AKKAMMAL Vs. KOMARASAMI CHETTIAR

JUDGEMENT

(1.) The decision in this appeal turns on the answer to be given to a question of law, but in order to understand the question it is necessary to set out the facts, which are of a complicated nature.

(2.) On the 2nd July, 1925, one Krishna Aiyar sold to his brother Venkatachalapathi Aiyar a house in Dindigul town. Some eight months later Venkatachalapathi Aiyar executed a deed purporting to release his ownership of the property in favour of his brother Krishna Aiyar. The reason for this transaction is apparent. Venkatachalapathi Aiyar was in financial difficulties and he wanted to prevent the property falling into the hands of his creditors. In the course of the year he was adjudicated an insolvent and it is not a matter for surprise that the Official Receiver thought fit to take steps to obtain an order of the Court setting aside the deed under which Venkatachalapathi Aiyar purported to revest the title in his brother. On the 10 July, 1930, the Insolvency Court held that this was a sham transaction and cancelled the deed. This meant that the title to the property vested in the Official Receiver, as representing the estate of Venkatachalapathi Aiyar. On the 30 October, 1930, the Official Receiver sold the property to one Sulaiman, who on the 8 November, 1930, sold it to the respondent in this appeal. On the 29 March, 1931, the Official Receiver delivered possession to the respondent.

(3.) On the 20 July, 1925, Krishna Aiyar mortgaged to the appellant other immovable property. The mortgage debt was not re-paid and the appellant was compelled to file O.S. No. 77 of 1929, in the Court of the District Munsiff, Dindigul, to enforce his mortgage. As the property mortgaged was not of sufficient value to meet the appellant's claim, he applied for, and obtained, an order for attachment before judgment of the house conveyed by Krishna Aiyar to Venkatachalapathi Aiyar and now in suit. On the 11 February, 1930, the appellant was granted a mortgage decree and the property covered by it was sold in execution. As it did not realize sufficient to discharge the decretal amount, the appellant filed an application asking for the sale of the house which he had attached before judgment. The respondent then filed a petition claiming that the property was his, but this petition was dismissed on the 20th August, 1931. Thereupon the appellant proceeded with his application in execution and the house was in due course sold by the Court, the appellant being the purchaser. When he was given possession, the respondent filed an application under Rule 100 of Order 21 of the Code of Civil Procedure asking the Court to restore possession to him. This application was dismissed on the 20 August, 1935, and consequently on the 12 July, 1936, the respondent filed in the Court of the District Munsiff of Dindigul the suit which has given rise to this appeal.