SANKARAN NAIR Vs. GOURI AMMA

JUDGEMENT

(1.) This Appeal arises from a suit instituted by the appellant at a time when he was an undischarged insolvent. He was adjudicated an insolvent on 20-5-1105. The suit was instituted on 20-3-1952. The appellant alleged in the plaint that his brother one Narayanan Nair had acquired a mortgage interest in a property in the name of his sister, who is the 1st defendant in the case. Narayanan Nair continued to be in possession of that property and started constructing a building, but died before the building was completed. It is the appellant's case that he spent money and completed the building in 1121-1122 M. E. and the first defendant agreed that till the amount spent by the appellant is returned to him he may continue in possession of the building and also collect the rent from the building if it was let out. It is alleged that at the time of the institution of the suit the second defendant was the lessee. Before that some other persons were the tenants and according to the appellant, he had collected the rent from them. The relief claimed in the plaint is a declaration that the plaintiff is entitled to a charge on the plaint property, which is the building, for the amounts expended by him for constructing it and a further declaration that he is entitled to continue in possession of the building and collect the rent of the building. He has also claimed the arrears of the rent from the 2nd defendant. I do not think that the other reliefs for injunction etc, prayed for in the plaint are material for the disposal of this appeal. The 1st defendant raised an objection that the suit is not maintainable because the plaintiff was at the time of the institution of the suit an undischarged insolvent. This contention has been accepted by the court below in disposing of a petition that was moved before the court by the first defendant on 28-6-1957. There was an earlier petition for raising an additional issue. This was allowed and an issue was framed as issue 12 which reads "Is the plaintiff competent to file the suit Is the suit maintainable - The petition dated 28-6-1957 referred to above prayed that the suit may be dismissed. The court below dealt with the additional issue and found that issue in favour of the 1st defendant and proceeded to dismiss the suit apparently by the order passed on that petition. That is the order which is produced along with this appeal memorandum. On the face of it, it does not purport to be a judgment, though a decree has been drawn up as if it is a judgment in the case.

(2.) Appellant's counsel raised the preliminary objection before me that the disposal of the suit in the manner mentioned above is not warranted by the specific provisions of the Code of Civil Procedure. He said that the decree in this case stands unsupported by a judgment. This contention is not without substance, though perhaps a little technical. In the view that I am taking in this case, I do not think it necessary to deal with this preliminary objection.

(3.) The main question to be considered is whether the suit instituted, as it was, by an undischarged insolvent is maintainable. The judicial decisions on this question are not uniform. The Travancore High Court, as far as the decisions cited before me indicate, has taken the view that such a suit is maintainable Thommi Avira v. Thommi Chacko XV TLJ 373 and Usman Pillai v. Official Receiver, XXIII TLJ 879. No case of that Court where a different view had been taken has been brought to my notice. But the Madras High Court in Venkatasubba Rao v. Venkateswaralu ( AIR 1937 Mad. 165 ) and the Nagpur High Court in Nathmal v. Kisan (AIR 1953 Nagpur 227) have taken a different view and there are two decision's one of the Allahabad High Court in Sakhamat Ali v. Radha Mohan (AIR 1919 All. 284) and another of the Bombay High Court in Sidram v. Mahaliya (AIR 1941 Bombay 415) which have also adopted the principle of the decisions in the Madras and the Nagpur cases. It has been held by the Allahabad and Bombay courts that an appeal by the insolvent is not maintainable.