RAO GOPAL RAO Vs. OFFICIAL RECEIVER WEST GODAVARI ELURU

JUDGEMENT

(1.) L.P.A.No.27 of 1960.--This appeal under clause (15) of the Letters Patent is directed against the Judgment of our learned brother, Mr. Justice Sanjeeva Row Nayudu, in A.S.A. No. 384 of 1956.

(2.) The facts which have given rise to this appeal may be briefly stated. Rao Lakshmikanta Tayaramma acquired by purchase a two-third share in the under-tenure village of Uppalapadu Padmarakhandam, and her husband, Rao Gopal Rao purchased the remaining one-third share under a deed of sale dated June 11, 1928. The total extent conveyed to Tayaramma and her husband was 1,310 acres. Gopal rao was adjudged an insolvent and his joint one-third share in the estate was sold by the Official Assignee, Madras, and was purchased by one Chelikani Ramarao. Tayaramma mortgaged her two-third share to one Kaki Somaiah. It is not in dispute that the mortgagee obtained a decree on foot of the said mortgage in O.S. No.76 of 1937 on the file of the Sub-Court, Eluru. Subsequently, the decree-holder transferred his decree in favour of Kotagiri Andalamma, sister of Tayaramma. This Andalamma obtained a deed of sale from the insolvent (sic) on March 9, 1942, of her share in the estate in discharge of the mortgage decree. While so, a creditor of Tayaramma filed I.P. No. 4 of 1942 on the file of the District Court, Eluru, for adjudicating her as an insolvent, relying on the alienation made by her in favour of Andalamma as an act of insolvency. Tayaramma (hereinafter referred to as 'the insolvent') was adjudged an insolvent on July 25, 1945, on which date, her estate vested in the Official Receiver.

(3.) The Official Receiver filed I.A. No.1079 of 1945 for setting aside the alienation in favour of Andalamma as being in fraud of creditors, and this application was allowed on August 24, 1951. It may be here noted that Andalamma died subsequent to the initiation of the insolvency proceedings and her daughters have been brought on record as her legal representatives. The Official Receiver, West Godavari, filed I.A. No.811 of 1952, under sections 53 and 54 of the Provincial Insolvency Act, for annulment of the pattas granted by Andalamma and her daughters, respondents 1 and 2, in favour of respondents 3 to 5, with respect to the properties specified in schedules ' A' to ' C ' appended to the petition, and for possession of the said properties. It was averred by the Official Receiver that the Sub-Court, Eluru, set aside the sale in favou of Andalamma in I.A. No. 1079 of 1945 on August 24, 1951. He also alleged that Andalamma and her daughters, respondents 1 and 2, brought into existence collusive and fraudulent pattas in favour of respondents 3 to 5 ; that the third respondent was granted a patta for an extent of acres 265.64 cents mentioned in schedule ' A ' ; that the 4th respondent obtained a patta in respect of acres 25.56 cents specified in schedule ' B ' and that the 5th respondent was granted a patta for 16 acres covered by schedule ' C '. Respondents 3 to 5 contested the petition on various grounds. They asserted that they had permanent rights of occupancy in the lands in question and denied that the insolvent had at any time kudiwaram rights in the lands. They also denied that the lands were the swantakamatam lands of the insolvent and that she had permanent rights of occupancy in them. They averred that the lands are admittedly situated in Uppalapadu village, which is an estate within the meaning of the Madras Estates Land Act, and that the entire village vested in the Government pursuant to the provisions of the Madras Estates (Abolition and Conversion into Ryotwari Act (XXVI of 1948) (hereinafter referred to as 'the Madras Act'), that the rights of the insolvent, if any, could be adjudicated upon in appropriate proceedings under the provisions of the Madras Act, and that the petition was therefore not maintainable.