AMMATHAYARAMMAL Vs. OFFICIAL ASSIGNEE

JUDGEMENT

(1.) The 1 defendant in the suit under appeal is an insolvent and the 2nd defendant is his wife. The Official Assignee claimed in the suit a declaration that three houses, the title deeds of which stand in the name of the insolvent's wife, the 2nd defendant, were in reality the property of the insolvent who paid for them. The defendants on the other hand contended that the insolvent's wife was the actual buyer and that all the money required came from her pocket with the exception of l/6 of the price of one of the houses.

(2.) It is not necessary at this stage to go into any of the facts of the case because an objection has been taken, which we are dealing with as a preliminary objection, to certain procedure adopted at the trial. The Official Assignee called the insolvent, the 1 defendant in the suit, in support of his case. Whilst he was under examination-in-chief, Mr. Grant who appeared for the Official Assignee put a number of questions to the witness of a cross- examination nature. Objection is taken that Mr. Grant cross-examined his own witness. This, it is contended by the appellant, he was not entitled to do unless (1) the witness first showed himself to be hostile, and (2) leave of the Court to put such questions to him had been obtained. It is objected, first, that the witness did not show himself by his demeanour to be hostile; and, secondly, if he did, the consent of the Court to cross-examine him was never obtained. There is nothing on the record of evidence to show that any submission was ever made to the Trial Judge that the witness was hostile and that leave was sought to cross- examine him. Mr. Grant quite fairly says that he has no recollection of ever having made any such submission. It is equally clear that no objection to the procedure adopted by the learned Counsel for the Official Assignee was taken by his opponent. From the concluding-passage in the learned Trial Judge's judgment it would appear that Mr. Srinivasa Aiyangar who appeared for the defendants in the course of his argument condemned the procedure already referred to. The learned Trial Judge deals with Mr. Srinivasa Aiyangar's argument on this point and states as follows: I am aware that, as between two ordinary litigants, such a method of procedure has been strongly condemned by the Judicial Committee. The Official Assignee stands in a different and frequently a very embarrassing position. He represents the estate of the insolvent, who is usually colluding with transferees against his creditors. The insolvent, in such a case, has to be made a party. The Official Assignee must examine him as a witness, for there are certain things that only he can speak to, but it would be absurd to treat him as having been put forward as a witness of truth, by all of whose statements the Official Assignee is bound. In this case the insolvent had to be examined to admit the correctness of his banking account and the fact that all the money for the houses came out of it. Beyond that, everything he wanted to say was in favour of his wife and I can see nothing improper in allowing the Official Assignee to cross-examine him in order to show that his evidence, in other respects, was not to be accepted and to elicit admissions from him that were inconsistent with his support of his wife.

(3.) What, in my view, is to be understood by these observations is (1) that no objection was taken to Mr. Grant cross-examining his own witness by Mr. Srinivasa Aiyangar while the witness was in witness-box, and (2) that the Trial Judge did not interfere but allowed the cross-examination to go on. What is quite clear is that, if Mr. Srinivasa Aiyangar had objected to this procedure or Mr. Grant had asked for permission to adopt it, Waller, J. would have disallowed the objection and allowed Mr. Grant to cross-examine the witness for the reasons he has stated.