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2021 DIGILAW 290 (MAD)

A. Ganesan v. S. Rajamanickam

2021-01-25

S.M.SUBRAMANIAM

body2021
JUDGMENT : 1. The Civil Miscellaneous Second Appeal is filed against the Fair and Decreetal order passed in C.M.A.No.20 of 2013 dated 05.11.2015 on the file of the learned Principal District Judge, Salem confirming the fair and decreetal order passed in I.P.No.4/2006 dated 30.06.2011 on the file of the learned Sub-oridnate Judge, Sankagiri. 2. The question of law raised by the appellant is that whether the Courts below is right in coming to the conclusion that the appellant is entitled for decree of Insolvency against the first respondent; whether the Courts below is right in rejecting the claim of the appellant, when the 1st respondent had admitted the liability under Section 10 of the Insolvency Act? 3. Both the substantial questions of law are with reference to the factual aspects dealt with by the trial Court and the first Appellate Court. The First Appellate Court in order dated 05.11.2015 categorically enumerated that the respondent is having interest over the joint family property. It was an admitted factual aspect by the parties that the respondent was having a share in the joint family property. The findings in this regard by the First Appellate Court reads as under: 7. The respondents, more particularly, the second and third respondents, responded to this argument and submitted: That the property in question was jointly held by the first respondent along with his mother and grand mother. Indeed on 27.06.2005, about ten months prior to Ext.R-2 sale, a registered sale agreement was entered into under Ext:R-1 agreement. The recital in the documents show that the property in question was purchased by the first respondent's father Sekar. He died leaving behind his mother Pachiammal, wife Kannammal and the first respondent as Class I heirs as per Hindu Succession Act. They have sold the property jointly to second and third respondents under Ext:R-2 sale deed dated 12.04.2006. It is not just sufficient for a creditor to prove alienation by a debtor but he has also got to prove that it was intended to defeat and delay his creditors. This element the present petitioner was not able to establish. He relied on the authorities in R. Venkatesh vs. Kaliammal [ 2012 (6) CTC 543 ] and Jaisankar vs. Ramadevi [ 2010 (2) CTC 565 ]. 8. There is merit in the submissions of respondent's counsel. This element the present petitioner was not able to establish. He relied on the authorities in R. Venkatesh vs. Kaliammal [ 2012 (6) CTC 543 ] and Jaisankar vs. Ramadevi [ 2010 (2) CTC 565 ]. 8. There is merit in the submissions of respondent's counsel. First, the property is proved to be not an exclusive piece of property of the first respondent but a joint property of which he is merely a sharer. Therefore, the decision to sell the property can be entirely traceable to his free volition. If that is so, it is difficult to hold that he had decided to sell the property to defeat or delay his creditor. Secondly, the fact that the second respondent (R. W. 1) happened to be a creditor of the first respondent does not ipso facto imply that he was fraudulently preferred in effecting the sale. The reason is same as the one stated the above: That the first respondent did not have exclusive right or authority or freedom to decide on the sale of the property. In this regard, a mere possibility that the first respondent occupies a position to influence his mother and grandmother to sell the property is not adequate. After all 2/3rd shares belong to them and their unlawful right over the property needs to be recognised. 4. Perusal of the findings of the First Appellate Court reveals that the first respondent is having a right over the joint family property and the said factum was not disputed by the appellant. This being the factum, declaration of insolvency cannot be granted in favour of the appellant, and the trial Court and the First Appellate Court rightly decided the issues, with reference to the evidences and the deposition of the witnesses. Therefore, this Court is of the considered opinion that there is no infirmity or perversity in respect of the findings made and the substantial question of law are also with reference to the facts and circumstances. Under these circumstances, the Fair and Decreetal Order dated 05.11.2015 passed in C.M.A.No.20 of 2013 stands confirmed and consequently, Civil Miscellaneous Second . No costs.