VENKATARAMA NAICKER Vs. RAMASAMI NAICKER

JUDGEMENT

(1.) This is a revision petition under Section 75 of the Provincial insolvency Act, by one Venkatarama Naicker, hereinafter called the opposing creditor, against the judgment & decree of the Dist. J. of Tirunelveli in C.M.A. No. 5 of 1945, dated 12-3-1946, allowing the respondents hereinafter called the proving creditors, to prove certain debts of theirs holding them to be recoverable from the estate of the insolvent, Narayanappa Naicker, to the extent held to be true & binding. The memorandum of cross-objections is against the debts not allowed to be proved as they were held to be not true & binding on the insolvent.

(2.) The facts are briefly these: Narayanappa Naicker, the insolvent, was adjudged insolvent in I. P. No. 40 of 1923 on the file of the District Court, Tirunelveli. He was the lather of one Venkatasami Naicker who predeceased him & was said to have been the manager of the Joint family. Venkatasami Naicker had also several children who were minors at the time of the I. P. The I. P. had been filed by the opposing creditor & others for adjudicating Venkatasami Naicker, Narayanappa Naicker & Venkatasami's minor children, all insolvents on the ground that they had executed a mortgage deed, Ex. A in 1923, in favour of the proving creditors, in fraudulent preference under Section 54 of the Provincial Insolvency Act, & also as void, regarding part of the consideration recited therein, under Section 53, Provincial Insolvency Act. The opposing creditor had, in his I. P., relied on certain debts due to him contracted by Narayanappa, Venkatasami and Venkatasami's sons, for running a trade in cotton & a ginning factory. There were two aspects of this trade, one being run by Venkatasami Naicker, Narayanappa Naicker & their family members alone, & the other by the family members in parthership with one Appadurai Ayyappa Naicker. Venkatasami died during the pendency of the I. P. By his order dated 10-121923, the Dist. J. Tirunelveli, adjudicated Narayanappa & Venkatasami's minor sons as insolvents. Narayanappa & the minors filed an appeal to this court. On 18-11-1927, Phillips & Madhavan Nair JJ. delivered their judgment (Ex. SS) in the appeal. As the wording of the judgment is somewhat important for other purposes, & as the Judgment itself is short, it is extracted below:

(3.) It will be seen that the learned Judges held fn that order that the cotton trade & the ginning factory were carried on as a family trade by Venkatasami, Narayanappa & other members of the family, & that Narayanappa, the first appellant, used to assist in the business as well as look after the family lands, & that the debts of the creditors who filed the I. P. were incurred for such family trade, though they stood in the name of Venkatasami, as he was the managing member of the family, all the family properties & the family house being mortgaged subsequently by all family members to borrow money. Of course, the adjudication of the minor sons of Venkatasamt was set aside as they could not be held to be personally liable for the debts, but only liable to pay them out of the joint family debts, for which they were, of course, not personally liable.