it. The respondent contends for the third alternative and argues that his father and himself owned one third share of the house since 1895.2. The fact that the sons of Vairavan occupied separate rooms cannot help us in the decision of the case ...
Tag this Judgment!Court : Chennai
Reported in : 101Ind.Cas.143
Devadoss, J.1. The plaintiff's suit is for setting aside the decree in O.S. No. 606 of 1915 on the ground that his guardian, was grossly negligent in not putting forward proper defence to that suit. The Subordinate Judge has granted a decree in plaintiff's favour and the 6th. defendant has preferred this second appeal. It is strongly contended by Mr. Rama Rao for the appellant that P.W. No. 11, the vendor of the plaintiff's property, was estopped from contending that the decree, Ex. D, is not binding upon him, and, therefore, the plaintiff who derives title from him cannot set up a plea which is not open to P.W. No. 11 and he is also bound by anything which would bind P.W. No. 11. If as Mr. Rama Rao contends that the 1st defendant was misled by any misrepresentation made by P.W. No. 11 at the time when Ex. D was passed and if the 1st defendant believed that representation and on that representation she got a charge on the Thuruvolu properties, no doubt P.W. No. 11 would be estopped fro...
Tag this Judgment!Court : Chennai
Reported in : 101Ind.Cas.752
Devadoss, J.1. The plaintiff's suit is far maintenance. The District Munsif gave her Rs. 45 a year and the Subordinate Judge has reduced the amount to Rs. 25 on the ground that she had entered into an agreement with the defendants. Father for maintenance at the rate of Rs. 25 which is evidenced by Ex. I. Mr. T.M. Krishnaswami Iyer for the respondent contends that Ex. I bars the present suit. Exhibit I is a maintenance arrangement made by Rama Naicker, father of the defendant, on 17th July, 1910, undertaking to pay the plaintiff Rs. 25 a year. [A] There is nothing in Ex. I to show that the amount was fixed for all time. In the absence of any undertaking to get Rs. 25 for all time the Court is not prevented from giving the plaintiff a higher rate of maintenance than that mentioned in Ex. I when the circumstances existing at the time of Ex. I have since altered. [A] It is well-known that since 1910 prices of food stuffs have gone up considerably and apart from that there is nothing to sho...
Tag this Judgment!Court : Chennai
Reported in : AIR1927Mad526; (1927)52MLJ352
1. The Official Assignee of Madras who is the appellant in this case took out a garnishee application in the matter of the insolvency of M.R.V. S.M. Doraiswami Chetty and Co., against the respondent firm for an order declaring that a sum of Rs., 10,000 which belonged to the insolvents came into the hands of the respondent firm was a payment made by the insolvents when they were in insolvent circumstances and that the same was a fraudulent preference and asking for consequent reliefs.2. Mr. Justice Beasley by whom the application was heard dismissed it with costs holding that what was proved by the Official Assignee at the hearing of the application could not possibly be held to constitute any payment by the insolvents by way of undue or fraudulent preference. The learned Judge also Incidentally refused the application of the Official Assignee for amendment of the application or even the withdrawal of the application with liberty to make a fresh application. In brief the conclusion arri...
Tag this Judgment!Court : Chennai
Reported in : (1927)53MLJ557
Odgers, J.1. This is now in effect a suit for possession by the plaintiff and the contest lay between the widow of Thotapally Sarvabhotla Krishniah(junior), the adopted son of Thotapally Sarvabhotla Krishniah (senior) and the widow of the latter who adopted plaintiff's husband Krishnayya on 21st May, 1908, in pursuance of a power given to her by her husband in his will Ex. VIII. The widow of Thotapally Sarvabhotla Krishniah (senior) is now represented by her nephew. The adopted son Thotapally Sarvabhotla Krishnayya (junior) died and the plaintiff is his heir. The learned vakil for the appellant mentioned but abandoned argument based on a verbal agreement prior to the adoption and prior to Ex. I. So the only question for us is the proper construction to be placed on Ex. I which is an agreement dated 21st May, 1908, the date of Thotapally Sarvabhotla Krishniah's (junior's) adoption entered into by the 1st defendant (the adoptive mother) and the natural mother and brother of the adopted b...
Tag this Judgment!Court : Chennai
Reported in : 105Ind.Cas.775
Odgers, J.1. This is now in effect a suit for possession by the plaintiff and the contest lay between the widow of Thotapally Sarvabhotla Krishnayya (junior) the adopted Bon of Thothapally Sarvabhotla Krishnayya (senior) and the widow of the latter who adopted plaintiff's husband Krishnayya on 21st May, 1908, in pursuance of a power given to her by her husband in his Will Ex. VIII. The widow of Thotapally Sarvabhotla Krishnayya (senior) is now represented by her nephew. The adopted son Thotapally Sarvabhotla Krishnayya (junior) died and the plaintiff is his heir. The learned Vakil for the appellant mentioned but abandoned an argument based on a verbal agreement prior to the adoption and prior to Ex. I. 80 the only question for us is the proper construction to be placed on Ex. I which is an agreement dated 21st May, 1908, (the date of Thotapally Sarvabhotla Krishnayya junior's adoption) entered into by the 1st defendant (the adoptive mother) and the natural mother and brother of the ado...
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