GOPALAKRISHNAN Vs. M A V VEERAPPA CHETTIAR

JUDGEMENT

(1.) The second defendant in O.S. No. 579 of 1970 on the file of the Court of the District Munsif, Pudukottai is the appellant. The first respondent, who died pending disposal of the second appeal, was the plaintiff. The suit filed by him was for partition by metes and bounds and separate possession of his one half share in the suit property with mesne profits.

(2.) The brief facts relating to the suit are as follows : Originally the suit property belonged to one Krishnaswami Chettiar and others. Subsequently, one S. K. Ramaswami Chettiar, son of Krishnaswami Chettiar, and his agnate Nagarathnam Ammal, became the owners of the suit properties, the former having two-third share and the latter one-third share. In I.P. 6 of 1956, Sub-Court, Pudukottai, the said Ramaswami Chettiar was adjudged as an insolvent by an order dt. 12-9-1956 and all the properties including the mortgaged property vested with the Official Receiver, Tiruchirapalli. In the course of the administration of the estate of Ramaswami Chettiar, the Official Receiver sold one-third share mortgaged to the plaintiff subject to mortgage on 29-1-1966 and pursuant to the sale and after confirmation, a sale certificate was also issued to the plaintiff on 16-6-1969. On 17-9-1969 the plaintiff obtained symbolical delivery of the one-third share through E.A. 146 of 1969 in I. P. 6 of 1956. All steps taken by the plaintiff to get separate possession of the property purchased by him by negotiations proved futile by reason of non-co-operation of the defendants, who are the legal representatives of the deceased Ramaswami Chettiar. Therefore, the plaintiff was obliged to file the suit for partition and separate possession of his share in the suit property.

(3.) Defendants 1 and 2 are the sons, third defendant is the wife and 4th defendant is the daughter of the deceased Ramaswami Chettiar. The suit was resisted inter alia contending that the sale by the Official Receiver and all the subsequent proceedings pursuant to the sale are totally unsustainable in law, and, therefore, the plaintiff derived no title to the suit property. The basis for the above contention is that the adjudication was subsequently annulled under S.43 of the Act, by the Insolvency Court on 10-7-1962 and while making such an order of annulment the Court failed to make an order regarding the continued vesting of the property for the benefit of the creditors with the Official Receiver. The order dt. 2-8-1962, of the Court revesting the properties is without jurisdiction. The failure to make a simultaneous order to continue the vesting with the Official Receiver had resulted in automatic vesting of the properties with the insolvent, and, therefore, the subsequent sale by the Official Receiver will have no effect at all.