KATRAPATI HANUMAYAMMA Vs. OFFICIAL RECEIVER

JUDGEMENT

(1.) This is an appeal from an order of the learned District Judge of Guntur reversing an order passed by the Additional Subordinate Judge of that place and holding that the charge created in the appellant's favour was not binding on the Official Receiver. A suit for maintenance was instituted by the appellant on 28 September 1932 in the District Munsif's Court at Guntur in which she had also prayed for the creation of a charge on certain immovable properties belonging to her husband Venkatanarayana (O.S. No. 463 of 1932). This was decreed on 20 March 1933 but the charge was created by the Court only over one item of the property. Venkatanarayana had in the meantime applied for insolvency (I.P. No. 158 of 1932). This petition was presented on 11 October 1932 although he was not adjudicated until 9th September 1933. A year later, the Official Receiver made an application to the Subordinate Judge, Guntur, under Secs.4, 53 and 54, Provincial Insolvency Act, asking for a declaration that the charge created by the District Munsif in the appellant's favour in O.S. No. 463 of 1932 was not binding on him (I.A. No. 1563 of 1934). This prayer was based on the allegations that the suit was not contested by the insolvent and that he had collusively suffered the decree to be passed against himself with intent to defeat, delay and defraud his creditors. Reliance was placed by the Official Receiver also on the fact that the petition for insolvency was pending at the time when the charge was ordered to be created and it was therefore urged that the appellant would not be entitled to claim protection under Section 55, Provincial Insolvency Act. It was stated on behalf of the appellant on the other hand that her relations with her husband had been strained and that she had been living separately from her husband for more than 15 years. She also alleged that the petition for insolvency was presented by Vekatanarayana to defeat her rights after a defence had been filed by him in the civil suit and he found the plaintiff's claim to be unanswerable. It was also urged that inasmuch as the suit on behalf of the appellant was instituted before the insolvency petition was filed, the charge created by the Court in her favour would remain unaffected by the order of adjudication passed after the decree had been obtained by her. The learned Subordinate Judge, who heard the application, was of opinion that there was no evidence to show that any collusion existed between the appellant and her husband, Venkatanarayana, and since the suit was contested by the latter, the decree could not be held to have been suffered by him with intent to defeat, delay and defraud his creditors. He also held that the Court was justified in passing the decree creating a charge in the appellant's favour and that the insolvency proceedings were subject to the Civil Court's decree. The Official Receiver's objection was there fore turned down. This order was appealed against, and the learned District Judge held that the maintenance decree passed by the District Munsif and the charge for it created by him, are in effect, a farce to defeat and delay the general body of creditors.

(2.) He was also of opinion that the suit for maintenance, though seemingly a contested suit, was really "an ex parte suit" and that the District Munsif's observation, made while rejecting an application presented by certain creditors who had applied to be impleaded as parties that the suit was being hotly contested, was incorrect. The Official Receiver's appeal was therefore accepted. This has given rise to the present appeal. It may be noted that the Official Receiver did not, in his application, attack the portion of the decree passed by the District Munsif granting maintenance to the appellant at the rate of Rs. 96 per annum and yet a perusal of the learned District Judge's judgment would show that even that portion of the decree was held by him to be void against the Official Receiver. How in the absence of any evidence on the record the learned District Judge came to the conclusion that any collusion existed between the appellant and her husband, it is not easy to see unless he was influenced by the fact that the suit was between the husband and the wife and that it was filed a fortnight before the actual presentation of the insolvency petition. The duty of maintaining a wife is cast by Hindu law on her husband, Mahalakshmamma Garu V/s. Yenkataratnamma Garu (1883) 6 Mad. 83 and if he neglects or refuses to maintain his wife, which he is legally bound to do, she would have no option but to have recourse to law. The relationship between the parties could not by itself be a ground for arriving at the decision that any litigation between them must necessarily be held to be collusive. The other fact that the suit by the appellant was filed within a few days before the actual presentation of the insolvency petition is not, although suggestive of collusion, enough by itself to arrive at the conclusion that it was filed in consequence of a conspiracy existing between them. It may well have been, as suggested in the appellant's reply to the petition, that the petition for insolvency was itself prompted by the knowledge of the institution of the suit for maintenance.

(3.) There are other facts however which lead to an inference that the suit, for maintenance was not collusive but that of a bona fide character. That it was contested admits of no doubt. The record shows that it was. If the husband wished to contest the suit earnestly he had to disclose the debts which he owed. This was a very material fact which Venkatanarayana had to plead in order to bring down the rate of maintenance, if granted by the Court, to as low a figure as possible. He did so, and the Court was apparently influenced by the plea. The fact cannot be overlooked that while passing a decree for maintenance, the creation of a charge rests with the Court. It is a discretionary matter and the discretion need not at all have been exercised in the appellant's favour. Had a charge been created on his property by the husband either directly or indirectly or had he even given his consent to its creation by a third person or even by the Court the matter might have assumed a different aspect. But when the question of creating a charge depends entirely on the discretion of the Court, it cannot be reasonably contended that any charge created by the Court was in consequence of a collusion existing between the parties to the suit. Moreover, the exercise of a judicial discretion by the Court can also be inferred from the fact that while a charge was being claimed by the appellant in respect of four properties mentioned in the schedule attached to the plaint, the Court did not accede to that prayer but ordered the charge to be limited to one item only. The proposition that a Court is legally entitled to create a charge in a suit for maintenance is well recognized and was not contested before me. It is this fact which distinguishes, in my mind, cases such as Tulsiram V/s. Mohomed Arif (1928) 16 A.I.R. Lah. 738 and Achutaramayya v. Official Receiver, East Godavari (1938) 22 A.I.R. Mad. 817, cited by the learned Counsel for the respondent.