MOHAMMAD HUSSAIN SAHIB Vs. KARUTHA SYED MOHAMMAD ROWTHER

JUDGEMENT

(1.) THIS is an appeal by the plaintiffs in O. S. No. 53 of 1945 on the file of the Court of the Subordinate Judge of Coimbatore against the dismissal of the suit on the ground that the plaintiffs have no right to institute the suit. Though as many as 12 issues were framed by the learned Subordinate Judge, the decision depended on the preliminary question regarding the right of the plaintiffs to institute the suit on the ground that they had a cause of action. The learned Subordinate Judge found that the plaint did not show that the plaintiffs had an existing cause of action and therefore dismissed the suit.

(2.) THE plaintiffs are the sons and daughters of one Muhammad Ismail Sahib who died on 25-2-1943 and the present suit is brought for the recovery of possession of the properties mentioned in the plaint from defendant 1 who was an alienee of those properties as well as from other defendants who claimed to be the subsequent transferees for consideration from defendant 1. There are no less than 30 defendants to the suit and most of them contest the plaintiffs' claim to any relief. This Muhammad Ismail Sahib was at one time a man of means. On 177-1926, a sale deed was executed by him in favour of defendant 1 of some properties belonging to him for a sum of Rs. 22,000. On the very same day he executed a usufructuary mortgage deed with regard to the rest of his properties in favour of the same defendant 1 for a sum of Rs. 4000. Though the properties were situated within the registration sub-district of Erode, it so happened that those two documents were registered by the Sub-Registrar of Aravakurichi in Trichinopoly district. How the documents got registered in that district was that an item of property, over which Muhammad Is-mail Sahib had no title but admittedly situated within the jurisdiction of Aravakurichi Sub-Registrar's office, was added to the schedule of each of the documents and therefore that Sub-Registrar was clothed with jurisdiction to register those documents. It is common ground that the vendor or the mortgagor in the case had no title to those properties.

(3.) WHILE matters were in that stage, nearly a year later on 24-8-1927 a creditor of Muhammad Ismail Sahib filed I. P. No. 215 of 1927 on the file of the Sub-Court, Coimbatore, to adjudicate Muhammad Ismail Sahib an insolvent. This petition was enquired into by the insolvency Court and on 8-12-1927 Muhammad Ismail Sahib was adjudged an insolvent and whatever properties that he possessed at that time vested in the Official Receiver who took charge of the estate. Whether the properties covered by the sale deed and the mortgage deed vested in the Official Receiver or not we cannot say because there is no definite evidence as to what exactly vested in him. After this, the Official Receiver filed I. A. No. 440 of 1930 before the subordinate Judge, Coimbatore, under Sections 4 and 53, Insolvency Act to annul the sale deed executed by the insolvent in favour of defendant 1 as well as to declare that the usufructuary mortgage executed by the insolvent in favour of defendant 1 was not valid and binding on him. The vendee and the mortgagee contested this application and the matter was enquired into at some length by the learned Subordinate Judge. The first point which came up before him for consideration was whether the sale and the mortgage deeds executed by the insolvent without receiving consideration and the second point that was considered was whether the said deeds were void under the Registration law; the third point was whether the said deeds were liable to be annulled for the reason alleged by the petitioning creditor. The learned Subordinate Judge was of the opinion that the two documents were supported by consideration and were real and genuine documents not intended to defeat or delay the creditors. His finding is contained at the end of Para. 13 of his judgment marked in this case as Ex. D-1 to the effect that the alienations evidenced by Exs. II and III were for valuable consideration and that they had taken effect. On the question as to whether there was a fraud upon the registration law the learned Subordinate Judge held that there was no fraud. In para. 16 of his judgment the learned Subordinate Judge found that the sale deed and the mortgage deed were executed in good faith and for valuable consideration and that the insolvent had no idea at the time of the execution to defraud or defeat any of the creditors of the insolvent. This was taken up in appeal to the District Court where the learned District Judge held that since the documents were registered by the Sub-Registrar of Aravakurichi by the inclusion of a property which was not intended to be transferred and upon which no title was intended to be impressed, it cannot be held that the documents were valid in view of the Privy Council decision in -' collector of Gorakhpur v. Ramsundar Mal', AIR 1934 P. C. 157 (A ). On this ground the decision of the Subordinate Judge was reversed and it was held that the sale and mortgage deeds were not valid and binding on the Official Receiver. The alienees took up the matter in second appeal to this Court and in the decision reported in --'syed Muhammad Rowther v. Official Receiver, Coimbatore', AIR 1937 Mad 32 (B), Pandrang Row J. followed the Privy Council decision in -- AIR 1934 P. C. 157 (A), agreed with the District Judge and held that the alienations would not bind the Official Receiver at all.