Tnanikachalam and Another vs Official Receiver, Chengalpattu and Another

Bellie, J.—The plaintiffs are the appellants in this second appeal.

It appears that one Munusami Mudaliar, Kandasami Mudaliar and Balasundara Mudaliar. All the said three brothers were, on an application by

a creditor, adjudged insolvents for the debts alleged to have been contracted for the benefit of the joint family by the joint family manager

Kannappa Mudaliar. Subsequently, the joint family properties were brought to sale by the Official Receiver and one of the items of the properties

was sold and purchased by the 7th defendant in the suit. The two plaintiffs herein are the sons of Kandasami Mudaliar. It appears they filed O.S.

301 of 1970 on the file of the district Munsiff Court, Kancheepuram for declaration of the title and for delivery of possession of the suit properties

on the allegation that the properties belonged to their grandfather Munuswami Mudaliar and he had executed an will in their flavor. They also filed

another suit O.S. 741 of 1971 on the file of the said Court for declaration of title and for an injunction restraining the defendants therein from

interfering the defendants therein from interfering with their possession and enjoyment, on the same ground that their grandfather, who was the

owner of the properties, executed a will in their flavour. Both the suits were tried together and they were dismissed on the finding that the suit

properties were the joint family properties and not self-acquired properties of Munuswami Mudaliar. Thereupon, the plaintiffs filed the present suit

for partition of the suit properties in view of the finding in the judgment rendered in the above two suits that the properties were joint properties.

They have claimed 7/36 shares. The trial Court dismissed the suit on the ground that the suit is barred by res judicata in view of the decisions in the

said earlier two suits. The plaintiffs filed an appeal and the lower appellate Court disagreed with the trial Court that the suit was barred by res

judicata, but, however, it held that in the insolvency proceedings the plaintiffs'' shares, they being the sons of one of the insolvents, namely,

Kandasami Mudaliar, also vested in the Official Receiver, and therefore, they have no right to claim partition. In the result, the appeal was

dismissed. It is against this judgment of the lower appellate Court this second appeal has been filed by the plaintiffs.

Learned counsel Mr. V. Srinivasan, appearing for the appellants-plaintiffs, contends that what is vested in the Official Receiver is not the shares

of the plaintiffs, who are the sons of the insolvent but only the right of the insolvent father to sell the shares of the plaintiffs sons.

After hearing the arguments of the learned counsel, I am inclined to agree with him. Under, S. 28(2) of the Provincial Insolvency Act, 1920 on a

person being adjudged as insolvent, the whole of his property shall vest in the Official Receiver. Therefore, whatever right the insolvents had in the

joint family consisting of the three insolvent brothers vested in the Official Receiver. Now the question is what has happened with regard to the

shares of the plaintiffs'' sons in the property of the joint family. According to the first appellant Court as seen above the father having been

adjudicated as insolvent, along with his share in the joint family, his sons'' share also got vested in the Official Receiver. As to this view of the

learned appellate Judge, he has not given any exact reason. Be that as it may, on the principle of pious obligations, the son''s share of the property

can be sold by the father to discharge a debt contracted by him for the benefit of the family. Thus there is a right of the father to sell the son''s share

in the joint family properties. Therefore, there is no chance of the sons'' shares in the joint family property itself vesting in the Official Receiver.

What that can vest in the Official Receiver is only the father''s right to sell the, son''s share. This appears to be quite clear on a reading of S. 28-A

along with the above said S. 28(2). Section 28-A reads thus-

28-A. Insolvent''s property to comprise certain capacity- The property of the insolvent shall comprise and shall have always be deemed to have

comprised also the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have

been exercised by the insolvent for his own benefit at the commencement of his insolvency or before his discharge:

Provided, that nothing in this section shall affect any sale, mortgage or other transfer of property of the insolvent by a Court or Receiver or the

Collector acting under S. 60 made before the commencement of Provincial Insolvency (Amendment) Act XXV of 1948, which has been the

subject of a final decision by a competent Court:

Provided further that the property of the insolvent shall not be deemed by reason of anything contained in this section to comprise his capacity

referred to in this section in respect of any such sale, mortgage or other transfer of property made in the State of Madras after the 28th day of July,

1942, and before the commencement of the Provincial Insolvency Act (Amendment) Act XXV of 1948.

Therefore it is clear that the father''s right to sell the sons'' share in the joint family property alone has vested in the Official Receiver and not the

shares of the sons as such. That means, until the time the Official Receiver has exercised that right to sell, the sons will be entitled to their shares.

Now in our case one item of the property in which the sons have a share, appears to have been sold by the 6th defendant-Official Receiver to the

7th defendant and that item is the first item in the plaint schedule properties. With regard to the other items, the Official Receiver has not exercised

the father''s right to sell, vested in him. Therefore in one item sold by the Official receiver the plaintiffs sons have lost their right. With regard to the

other items in the plaint schedule their rights still subsist and therefore they can claim for partition.

Accordingly excepting item No. 1, with regard to other suit properties there will be a decree for partition of the plaintiffs'' 7/36th share. This

second appeal is thus partly allowed. There will be no order as to costs.

Appeal partly allowed.