GOPALU PILLAI Vs. NRKOTHANDARAMA AYYAR

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff Kothandarama Ayyar to recover his half-share of a debt evidenced by a promissory note executed by defendants 1 and 2 in favour of his deceased brother Natesa Ayyar and to get the other half-share paid to defendant 3 who is Natesa Ayyar's widow. The promissory note was executed on 21 July 1925 for Rs. 3,945- 8-10 according to the particulars given therein. The plaintiff alleged that at the time of the execution of the suit note, the plaintiff and his brother were undivided. Natesa Ayyar died on 22 March, 1926 leaving a widow Avayambal Ammal the present defendant 3. The relative rights of the plaintiff and defendant 3 in the properties of the family being the subject of doubt a partition-deed and an agreement were executed between them on 6 June 1926. The partition-deed generally provides that the family properties not expressly mentioned in it should be taken equally, (Ex. 1). But the agreement (Ex. E) expressly provides that the amount due to the family and mentioned in the list attached hereto shall be collected either in the ordinary course or through Court bearing the expenses in common and the amount realised shall from time to time be received equally.

(2.) A schedule of debts was appended to it and the debt evidenced by the suit promissory note is included in it. The suit was filed on 23 July 1928 but it is admitted that 21 and 22 July, were holidays and the Court reopened on the 23rd. No question of limitation was raised in the issues nor was any argued before us. Defendant 1 pleaded that the suit debt belonged exclusively to the deceased Natesa Ayyar (Para. 6), and that the partition-deed was brought about fraudulently (Para. 8). He also pleaded that the suit not being based on an assignment from defendant 3 should be dismissed. Issue 1 is whether the plaintiff is entitled to maintain the suit. We may assume it is intended to raise all possible technical objections to the maintainability of the suit. Defendant 3 remained ex parte. She was so declared on 3rd September 1928. The trial of the suit began on 26 November 1928 and arguments were partly heard on 27 November. On 30 November on the plaintiff's request the case was adjourned for the production of succession certificate for defendant 3's half share. On 12th December the plaintiff's pleader put in a petition to set aside the ex parte order against defendant 3. This is somewhat extraordinary because one would expect that defendant 3 would herself put in such a petition. On the same day a written statement was filed by defendant 3 appearing through the plaintiff's vakil in which she prays for a decree in her favour for one-half of the amount according to the plaint. She does not pray for her name being transferred as a plaintiff. The written statement was not accompanied by any affidavit of hers explaining her late appearance. On that date the order declaring her ex parte not being set aside she was not even entitled to file a written statement. The case was adjourned to 18 December 1928 for the production of the succession certificate in respect of her share. On 18 December the ex parte order against defendant 3 was set aside and the case was adjourned for the production of the succession certificate. Succession certificate was ordered to be issued to her on 20 December by the same Sub-Judge.

(3.) It was produced on the 21 and exhibited as Ex. 6, and judgment was delivered on the same day giving a decree for the whole amount of the debt in favour of the plaintiff and defendant 3. Defendant 1 files this appeal. The first of the points raised by the appellant which should be dealt with in the logical order is that the whole suit is barred and is not maintainable by reason of certain proceedings in the insolvency of defendant 1. Defendant 1 became very heavily indebted. He filed I.P. 15 of 1925 in the Subordinate Judge's Court of Mayavaram for being-declared insolvent. It was transferred to the Official Receiver's Court of Negapatam and numbered as I.P. 1 of 1926. He was adjudicated on 16 July 1926. He then applied by a petition dated 23 March 1927, in the Subordinate Judge's Court of Mayavaram suggesting a private arrangement and praying for stay of further proceedings before the Official Receiver, Negapatam. In this petition Natesa Ayyar appears as respondent 3 but it is also shown that he died and the present plaintiff and defendant 3 were brought in as legal representatives and made respondents 23 and 24. In Para. 4 of the petition it is alleged that the petitioner has debts to pay to the extent of Rs. 8,723-11-7. This figure excludes the amount due on the suit promissory note. A note was made at the end of the list of debts that although he executed the suit promissory note in favour of Natesa Ayyar the defendant 2 was liable to pay on it and that he (i.e., defendant 1) is not liable. Notice was ordered on this petition on 22nd April. Respondents 23 and 24, i.e., the present plaintiff and defendant 3 were served by 21 July. Finally permission was granted to the petitioner to raise the required amount by executing a usufructuary mortgage and to deposit Rs. 8,500, in Court for paying off the debts. This was on 16 August 1927. On 28 October 1927, the present plaintiff and defendant 3 filed a memorandum in which they stated that they were willing to receive Rs. 1,443-1-3, in full satisfaction of another debt due to them on a mortgage mentioned in the insolvency schedule. This memorandum makes no reference to the suit debt. It does not say that they gave up that debt. It does not raise any objection to the recognition of the proposed arrangement on account of the petitioner not offering to pay the suit promissory note, i.e., they agreed that the suit promissory note be left out of consideration in the settlement proposed and should not form an obstacle to it. But on the other band they did not give up the rights in it. The proposal to pay off the debts with the money raised on the mortgage was sanctioned on 28 October 1927. Presumably all the debts other than the suit promissory note debt were paid off. The present plaintiff and defendant 3 filed an appeal against the above order dated 28 October 1927, objecting to the arrangement on the ground that provision ought to have been made for the payment of the suit promissory note debt also. The appeal was dismissed by the District Judge of East Tanjore on the ground that they consented to the proposed agreement : vide Ex. 5, dated 26 July 1928.