MT SHIYAM DEI Vs. BANKEY LAL

JUDGEMENT

(1.) The plaintiff-appellant Mt. Shiyam Dei filed this suit on 31 July 1927, praying for a declaration that a deed of gift executed by her in favour of two persona Bankey Lal and Bishunath on 10 June 1926, had been obtained by fraud and should be cancelled, and she also sought as an ancillary relief for a declaration that the house purporting to be transferred by her in that deed of gift was her own property and could not be attached or sold in satisfaction of a decree or in satisfaction of any debt due by Nanhoon Mal insolvent who was the father of the allege 1 donees. The plaintiff impleaded the donees, the official receiver of Nanhoon Mai's estate and two oreditors of Nanhoon Mal, on whose application he had been declared an insolvent and who had applied for the attachment of the house in suit by their application dated 18 February 1927.

(2.) The plaintiff's suit has been dismissed by the Subordinate Judge on his finding that the suit is barred as against the official receiver by Section 80, Civil P.C. It does not appear to me that this finding would necessarily bring the suit to an end for the main question raised by the plaintiff was her right to have the deed of gift executed by herself in favour of defendants 1 and 2 set aside and. clearly she might be entitled to a decree as against them even if she failed to establish her case that the property could not be attached and sold in respect of a debt due by the insolvent Nanhoon Mal. But I am not of opinion that Section 80, Civil P.C., should be applied to this suit. Sec. 80 lays down that no suit shall be instituted against a public officer in respect of any act purporting to be done by such public officer in his official capacity until the expiration of two months after notice in writing has been given. I do not consider that this is a suit instituted against a public officer in respect jot an act purporting to be done by him I m his official capacity. The suit which is not one of the same nature as that to which the learned Subordinate Judge has referred and which is reported in Murari Lal V/s. E.V. David . In that case the brothers of an insolvent brought a suit against the official receiver who had taken charge of the estate, claiming a two-thirds share of the house which was alleged by the official receiver to be part of the estate of the insolvent. This was clearly a case brought against the official receiver in respect of an act done by him in his official capacity. The present suit might have been brought even though the official receiver had taken no action whatever in respect of the property. The cause of action arose from the execution of a deed of gift which the plaintiff alleged to have been obtained from her by fraud, and in the first instance she sought relief against the donees who had defrauded her. The second portion of the relief claimed is no doubt directed in a manner against the official receiver as the plaintiff found that the property had, been placed under attachment. But I am not prepared to find that every suit in which an official receiver is impleaded in order that the plaintiff may obtain an ancillary relief can be set aside on the ground that notice has not been given to the official receiver under Section 80, Civil P.C. Our attention has been drawn to a case reported in Skippers & Co. Ltd. V/s. E.V. David , in which it was held: that Section 80, Civil P.C. would not apply to a suit against an official receiver, where the suit was really a suit to establish and realize a charge over property, and the official receiver was impleaded not on account of any specific action taken by him in respect of the property concerned but merely because he was for the time being in charge of it.

(3.) It may be that in the present case the plaintiff was induced to file a suit because it came to her notice that the property was in danger owing to the action of the official receiver, but her cause of action was not what the official receiver had done but what she herself had been induced to do by the other defendants. In my opinion this case should be sent back to the lower Court for a decision on the other issues. Niamatullah, J.