V SUBRAMANIA AYYAR SON OF VAIDHYANATHA AIYER ON BEHALF OF AND IN THE NAME OF OFFICIAL RECEIVER, EAST TANJORE Vs. SIVAKAMI ACHI

JUDGEMENT

(1.) The appellant is a creditor acting on behalf of and in the name of the Official Receiver in the insolvency of one Kumarappa Chetti. Kumarappa Chetti's grand-father many years ago on the occasion of the marriage of his son; the husband of the present respondent 1, received from respondent 1's family a deposit of the amount of her stridhanam. Following the usual Nattukottai Chetti practice, this money was left in the firm of the father-in-law to accumulate interest for the benefit of the bride and her offspring. The proprietor of the firm and both his sons having died, the insolvent Kumarappa became the proprietor of the firm and continued to hold this deposit along with other moneys of the business. There can be no doubt in the circumstances of the case that when he succeeded to the management of the family firm he must have been fully acquainted with the circumstances in which this deposit was made. A suit was filed for the return of the deposit with accumulated interest. It resulted in a compromise decree. The judgment-debtor having become an insolvent, the Official Receiver moved the trial Court under Secs.19 and 21 of the Madras Act ? of 1938 to amend the compromise decree. To meet a possible objection regarding procedure the insolvent also filed a similar application, the two being heard together. The lower Court held that the decree in question could not be scaled down because it embodied a liability arising out of a breach of trust, falling under Section 4 (f) of the Act.

(2.) A preliminary objection was raised that this appeal by an authorised creditor representing the Official Receiver was not maintainable, on the ground that, by Section 19 relief is given on an application by the judgment-debtor and that therefore it is only the insolvent who could maintain the application and file the appeal. No procedure is laid down in Section 21 of Madras Act 4 of 1938 for the application of the Act to the debts of insolvents. But as has been pointed out, it is reasonable that both the Official Receiver and the insolvent should be parties to proceedings in Court arising out of that section. When we turn to Section 19 we find that the proceedings have to be instituted on the application of a judgment-debtor. But we have held in Palani Gonndan V/s. Peria Goundan ( 41) 28 A.I.R. 194l Mad. 158 that the term judgment- debtor used in Section 19 must be read widely and that it would cover a purchaser of the rights of the judgment debtor. Similarly we have no doubt that it would be sufficiently wide to cover an Official Receiver in whom the estate of the judgment-debtor is vested, who is the only person to satisfy the decree debt. In many cases it would no doubt be desirable that the insolvent should be a party to an appeal from a decision under Section 19 read with Section 21. But, in the circumstances of the present case, when any contentions which the insolvent might wish to urge would be the same contentions as those which are put forward by the present appellant, we do not think it necessary to adjourn this appeal for the impleading of the insolvent.

(3.) On the merits there is, in our opinion, very little to be said for this appeal. It seems to us clear having regard to the practice of the Nattukottai Chetty community and the circumstances in which this deposit was made that when respondent 1's father-in-law received this money as stridhanam from respondent l's parents he received it under an obligation to hold it for a particular purpose and that the character of the deposit was such as to make the position of the recipient of the deposit analogous to that of a trustee. When the father-in-law died and the control of the firm passed to his sons and eventually to his grandson each of those persons as proprietor of the firm received its assets including this particular deposit under the same obligations as those which lay upon the original proprietor of the firm. The insolvent Kumarappa when he took over this deposit must have been fully aware that it was a deposit received for a particular purpose and held in a fiduciary capacity by the proprietor of the firm. When he himself became the proprietor, he assumed the same character and incurred the same obligations. When therefore he refused to pay back the deposit to the person entitled, he committed a breach of trust. The decision of the lower Court is correct and the appeal is dismissed with costs of respondent 1.