ALIMAHMAD ABDUL HUSSEIN Vs. VADILAL DEVCHAND PAREKH

JUDGEMENT

(1.) The facts material to the point arising in this second appeal after the remand are briefly these: One Tyabaji Farzullabhai applied to the Court for the Relief of Insolvent Debtors, Bombay, and the usual vesting order was made on the 10th January 1887. Subsequently on the debtor s application a personal discharge subject to any further orders was allowed and in accordance with the practice, that obtained then, a judgment for all the debts was entered against the insolvent in favour of the Official Assignee under Section 86 of the Indian Insolvency Act ( 11 & 12 Vic. c. 21 ) on the 17th August 1887. The insolvent did not obtain any final discharge under the Act and in fact nothing was done in the matter of the insolvency up to his death in 1904 or up to November 1917 after his death. Owing to the non-production of the necessary papers the lower appellate Court had some doubt as to the existence of the vesting order and as to whether there was a final discharge of the insolvent. In the argument before us the facts as stated above have not been disputed, and the papers relating to this insolvency, which we have seen with the consent of the parties in order to avoid delay and further remand on points capable of being easily ascertained, support the statement. Tyabaji was, therefore, an undercharged insolvent from 1887 to the time of his death in 1904.

(2.) In 1898 Tyabaji purchased a house at Kapadvanj and mortgaged it with possession on the same day (9th July 1898) to one Vajiraboo for Rs. 700 Babashahi and executed a second mortgage in favour of one Jamnadas on the same day. It is found by the lower appellate Court and not contested before us that the house was purchased by Tyabaji with the money borrowed from the two mortgagees.

(3.) Jamnadas filed suit No. 93 of 1910 on his mortgage against the heirs of Tyabaji and obtained a decree, in execution whereof the house was sold through the Court subject to the first mortgage and purchased by the present plaintiff, Vadilal, on the 12th September 1912. The plaintiff as auction-purchaser then filed the present suit against the defendants, the heirs of Vajiraboo, for redemption of the first mortgage. The trial Court allowed the plaintiff s claim. The lower appellate Court confirmed the decree. On appeal to this Court certain issues were sent down for findings in connection with the insolvency of Tyabaji. Before the remand the defendants purchased the right, title and interest of the Official Assignee in November 1917.