SHANMUGAM ALIAS MUTHUKARUPPAN Vs. N S RADHAKRISHNA SARMA

JUDGEMENT

(1.) The facts of the application under Order 21, Rule 16 and Order 84, Rule 6, Civil P. C., out of which this appeal arises, are as follows : The appellant here was respondent 2 to the application in the Court below, while respondent 1 here was the applicant there. The application prayed that the assignment in favour of the applicant of rights under the final decree in a mortgage suit, O. S. No. 139 of 1926, Sub-Court, Madura, by the decree-holder therein, may be recognised, and that a decree may be passed against the first judgment-debtor, the father of the second personally and against the joint family assets of the two defendants for Rs. 34538-14-11, being the unrealised balance still outstanding after the sale in execution of the final decree in the suit. The assignment relied on as the basis of the application was one effected by the original decree-holder after the confirmation of the execution sale under the final decree. The deed of assignment is filed as Ex. P-1 and is dated 26-1-1943. It provided that the profit and loss incidental to the assignment was to be the assignee's own concern and described the first item of the Schedule B attached to it, which is the item with which we are concerned in this appeal, as the right to obtain a personal decree against defendants l and 2 in o. Section No. 139 of 1926, Sub- Court, Madura, as per the mortgage decree already passed therein, after giving credit to the sum of Rs. 11000, realised by the auction sale of the properties comprised in the mortgage decree. The respondents to the application resisted it--respondent 1, the father of the appellant before us, contending that the assignment in favour of the petitioner was inoperative, being a benami transaction unsupported by consideration, respondent 2, the appellant before us, contending that the decree was liable to be scaled down under Madras Act IV [4] of 1938 and that if that was done, no further amount would be found due. The principal Subordinate Judge of Madura, who tried the application, raised two points for determination : (1) whether the assignment is true and valid; and (2) whether defendant 2 is entitled to have the decree scaled down. He found on both the points in favour of the petitioner and allowed the application. Against this order respondent 2 in the Court below has preferred this appeal.

(2.) Both the points have been reiterated before us in appeal by Mr. K. S. Ramabhadra Aiyar, the learned advocate for the appellant, with the emphasis and exhaustiveness characteristic of him. The learned advocate also raised a further point of the unmaintainability of the application out of which this appeal arises, to which we shall in detail refer in the sequel. 6/20/2007 Shanmugam alias Muthukaruppan vs. N.S. Radhakrishna Sarma and Anr. (10.03.1949... Page 3 of 5

(3.) On the first of the points the learned Subordinate Judge in the Court below held that in spite of the inadequacy of the consideration for the assignment as found by him--which was apparently the only circumstance pressed before him in connection with this point--the assignment could not be regarded as necessarily nominal and consequently inoperative. We accept his finding. On the second of the points, the learned Subordinate Judge observes that admittedly defendant 1 is not an agriculturist within the meaning of Madras Act IV [4] of 1938 and holds that under Section 6 of the Act defendant 2, his son, must also be deemed a non-agriculturist. Against this view of the learned Subordinate Judge it is contended by Mr. Ramabhadra Aiyar firstly that it is very material for the decision of this latter point to know whether defendant 1 was assessed in his individual capacity or as manager of the joint family of which his son is a member, and that in the absence of proof that the assignment was in the latter capacity, the disqualification attaching to the father under proviso (a) to Section 3 of the Act would not extend to the son. In support of this contention he cited Rajoo v. Palaniappa Chettiar, 1940-2 M. L. J. 817 : (A.I.R. (28) 1941 Mad. 289). It is next contended by him that the burden of proving the facts required by the proviso to the section lay upon the creditor. In support of this submission he cited Periasami Pillai v. Sivathia Pillai, 1940-2 M. L. J. 498 : (A. I. R. (28) 1941 Mad. 112). We have come to the conclusion that both the contentions must be negatived. The first was not a point raised in the lower Court, and the second bears no force in view of the admission made in lower Court.