P K NAINAR ROWTHEN Vs. KUPPAI PICHAI ROWTHEN

JUDGEMENT

(1.) This is an appeal by defendant 3. The plaintiff obtained a decree against defendant 1 in Penang. On this judgment he got a decree on 8 March 1911 in the District Court of Ramnad. In execution of this decree the plaint properties were attached. A claim was preferred by one Bathummal, guardian of defendant 2 Madhar who had inherited under a will dated 16th January 1909 properties of his paternal grandmother Sikkandar Bi Bi who derived title to those properties under a sale-deed executed in her favour by her husband, the father of defendant 1 Alla Pichai. The claim was allowed and the plaintiff filed O.S. 16 of 1916 in the Ramnad Court to set aside the claim order and to confirm the attachment at least so far as one half of the properties was concerned as the late Nabob's (the brother of Madhar) half share was inherited by his judgment-debtor, Nabob 3 father, defendant 1 herein Allapichai, and he got a decree. Now the trouble is caused by the fact that Allapichai who as stated has succeeded to the share of his son Nabob in the properties of Sikkandar Bi Bi filed in 1912 his petition in insolvency in Ramnad. The plaintiff on a sale by the Official Receiver purchased defendant 1's half-share in the suit properties on 12 January 1920, and got delivery on 17 August 1920. This is the plaintiff's title.

(2.) As regards defendant 3's title, defendant 3 obtained a decree against defendant 2 Madhar on a promissory-note executed by his guardian Bathummal in discharge of a prior pro-note executed by Sikkandar Bi Bi for the benefit of her grandsons. Madhar and the deceased Nabob. He brought the property to sale and par-chased it in execution. He is the maternal uncle's son of defendant 1. The decree was in O.S. No. 21 of 1916 and. the sale to him in execution was on 7 July 1917. Allapichai was not adjudicated an insolvent till 23 March 1917. The Official Receiver conveyed half the property to the plaintiff, under the impression that as it formed part of the assets of Allapichai he was justified in so doing. The Subordinate Judge held that the rights of defendant 3 were postponed to those of the plaintiff. When defendant 3 bought at the execution sale, the Official Receiver was not brought on to the record.

(3.) Now the question is, does the Official Receiver's title take precedence over defendant 3 s? A passing reference must be made to what happened in the lower Courts. The first Court found that, as Allapichai's wife Ponnammal had been divorced, she ceased to be the mother of Nabob on that account. This was not attempted to be supported in the lower appellate Court or before us. Ponnammal would not of course cease to be the heir of Nabob even though she were divorced, and the heirs to Nabob's half when he died in 1914 would be his father as to two-thirds and his mother Ponnammal as to one-third.