P K SUBRAMANIA AYYAR Vs. KTSTHANDAVAMURTHI CHETTY

JUDGEMENT

(1.) The question here is whether a decree passed by the City Civil Court declaring that the appellant is entitled to a charge over the proceeds of the sale of property belonging to one Natesa is effective as against the respondent, who is Natesa's brother. In 1931 Sabapathi Chetti, the father of Natesa and the respondent, died leaving a will dated the 15 October, 1931, by which he bequeathed to Natesa a house known as 2|46, Erulappan Street, Madras and to the respondent a house known as 17,, Kuniarappa Mudali Street. The respondent was then a boy of about ten years of age. On the 28th. October, 1936 the estate of the minor was vested in the Official Trustee of Madras and as the guardian of the respondent's property he obtained probate of the father's will. Natesa had taken possession of both, the properties and the Official Trustee was compelled to file a suit (No. 79 of 1937) on the Original Side of this Court to recover possession of the minor's interest in his father's estate. The Official Trustee based his case on two grounds. In the first place he contended that the respondent was entitled to the property representing No. 17, Kumarappa Mudali Street, by reason of the will. In the second place he said that even if the will were invalid, the respondent was entitled to have the properties partitioned and his share delivered to him. The Court appointed the Official Trustee the receiver in the suit. It transpired that after his father's death, Natesa had created a mortgage on. the property left to him. By an order of the Court this property was sold and the mortgage discharged out of the proceeds. There remained a balance of Rs. 1,927-5-3, which was paid into Court to the credit of the suit.

(2.) On the 17 February, 1938, the appellant instituted O.S. No. 244 of 1938, in the City Civil Court against Natesa for a decree for specific performance of an agreement to execute in his favour a mortgage of the Erulappan Street property. He averred that he had advanced moneys to Natesa in anticipation of the mortgage. In the alternative he asked for a charge on the property to the amount of Natesa's indebtedness to him. On the 8 August, 1938, the appellant applied for an attachment before judgment of the "Rs. 1,927-5-3, lying to the credit of the Official Trustee's suit in this Court. The appellant had not received permission of this Court to apply for the attachment of these moneys, and as for the time being they were vested in the Official Trustee in his capacity of receiver in C. S. No. 79 of 1937, the appellant's action amounted to contempt of Court, but his action was not resented and the attachment remained effective until the 27 of July, 1939.

(3.) On the 9 January, 1939, the appellant was granted a decree in his suit against Natesa. The Erulappan Street property had by this time been sold and therefore it was not possible for the Court to give a decree for specific performance of the mortgage, but it gave a money decree for Rs. 760, with interest and costs, and a charge on the property to the extent of the decretal amount. The property having been converted into money and part of the money spent in discharging the mortgage over the property, the charge could only be effected, if at all, on the money lying to the credit of the Official Trustee's suit in this Court. In the meantime, namely on the 18 August, 1938, the Official Trustee as receiver applied for the payment out to him of the money in Court. On this application Venkataramana Rao, J., passed this order: The balance of the amount, deducting the amount of the attachment may be paid to the Official Trustee. I leave it to the Official Trustee whether he should contest the attachment.