DEVULAPALLI SABHANADRI SASTRULU Vs. DORBALA NAGAYYA SASTRY

JUDGEMENT

(1.) The petitioner's mother Devulapalli Kanchamma, instituted O.S. No. 7 of 1934 in the Court of the Subordinate Judge of Guntur to recover possession of properties which she claimed constituted the estate of her deceased father, Dorbala Narasimha Sastri. Her mother had predeceased her father and she was the only issue of the marriage. She averred that her father had separated from his brothers and on this footing claimed the estate as the sole heir. The lower Court dismissed the suit and Kanchamma then appealed to this Court. During the pendency of the appeal she died and the petitioner applied to be allowed to continue the appeal. This petition is now before us and is opposed.

(2.) The petitioner is an insolvent and was an insolvent when he filed the petition. He seeks to be allowed to continue the appeal because the Official Receiver has refused to become the appellant. The Official Receiver did apply to this Court on the 12 July for an order directing that he should be brought on the record in the place of Kanchamma, but on the 12 October he withdrew the application as he had not been placed in funds to meet the costs.

(3.) The petitioner has relied on the rule in Herbert V/s. Sayer (1844) 5 Q.B. 965 : 114 E.R. 1512 which allows a bankrupt to maintain a suit to recover after-acquired property in the hands of a stranger unless the trustee has intervened. This rule has frequently been applied in India, but the respondents say that as the result of the decision of their Lordships of the Privy Council in Kala Chand Banerjee V/s. Jagannath Marwari (1927) 52 M.L.J. 734 : L.R. 54 I.A. 190 : I.L.R. 54 Cal. 595 (P.C.) it can no longer be applied. It is, however, not necessary to decide this question, because even if the decision in Kala Chand Banerjee V/s. Jagannath Marwari (1927) 52 M.L.J. 734 : L.R. 54 I.A. 190 : I.L.R. 54 Cal. 595 (P.C.) has not the effect which the respondents maintain it has. Herbert V/s. Sayer (1844) 5 Q.B. 965 : 114 E.R. 1512 must now be read in the light of Hill V/s. Settle (1917) 1 Ch. 319 and when this is done it is clear that the present petition does not lie.