DEVAYEE Vs. S RAMASWAMI

JUDGEMENT

(1.) THIS second appeal, having been referred to a Bench by Sethuraman J. , comes up before us. The wife of the first defendant filed a suit for maintenance. The allegation in the plaint is that on 13-2-1971, the first defendant beat her, took away her jewels and drove her away from the house. She claimed 11/2 pothies of paddy and 11/2 pothies of cholam every year, in addition to Rs. 100 towards her other expenses. She also claimed that she was entitled to reside in a portion of the house belonging to the first defendant. She further claimed that she was entitled to a charge over the plaint schedule property for securing due payment of the maintenance. Before the filing of the suit, the first defendant had filed I. P. 29 of 1 971, on the file of the Sub-Court, Salem, and was adjudged as insolvent. The properties of the first defendant had vested with the second defendant, Official Receiver of Salem. In the insolvency proceedings, the properties of the first defendant were ordered to be sold in I. A. No. 2 of 1972 on 7-7-1972. Hence, the plaintiff impleaded the Official Receiver also as the second defendant. The first defendant allowed the suit to proceed ex parte. The second defendant filed a written statement, in which the main objection was that the suit was barred under S. 28 (2) of the Provincial Insolvency Act, in that the claim for maintenance was a debt provable in s insolvency, and that as the suit was filed without the sanction of the Insolvency Court, the suit was not maintainable and should be dismissed.

(2.) THE trial court, on the question as to whether the suit is maintainable, following the decision of this court in Ranganayaki Ammal v. Rajagopalaswami, 1940-2 Mad LJ 239 = (AIR 1940 Mad 951) held that the claim for maintenance was a debt provable in insolvency and as such the suit was not maintainable. On appeal by the plaintiff, the District Judge agreed with the trial court and held that the suit was not maintainable. The appellate Judge also relied on the above said decision of this court reported in Ranganayaki Ammal v. Rajagopalaswami, 1940-2 Mad LJ 239 = (AIR 1940 Mad 951 ). The learned appellate Judge expressed the view that when once it is held that maintenance is a debt within the meaning of S. 28 (2) of the Act, it would necessarily follow that a suit for maintenance with a claim for a charge over the properties of the insolvent can not be entertained without the sanction and leave of the Insolvency Court. The wife preferred a second appeal to this court, and while referring the matter to a bench, Sethuraman J. has stated that the two contentions made by the learned counsel for the appellant were (1) that the courts below were wrong in assuming that there was a debt in the present case which was provable in insolvency; and (2) that in any event the salary earned by the first defendant as a teacher does not vest in the Official Receiver to the extent of at least Rs. 200, so that it would be open to the plaintiff to proceed against that salary for the purpose of enforcing her right to maintenance and that to that extent the leave of the insolvency court is not necessary as the property does not wholly vest in the Official Receiver. The learned Judge after referring to the decisions reported in Hanibabeebi v. Syed Munurdeen, AIR 1939 Mad 183; Mohammed Ali methabhai in re AIR 1930 Bom 144, Ranganayaki Ammal v. Rajagopalaswami, 1940-2 Mad LJ 239 = (AIR 1940 Mad 951) and Hemavathiamma v. Kumaravelu, AIR 1968 Mys 11, held that the matter was not free from difficulty and none of the decisions considered the question as to whether the suit could be filed at any rate with reference to the assets which did not vest in the Official Assignee or the Official Receiver. As it was not clear from the decisions as to whether the debt was one provable in insolvency, the matter was referred to a bench by the learned Judge.

(3.) THE decision which the courts below found binding on them is Ranganayaki ammal v. Rajagopalaswami, 1940-2 Mad LJ 239 = (AIR 1940 Mad 951 ). The facts as given in the headnote disclose that a suit was filed by the mother and unmarried sisters of the insolvent to recover arrears of maintenance on the charge of the family properties and also for recovery of future maintenance on the charge of the same family properties. The defendant in the suit was adjudged an insolvent before the suit was filed and the properties vested in the official Receiver. Leave of the Insolvency Court was not obtained. The learned judge stated that it could not be disputed that the claim for marriage expenses arrears of maintenance, lump sum on account of residence and clothing for the mother was a claim for debts proveable in insolvency and that this was about 90 per cent of the claim put forward in the suit. Even as regards the claim for future maintenance, the learned Judge observed, having reference to the language of S. 34 (2) of the Act, that he was not satisfied that it was not a debt proveable in insolvency. On the basis that the debt was one proveable in insolvency the learned Judge came to the conclusion that the plaintiff being a creditor, to whom the insolvent was indebted in respect of a debt provable under the Act was forbidden by S. 28 (2) of the Act, to bring any suit against him without the leave of the insolvency court. In this view, the learned Judge held that the suit was not maintainable and dismissed it. One other decision which needs to be referred to before we deal with the provisions of the Act is hanibabeebi v. Syed Nanurdeen, AIR 1939 Mad 183. In that case, the wife obtained a decree against her husband in 1932, awarding her mahar and maintenance. The husband was adjudicated insolvent in 1933. In 1934, the wife filed an execution petition for arrears of maintenance which were then due for the arrest of the husband. It was held that S. 34 (1) of the Act did not apply and part of the debt at least having been incurred before the adjudication, it was provable in insolvency and that the decree-holder could not proceed to execute the decree without the leave of the insolvency court. King J. in that case held that at any moment a wife, who is a decree-holder under a decree of this kind, can come to the Insolvency Court end say that her husband is indebted to her in a fixed sum and that, therefore, S. 3 (1) which says that a debt is not proveable in insolvency because the debt is incapable of being fairly estimated cannot possibly apply to a claim of this kind. This decision, it may be seen, is applicable to cases where a decree has already been obtained. The learned judge himself proceeded to express some doubt as to the date on which the wife may make the application or the date upto which she may calculate her arrears. But the learned Judge did not express any opinion on this point.