M S V V THAYANAYAGI ACHI Vs. C T C T CHIDAMBARAM CHETTIAR

JUDGEMENT

(1.) THE appellant in these appeals is the wife of one Venkatachalam Chettiar, a businessman belonging to the Nattukotti Chetti community, who had an ancestral family money-lending business and considerable Properties in Burma, besides other properties in this country. In accordance with the custom of the community moneys by way of Stridhana and Seemurai were presented to the appellant by her father at the time of her marriage and those moneys were Entrusted to her father in-law for the purpose of investment and improvement of his business at Burma. It is stated that moneys entrusted came to Rs. 16,575-0-3 oil 13th April 1940 and that the amount due at present would be very much above Rs. 20. 000. It was held by, this Court in several cases that moneys presented to a bride on the occasion of marriage, In accordance with the custom of the community, which is handed over to the husband's people for the purpose of investment is held in trust by the person who receives the moneys on her behalf, the trustee having a power to invest the trust monies in his own business.

(2.) IN the year 1943, the appellant's son filed. O. S. No. 48 of 1943 on the file of the Sub-Court Devakottai, against his father and others for a partition of the joint family properties in India. That suit was evidently conceived to get an adjudication as to the binding nature of the debts, which had by then been contracted by venkatachalam Chettiar. The appellant, inpleaded as the third defendant in the suit filed a written statement claiming that her stridhanam amount, having been invested in the family business, should be paid or alternatively for a charge therefor on the properties, which were the subject matter of the partition suit. The court held that the debts were binding on the son. It also negatived the claim of the appellant to a charge on the Indian properties for the amount due to her in respect, of the entrustment made, with Venkatachalam Chettiar's father at the time of the partition. Appeals were filed both by the appellant and her Son to this court against the decision of the Sub-ordinate Judge, but without success. A. S. No. 215 of l944 was the appeal filed by the appellant. Patanjali Sastri and shahabuddin, JJ. , who disposed of the appeal held that it had been amply proved that the moneys presented to the appellant by her father on, the occasion of her marriage were invested in the family business of her husband in Burma, as was usual with Nattukottial Chetties and that the sum came to Rs. 16575-10-3 on 134-1940. The learned Judges however rejected her claim to a charge on the Indian properties on the ground that it had not been established that, We stridhanam moneys, or any portion thereof, contributed to the acquisition of the suit properties.

(3.) THE judgment of this Court was delivered on 18-12-1945. In the meanwhile, certain creditors of Venkatachalam Chettiar applied to the Sub Court at Devakattai to adjudicate him an insolvent in I. P. No. 1 of 1945. An order, of adjudication was made on 27-12-1945. When the Official Receiver sought to bring the insolvent's properties to sale, a composition arrangement wall entered into between the insolvent and his creditors. To that arrangement the appellant and her son were also made parties. Under the arrangement the creditors of the insolvent agreed to receive, only 40 per cent of their claim and to realise that 40 per cent from the properties of the insolvent and his son in Burma, in the first instance. The composition scheme was approved and the adjudication was annulled on 9-91946. The appellant who was also a party to the Composition, and who was entitled to a preferential payment from out of the assets in Rangoon, agreed to receive 40 per cent of her stridhanam amount, which by then came to Rs. 20,000, along with other creditors. During the following year, a sum of Rs. 32,000, was realised from the Rangoon properties, but the expenses for the collection took away Rs. 22,000/ -. The balance of Rs. 10,000/- was distributed to the various creditors. Venkatachalam Chettiar had still to pay to the tune of Rs. 77,000/- even as per the composition deed. It was then that formidable difficulties came in the way of realisation of the Burma assets. The land legislation and other enactments in that country, the occupation by rebels of several portion of the property and the communist propagonda rendered it impossible for the trustees of whom Venkatachalam Chettiar was himself one, to collect the outstandings or realise their dues. The creditors thereupon applied to the Court to set aside the annulment and readjudge venkatachalam Chettiar as insolvent. The appellant also filed a petition claiming that she would he entitled to recover her stridhanam moneys from out of the assets of the insolvent as she had the first charge in respect of the same; she prayed for appropriate reliefs therefor before the properties were brought to sale. The Subordinate Judge of Devakattai set aside the composition and re-adjudged venkatachalam Chettiar as insolvent. He negatived the claim of the appellant on the, short ground that as there was no imminent danger of the, properties being sold, no directions in regard to the execution of the decree can be given. Appeals were filed in respect of both tile riders to the District Judge of ramanathapuram, who affirmed the adjudication. But the learned District Judge held that the appellant would be entitled to a charge on the Indian assets to the extent of Rs. 10,000, which represented the Burmese assets for which she had a charge and which went, to pay off the creditors of the insolvent. On further appeal to this Court against the latter part of the order Basheer Ahmad Sayeed, J. , set aside the declaration of the lower Court that the appellant would be entitled to recover a sum of Rs. 10,000/- with a charge therefor on the Indian assets of the insolvent. The learned Judge, however, gave a certificate under clause 15 of the letters Patent, which has resulted in the present appeal.