KUNHITTY SAHIB Vs. CHERU
LAWS(KER)-1963-12-13
HIGH COURT OF KERALA
Decided on December 13,1963

KUNHITTY SAHIB Appellant
VERSUS
CHERU Respondents


Referred Judgements :-

ITTICHERIA V. CHACKO ISSAC [REFERRED TO]
HAMEED KOYA VS. ARUNACHALAM NADAR [REFERRED TO]



Cited Judgements :-

MUHAMMAD PATHUMMAL VS. PADMANABHA PILLAI [LAWS(KER)-1964-12-22] [REFERRED TO]


JUDGEMENT

- (1.)These appeals arise from proceedings under S.15 of the Kerala Agriculturists Debt Relief Act, 31 of 1958. The 14th respondent in the court below, who is the debtor petitioner's wife, is the appellant in C. M. A. No. 39 of 1961 and the 28th respondent in the court below is the appellant in A. S. No. 292 of 1961. Both appeals arise from the same order.
(2.)Cheru, the debtor petitioner, filed a petition under S.15 of Act 31 of 1958 for discharge of his debts as provided in S.18. The 28th respondent, one of the creditors of the petitioner, filed objections stating that the debtor had fraudulently alienated a substantial part of his property to his wife, the 14th respondent in the court below, that these alienations were sham transactions, that the debtor was still in possession of such properties and that these also should be included among the assets of the debtor for the purpose of these proceedings. The properties thus sought to be included are described in schedules A to J in M. P. No. 1947 of 1959 filed by the 28th respondent. When he was examined he gave up the case regarding the items in schedules G, H, I and J. After taking evidence the court below held that items 1 and 3 in schedule A, 1 and 4 in Schedule C, 1 acre in schedule E and the jenmom right of the property in schedule F were really assets of the debtor. Some of the items had been alienated by the 14th respondent before the filing of the petition, and these were excluded as not belonging to the debtor. The appellant in the civil miscellaneous appeal questions the correctness of the order directing the inclusion of these items of property in these proceedings. The appellant in A. S. No. 292 of 1961 wants the properties in schedule D which were transferred by the debtor to his wife and by the latter to the 21st respondent in the court below to be treated as part of the assets of the debtor.
(3.)Two questions arise for decision, namely, (1) whether the non inclusion of part of the assets of the debtor should entail dismissal of the petition under S.15 and (2) whether the court has jurisdiction under S.15 to 18 to question the validity of alienations made by the debtor. According to the appellant in C. M. A. No. 39 of 1961 the court is bound to dismiss a petition under S.15 if all the assets are not included in the petition, and this is the only consequence of the omission; while according to the appellant in A. S. No. 292 of 1961 the court can enquire into the nature of the alienations effected by the debtor before filing the petition under S.15. The two points are connected and can be considered together.
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