RAMASWAMI GOUNDER Vs. PALANISWAMI GOUNDER

JUDGEMENT

(1.) THIS revision is directed against the judgment rendered in C. M. A. No. 31 of 1987, which in turn arose out of the order passed in I. P. No. 3 of 1985. The petitioner in the insolvency petition is the petitioner herein. The petitioner herein filed I. P. No. 3 of 1985 under Secs. 7, 10 and 13 of the provincial Insolvency Act, 1920, to declare himself as an insolvent. The said petition was dismissed by the first court. Aggrieved, the petitioner filed an appeal before the first appellate court. The first appellate court confirmed the order passed by the Insolvency Court . It is against that judgment and decree passed in C. M. A. No. 31 of 1987, the petitioner is in revision before this Court.

(2.) THE learned counsel appearing for the petitioner submitted as under: THE courts below are not correct in dismissing the petition filed by the petitioner, without considering the prima facie case made out by him. THE 7th respondent in the insolvency petition has already obtained a decree for Rs. 8,400 against the petitioner towards the arrears of maintenance and she has also obtained an order of arrest. THE petitioner is unable to pay the debts due to the respondents 1 to 6 and the decree debt to the 7th respondent. THErefore, the petitioner made out a prima facie case for adjudicating himself as an insolvent. THE petitioner satisfied the condition imposed in Sec. 10 of the Provincial Insolvency Act. He proved his inability to clear the debts due to the creditors. Respondents 1 to 6 produced the pronotes executed by the petitioner. It is not necessary that the said respondents should also be examined in order to prove the prima facie case. THE genuineness of the pronotes can be looked into only during the time of the final hearing of the insolvency petition. THE decree debt in favour of the 7th respondent can be realised out of the properties owned by the petitioner. THEre is no material on record for the first appellate court to come to the conclusion that the petitioner suppressed certain items of properties belonging to him. In fact, the petitioner has disclosed all the properties belonging to him as well as his share to be allotted in the partition. Since the creditors are relatives, it cannot be said that the promissory notes are not genuine. THE insolvency petition was filed not to defeat the right of the 7th respondent in realising the maintenance decree debt. In support of his contention, the learned counsel relied upon two decisions viz. , Hanibabeebi v. Munurdeen, (1938)2 M. L. J. 1042: 182 I. C. 225: 49 L. W. 167: 1938 M. W. N. 1235: A. I. R. 1939 Mad. 183 and Ranganayaki Ammal v. Rajagopalaswami Naidu, (1940)2 M. L. J. 229: 191 I. C. 670: 1940 M. W. N. 863: a. I. R. 1940 Mad. 951. On the other hand, the learned counsel appearing for the 7th respondent submitted as under: Respondents 1 to 6 are the relatives of the petitioner. THE 7th respondent is the legally wedded wife of the petitioner. THE petitioner underwent a form of marriage with another woman and is living with her along with her two children. THE 7th respondent filed a suit O. S. No. 56 of 1978 on the file of the District Munsif, Dharapuram, for collecting arrears of maintenance. THE suit was decreed. THE execution proceedings are pending. THE petitioner evaded his obligation to pay the maintenance to his legally wedded wife. In order to prevent the 7th respondent from realising her maintenance decree debt, the petitioner came forward with the present insolvency petition. THE petitioner failed to prove that his debts are more than the assets. THE petitioner failed to make out a prima facie case for adjudicating him as an insolvent. THE so-called creditors never came to the witness-box to prove their credence. THE so-called debts in favour of respondents 1 to 6 arc only fictitious. THE value of the properties shown by him in the petition is on the basis of gross under valuation. THE courts below concurrently came to the conclusion that the petitioner herein failed to establish a prima facie case for adjudicating him as an insolvent. Since the conclusions arrived at by the courts below are concurrent, under Sec. 75 (1) of the Provincial Insolvency Act, this Court cannot interfere with the findings of fact arrived at by the courts below. In support of his contention, the learned counsel relied upon the following decisions: B. Yellalu v. Nagulavaram, A. I. R. 1972a. P. 221. M. Ayyappa Naicker v. S. M. Udhavadas Firm, (1970)1 An. W. R. (S. C.) 1: A. I. R. 1969 S. C. 1344. Hemavathiamma v. Kumaravelu, A. I. R. 1968 Mys. 111. Devayee v. Ramaswami, (1977)1 M. L. J. 80.

(3.) WHILE interpreting the debt due under maintenance decree, the Mysore High Court in Hemavathiamma v. Kumaravelu, A. I. R. 1968 Mys. 111, held as under: "under the Hindu Law, which governs the parties in the instant case, a Hindu is under a legal obligation to maintain his wife, his minor sons, his unmarried daughters and his aged parents, whether he possesses any property or not. The obligation to maintain these relations is personal in character and arises from the very existence of relationship of the parties. When a Hindu refuses or neglects his legal duty, the court enforces that duty by making a decree in favour of the wife or children. When the court awards maintenance to the wife against her husband, it does not enforce the payment of any debt. Unless insolvency releases a man altogether from the obligation to support his wife and children, the husband cannot obtain discharge of his liability under a decree for maintenance by recourse to insolvency. The object of insolvency law is not to deprive the wife and children of the support and maintenance due from the husband and father which it has over been the purpose of the law to enforce. Systems of bankruptcy or insolvency have been designed with the object of relieving the honest debtor from the weight of indebtedness which has become oppressive and to permit him to have a fresh start in business or commercial life freed from the obligation and responsibilities which may have resulted by his misfortunes. Unless expressly required by statutory enactment, the court should not presume the intention on the part of the legislature in providing a law for giving relief to unfortunate debtors, to make the law a means of avoiding enforcement of obligation moral and legal devolved upon the husband to support his wife and to maintain and enucate his children. "