SOONIRAM RAMNIRANJANDASS Vs. ALAGU NACHIYAR KOIL (TEMPLE)

JUDGEMENT

(1.) On 1 April 1933, an order of adjudication under the Presidency Towns Insolvency Act (3 of 1909) (herein called "the Act"), was made by the High Court at Rangoon against a firm therein called the S.A.R.M. Chettyar Firm and described as carrying on business as bankers and moneylenders in Rangoon. This order was made at the instance of the appellants Sooniram Ramniranjandass as petitioning creditors. At the date of the adjudication order the insolvent firm consisted of three brothers, sons, of one Ramaswami Chettyar, who had died some years before. The business was a Hindu joint family business: it had been known at one time as the S. A. Firm and had been carried on by Ramaswami's father and afterwards by Ramaswami as managing member (karta) of the family. On 19 December 1933, the insolvents' schedule of affairs was filed, showing as creditor No. 85 in the list of unsecured creditors, the name of a Hindu temple situate at a place called O'Siruvayal in the Ramnad district of Madras, the place of origin of this Chetty family. The temple is called Alagiya Nachiar temple. The amount of the debt is stated as Rs. 48,915.10-0; the "date when contracted" is entered as April 1932; and the consideration is described as "deposit". In June of 1934 a proof of debt for the sum mentioned was tendered on behalf of one Annamalai as trustee of the temple, but in July 1937, this was supplemented by another in which Annamalai claimed to prove on behalf of the deity as a worshipper representing the deity and all the worshippers. In this amended proof, interest to the date of adjudication is added to the sum appearing in the insolvents' books making the total debt Rs.51,488-12.3. The debt is described as amount due on current account which amount was gifted to the said Alagu-nachiar Koil (temple) by the insolvent firm who retained custody of it as a custodian.

(2.) In December 1935, seven affidavits, all in the same form, were filed, by each of which the deponent claimed to be a trustee of the temple and explained that the temple was administered by seven trustees each representing a "karai". They alleged that the insolvent firm was possessed of trust funds belonging to the temple and consented that Annamalai described by them as a close relative of the insolvents should be regarded as a proper person to recover the trust funds for the temple. By S.52 of the Act, the property of the insolvent divisible amongst his creditors does not comprise property held by the insolvent on trust for any other person. Upon this well-known principle a proceeding was begun on 17 February 1936, in the name of the "85 creditor Alagunachiar Koil" by a statement of claim to recover Rupees 51,488-12-3 in full as trust money. The appellants as "adjudicating creditors" filed objections, whereupon the Official Assignee proceeded to act as a tribunal to decide the matter; and after hearing oral evidence in February 1936, delivered a written judgment or order dated 12 May 1936, holding that the claimant is entitled to be paid fully and to have a charge on the assets of the insolvents for the sum so due.

(3.) Against this, as a judicial order, the appellants purporting to act under S.86 of the Act, filed a memorandum of appeal and Braund J. as the Judge exercising the insolvency jurisdiction of the Court, dealt with the matter on that footing. On 29 June 1936, be allowed the appeal and declared that the temple had no right to take the sum in question out of the estate of the insolvents or to exclude it from the insolvents' assets in the hands of the Official Assignee. Accordingly he dismissed the application made to the Official Assignee and allowed the appellants certain costs of that application and of the appeal. From this order an appeal was taken to an Appellate Bench of the High Court. The learned Chief Justice and Dunkley J. having differed in opinion (7 December 1936), the appeal was referred to Leach J. as third Judge, who on 21 January 1937, gave judgment agreeing with the Chief Justice in directing that the appeal be allowed and the decision of the Official Assignee restored. From this order the present appeal to His Majesty has been brought.