M. Thirumaleshwara Bhatta vs Balike Govinda Bhatta and Others

Satyanarayana Rao, J.—The second defendant is the appellant in this appeal. The first plaintiff is the son of the first defendant. They were

members of a joint undivided Hindu family. On the 27th of April 1938 (Ex. B. 25) the father and the son executed a trust deed in respect of their

family properties in favour of their family deity, Shri Sankaranarayana Devaru constituting themselves trustees on behalf of the God. Thereupon the

second defendant who was a creditor of the first defendant filed I. P. No. 11 of 1938, Sub-Court, South Kanara on the 26th of July 1938, Ex. B.

26 to adjudicate the first defendant an insolvent. The deed of trust was relied on as constituting an act of insolvency.

On the 15th of November 1939, the first defendant was adjudicated an insolvent, (Ex. B. 27). The Official Receiver in whom the property became

vested then filed R.I.A. No. 93 of 1940 to set aside the deed of trust under Sections 4, 5, 53 and 54 of the Provincial Insolvency Act on the 10th

January 1940, Ex. B. 28. The God was impleaded as a respondent represented by the first plaintiff as its trustee. The respondent was ex parte in

that application and after examining one witness the trust deed was set aside as having been brought into existence to defraud the creditors of the

first defendant. The order of the Court is dated 28th January 1941. In April 1941 the Official Receiver took steps to bring the properties to sale.

The sale was fixed on 28th May 1941 and was actually held on 31st of May 1951 in which the second defendant became the purchaser for a sum

of Rs. 2850 subject to a prior mortgage. On the 2nd of July 1941 the Official Receiver executed the sale deed, Ex. B. 39 in favour of the second

defendant. On 13th August 1941 the first plaintiff surrendered the entire property to the second defendant and the second defendant came into

possession of the property.

On the 14th of October 1943 the present suit was filed by the first plaintiff claiming a half share in the suit properties as the trust deed was set

aside by the Insolvency Court, The second defendant resisted the suit. The Official Receiver was impleaded as the third defendant. The second

defendant claimed that by reason of his purchase he was entitled not only to the share of the insolvent but also to the share of the son and that in

any event the trust deed was valid at least between the first plaintiff and the second plaintiff to the extent of half share and that the first plaintiff was

not entitled to any relief. On this objection the second plaintiff was impleaded as a party. The learned Subordinate Judge held that the purchase by

the second defendant was effective only to vest the father''s ''share'' in him and that he was not entitled to the son''s share. A decree for partition

was granted in favour of the first plaintiff. The second defendant now appeals to this court.

There are two points which arise for consideration in this appeal. The first point is whether the sale by the Official Receiver conveyed to the

second defendant not only the share of the father but also the share of the son. At the time the suit was instituted in the lower court the law was as

laid down by the Full Bench of this Court in ''Rama Sastrulu v. Balakrishnarao'', ILR (1943) Mad. 83 that the insolvency of the father would not

vest in the Official Receiver the power of the father to sell the son''s share for the discharge of the debts binding on the son either on the ground of

necessity or on the ground of pious obligation. The law has since been altered by the Amending Act which has restored the position to what it was

before the decision of the Full Bench. It must, therefore, be taken that the law is that on adjudication of the father as an insolvent not only the share

of the father but also the power of the father to dispose of the share of the son would vest in the Official Receiver u/s 28 of the Provincial

Insolvency Act. The question that has to be decided in this case is not whether the power had vested in the Official Receiver but whether the

Official Receiver in fact purported to exercise that power and intended to convey the share of the son as well to the purchaser. This has to be

gathered from the proclamation of sale and from the sale deed actually executed by the Official Receiver.

In Ex. B. 5 the sale list dated 28th May 1941 it is said in the preamble that what was purported to be sold was the entire right possessed by the

said insolvent in the Immovable properties described in the schedule. The sale was. therefore, confined to the right of the insolvent in the property

and did not extend to the share of the. son. No doubt in the schedule the entire property was described. In the sale deed, Ex. B. 39 it is definitely

stated that what was being conveyed was the property belonging to the insolvent under ''muli mula geni and janmi'' right of which the second

defendant became the auction purchaser. Reference, no doubt, was made to the cancellation of the trust deed in the insolvency proceedings but

that would not affect the question if in fact what the Official Receiver intended to sell and did sell was only the insolvent''s right in the property. If he

had conveyed not merely the insolvent''s right but also the right of the son it could very well be presumed that he purported to exercise the right to

sell the right of the father to sell the son''s share as well. But in the absence of any specific language in the deed conveying the interest of the son in

the property or in the absence of any other indication in the deed from which the intention to convey the larger estate could be gathered it is

impossible to uphold the contention urged on behalf of the second defendant by Mr. Krishna Rao that this deed vested in the second defendant not

merely the share of the father but also the share of the son as well.

In my opinion the mere fact that the order of the adjudication vested in the Official Receiver not only the share of the father but also the power of

disposition possessed by the father for the son''s share would rot by itself convey to the auction purchaser the share of the son unless there is

indication in the document or in the sale proceedings that the Official Receiver in fact purported to exercise that power of sale and did in fact sell

the son''s share as well. In these circumstances in my opinion the view taken by the lower court that the son''s share did not vest in the second

defendant by virtue of the sale is correct.

There is also another objection which in my opinion, is also well founded though it was not definitely taken on behalf of the plaintiff in the plaint.

On the 19th of May 1941, that is, prior to the date of sale the first plaintiff issued a notice to the first defendant demanding partition of the

property. This would bring about division in status and prevent the Official Receiver from exercising the power of sale. The power of sale of the

father is dependent upon the existence of coparcenary and if that coparcenary is terminated by division in status, the power ceases to exist, This

notice no doubt, was produced by the first defendant when he was in the witness box but I find absolutely no cross-examination on the point

suggesting that it was ante-dated and brought into existence collusively which is the contention now urged on behalf of the appellant. It is a

registered notice issued on behalf of the first plaintiff on the 13th of May 1941 and received by the father. The learned Subordinate Judge

notwithstanding the fact that this question was not specifically raised in the pleadings accepted the notice as genuine and I see no reason to differ

from his conclusion. This is an additional reason for holding that the share of the son did not vest and could not vest by reason of the sale by the

Official Receiver in the second defendant. The view taken by the lower Court on both the points is correct and the appeal fails and is dismissed

with the costs of the first defendant.