JUDGMENT
Shambu Prasad Singh, J.
1. The
question of law which arises for decision in this appeal by the plaintiff is whether an official receiver appointed in an insolvency case can alienate privately the shares of the sons of the insolvents, for making payments to the creditors of the proved debts incurred by insolvents for legal necessities and which are not tainted with immorality or illegality after a decree for partition has been passed in favour of the sons in a suit between them and the insolvents. No oral evidence was adduced by either of the parties in the court below and no other question of fact or law has to be decided in this appeal.
2. The facts of the case, which are not in dispute, may briefly be stated. There was an Insolvency Case, No. 4 of 1952 in the court of the District Judge, Darbhanga, for declaring defendant second party Sitaram Sah, Baijnath Prasad, Banarsi Prasad, Kashinath Prasad and one Bishwanath Prasad as insolvents. During the pendency of that case the defendants first party, i. e. Dharamnath Prasad son of Baijnath Prasad, Amarnath
Prasad son of Sitaram, Chandra Sekbar Prasad son of Banarsi Prasad and Ashok Kumar, Sashi Kumar and Nirmal Kumar sons of Kashinath Prasad instituted Partition Suit No. 136 of 1953 in the court of Subordinate Judge of Darbhanga for partition of the family properties. Defendants second party of this suit were defendants in the said partition suit. A preliminary decree was passed on 10th of June, 1954. Defendants second party declared insolvent in the said Insolvency Case No. 4 of 1952 by the District Judge of Darbhanga by his order dated 12th of April 1956 and the plaintiff of the present suit was appointed official receiver. On 8th of May, 1956 defendants, first party filed an application before the Subordinate Judge, Darbhanga for making the plaintiff of the present suit a party to the partition suit. The application was allowed on the very date and the official receiver was impleaded as a party to the final decree proceeding which was pending before the subordinate Judge.
The pleader commissioner submitted his report in May, 1958 and it was confirmed by the Subordinate Judge by his order dated 12th of June, 1958 but the final decree could not be sealed and signed before 25th of January 1960. On 27th of March, 1961 the official receiver instituted the present suit alleging inter alia in the plaint that the allotment of separate properties to the defendants first party stood as an impediment to the sale of their share and he was left with no other choice but to institute the suit for a declaration that the debts of the insolvency petition which were proved before the District Judge. Darbhanga in the said insolvency case, were debts of the joint family of the defendants first and second parties and were incurred for legal necessities or in any view of the case they were debts not tainted with immorality or illegality and as such the shares of the defendants first party were liable for sale in satisfaction of the said debts
3. In their written statement major defendants nos. 1 and 2 who contested the suit, denied that the debts were of the joint family or were incurred for legal necessities 01 were not tainted with anv immorality or illegality They further challenged the plaintiffs right to sell the properties after the decree in the partition suit and pleaded that the suit was barred by res judicata and hit bv Section 42 of the Specific Relief Act.
4. The issue whether the suit was hit by Section 42 of the Specific Relief Act was not pressed and, therefore, answered in favour of the plaintiff by the learned Subordinate Judge. He further held that as the official receiver was made a party to the partition suit after the passing of the preliminary decree the present suit was not barred by res judicata and that the debts incurred by defendants first party were not taken for immoral or illegal purposes.
On the main question, however, he found in favour of the defendants first party that as, after the decision in the partition suit, the fathers themselves, could not alienate the shares of the sons, the plaintiff official receiver also could not alienate shares and dismissed the suit. Hence the appeal.
5. Mr. Ramnandan Sahai Sinha, appearing for the plaintiff-appellant, contended that the sons are liable to pay the pre-partition debts of their fathers even after partition unless there was an arrangement for payment of debts at the time when the partition took place and, therefore, the plaintiff was entitled to the declaration prayed for. In support of this contention he placed reliance on the decision of the Supreme Court in Panna Lal v. Mt. Naraini, AIR 1952 SC 170. That, was a case where a creditor wanted to proceed against the sons in execution of a money decree in his favour against the father. No question of the powers of an official receiver appointed in an insolvency case arose for decision before their Lordships. The correctness of the observations of their Lordships could not be challenged or was challenged by learned counsel for the respondents. He merely submitted that observations of their Lordships that the sons are liable to pay the pre-partition debts of the father even after partition unless there was an arrangement for payment of these debts at the time of the partition itself, was not applicable to the facts of the present case and relied on another observation of their Lordships in the same judgment that if the son is bound under Hindu Law to pay the father’s debt from any ancestral property in his hands, the remedy of the decree-holder against such property lies in the execution proceedings and not by way of a separate suit. The decision in Pannalal’s case, therefore, is of no assistance to the appellant.
6. The question with which we are concerned in this appeal arose for decision before a Full Bench of Madras High Court in the matter of Balusami Ayyar, ILR 51 Mad 417 = (AIR 1928 Mad 735) (FB) and the majority of the Full Bench answered the question in favour of the sons. In the case of Sat Narain v. Sri Kishen Das. AIR 1936 PC 277 it was observed:
“The father’s power of sale for his debts exists only so long as the joint family property is undivided, and the capacity of the Official Assignee must be similarly limited.”
There was divergence of opinion so far High Courts in India were concerned and their Lordships of the Judicial Committee further observed that the decision in ILR 51 Mad 417= (AIR 1928 Mad 735) (FB) (referred to above) was correct and the decision in the case of Sita Ram v. Beni Prasad reported in ILR 47 All 263 = (AIR 1925 All 221) to the contrary effect was incorrect. The cases before the Madras High
Court and the Privy Council arose out of proceedings under Presidency Towns Insolvency Acts, but as it will be shown presently the provisions of Section 55(2) of the Presidency Towns Insolvency Act and Section 28A of the Provincial Insolvency Act are similar and no distinction can possibly be made on the ground that the cases before the Madras High Court and the Privy Council were under different Act. The appellants before the Judicial Committee were sons of one Sri Kishen Das who had been adjudicated insolvent under the Presidency Towns Insolvency Act. A creditor of Sri Kishen Das instituted a suit for recovery of his mortgage debt making Sri Kishen Das, his sons and the official assignee appointed by court in the insolvency proceedings parties to it. The sons also instituted a suit for partition against Sri Kishen Das. The partition suit was dismissed by the trial court but on appeal the Chief Court of Punjab varied the decree declaring the sons entitled to a preliminary decree for partition. It further directed that division should only be made after provision for satisfaction of the remainder of the insolvent’s antecedent debts in so far as the sons failed to show that they were immoral or illegal
Before the Judicial Committee the sons challenged this direction for provision for satisfaction of the antecedent debts. Their Lordships dismissed the appeal and made the aforesaid observations. In re, Balusami Ayyar, ILR 51 Mad 417= (AIR 1928 Mad 735) (FB) the father was adjudicated insolvent on 2nd of December, 1919 and in April, 1920 the official assignee appointed in the insolvency proceeding took out a notice of motion for an order that the interest of the minor sons in the family should be vested in him. It was ultimately held on that motion that the interest of the minor sons in the property did not vest in the official assignee but he could alienate the minor sons’ interest in the joint property for the purpose of paying the insolvent’s debt unless the debts were incurred for illegal or immoral purposes. The Official assignee was also declared to be entitled to take possession of the joint property but the question to what extent he could sell the interest of the minors in order to discharge their father’s debts, was left undecided. In the year 1922 the sons instituted a suit for partitior, of their share as against the insolvent father and the question which arose for decision before the Full Bench was what was the effect of the filing of the suit by the sons of the rights of the official assignee.
It was held by Ramesam and Madhavan Nayar JJ. Phillips, J dissenting that the official assigned could alienate the sons’ interest in the property qua father only and inasmuch as the insolvent father himself had lost the right to alienate the interest of the sons after the institution of
the partition suit because it constituted a separation of status in the family, the official assignee too could no longer do it. This decision which was approved by the Privy Council in Sat Narain’s case fully supports the decree of the court below dismissing the plaintiff’s suit.
7. Section 55(2) of the Presidency Towns Insolvency Act provides that the property of the insolvent divisible amongst his creditors and in that Act referred to as the property of the insolvent, shall comprise
(a) all such property belonging to or vested in the insolvent at the commencement of the insolvency proceedings or acquired by or devolving upon him before his discharge,
(b) 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, and
(c) goods in the possession, order or disposition of the insolvent in his trade or business at the commencement of the proceedings.
Section 17 of the same Act inter alia lays down that on the making of an order of adjudication the property of the insolvent wherever situate shall vest in the official assignee and shall become divisible among his creditors. Similarly Section 28(2) of the Provincial Insolvency Act provides that on the making of an order of adjudication the whole of the property of the insolvent shall vest in the court or in a receiver as thereinafter provided and shall become divisible among the creditors. There was no provision in the Provincial Insolvency Act similar to Section 52(2) (b) of the Presidency Towns Insolvency Act declaring that the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of propertv as might have been exercised by the insolvent for his own benefit at the commencement of his insolvency or before his discharge, shall also be considered as a property of the insolvent divisible among his creditors. By Provincial Insolvency Amendment Act, 1948 (XXV of 1948) a new Section 28A was added to the Provincial Insolvency Act. The main part of this Section runs as follows:
“The property of the insolvent shall comprise and shall always be deemed to have been comprised also the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of propertv as might have been exercised by the insolvent for his own benefit at the commencement of his insolvency or before his discharge.”
A comparison of Section 28A of the Provincial Insolvency Act and Section 52(21(b) of the Presidency Towns Insolvency Act
will show that language of the two is similar except that Section 28A contains some words which make it retrospective in its application. The language of Section 17 of the Presidency Towns Insolvency Act and Section 28(2) of the Provincial Insolvency Act also being almost similar, the ratio de-cidendi of the decision of the Madras Full Bench ILR 51 Mad 417= (AIR 1928 Mad 735) (FB) will apply to cases under the Provincial Insolvency Act as well. Learned counsel for the appellant placed before us decision of the Supreme Court in Cheruvu Nageswaraswami v. Vadrevu Viswasundara Rao, AIR 1953 SC 370, but that decision does not appear to have taken a view contrary to one taken by the Madras Full Bench. It has been held by the Supreme Court in that case that under the new Section 28A of the Provincial Insolvency Act the powers of a father under the Mitakshara Law to alienate the joint family property including the interest of his sons in the same for discharge of an antecedent debt not contracted for illegal or immoral purposes, vest in the receiver on the adjudication of the father as an insolvent.
Their Lordships in support of this decision relied on the decision of the Judicial Committee in Sat Narain’s case, AIR 1936 PC 277 referred to above and purported to lay down that after the amendment of the Provincial Insolvency Act there was no difference, in cases arising under the two Acts, in this respect. The question that the father’s power of sale for his debts exists only so long as the joint family property is undivided and the capacity of the official assignee must be similarly limited, did not arise for decision in the Supreme Court case and there is nothing in it to indicate that their Lordships of the Supreme Court in any manner doubted the correctness of the observation of their Lordships of the Judicial Committee in Sat Narain’s case, AIR 1936 PC 277 or of the decision of the Madras Full Bench ILR 51 Mad 417= (AIR 1928 Mad 735) (FB) which was specially approved by their Lordships of the Judicial Committee.
8. It could not be disputed at the Bar that the appellant, by the relief sought for. wanted a declaration to alienate the properties allotted to the shares of defendants first party on partition privately qua father and it is not a suit for obtaining a decree against the sons for the Pre-partition debts of the father. No amount of the debts was mentioned in the plaint nor was proper court-fee paid for such a decree. It cannot be said dismissal of the suit will in any way cause injustice to the creditors. As was observed by Ramesam. J., ILR 51 Mad 417= (AIR 1928 Mad 735) (FBI not all but only one of the several remedies opened to the creditors or the official- assignee qua creditors is extinguished. The official assignee or the official receiver (as is the case before us) as representing creditors or associating himself with them may file suits against the sons for realisation of debts, obtain decrees and sell the son’s share also at auction sale in case of non-payment or he may obtain an order for sale of the shares of the sons from the Insolvency Court in a garnishee proceeding provided the sons fill the character of garnishees.
9. In the case of Chatrati Sriramamurthi v. Official Receiver, Krishna, AIR 1957 Andh Pra 692, Viswanatha Sastri. J. has held that the father’s power of disposition over ancestral property including his sons’ share for the discharge of his untainted debts, vests in the official receiver under Section 28 of the Provincial Insolvency Act on the insolvency of the father and can be exercised by him so long as there was no partition between the father and son bui on a division between them the father’s power and consequentially the power of the official receiver to sell the shares of the sons would come to an end. His Lordship did consider the decision of the Supreme Court in Pannalal’s case, AIR 1952 SC 170 referred to above before coming to the aforesaid decision. What vests in the official receiver is the power of the father to sell the son’s interest and not the share of the son itself in the property. It was so held in the cases of Thadi Murali Mohan Reddi v. Chinta Brahmayya, AIR 1942 Mad 327 and Dharamnath Prasad v. Surji Devi, AIR 1954 Pat 459. Imam, C. J. with whom Sahai, J. agreed in Dharamnath’s case, AIR 1954 Pat 459 observed as follows :–
“It seems to me, therefore, clear that even after adjudication of insolvency it is the property of the insolvent which vests in the receiver, and in the case of a Hindu joint family the whole of the property of the joint family does not vest in the receiver. In an undivided Hindu family governed by the Mitakshara law, the property of the family being joint, no member of the family can predicate which portion of it belongs to him. It is only on partition that a member of such a family is in a position to say as to which part of the joint family property belongs to him. I think it must be now taken as clear, in view of the Privy Council decision in AIR 1925 PC 18 and the Full Bench decision of the Madras High Court in ‘AIR 1942 Mad 682’, that on the insolvency of a member of such a family the joint family property does not vest in the Court or the receiver. Whatever power the receiver may exercise by virtue of the provisions of Section 28A of the Act and Section 52 of the Presidency Towns Insolvency Act to have tha joint family properties sold to meet debts binding on the family, the joint family property itself does not vest in the receiver.”
Their Lordships took into consideration the definition of “property” which in both the Provincial Insolvency and Presidency Towns Insolvency Acts has been defined as follows:–
“Property includes any property over which or the profits of which any person has a disposing power which he may exercise for his own benefit.”
10. Learned Counsel for the appellant also relied on the following decisions:–
Tejmal Marwari v. (Firm) Jokiram Surajmal, AIR 1936 Pat 112, Mutha Subbarao v. The Official Receiver, West Godawari at Eluru, AIR 1965 Andh Pra 52; Jamshedji Framji Havevalla v. Pestonji Cawasii Gonda, AIR 1932 Bom 511; Ram Rattan v. Fazal Haq, AIR 1939 Lah 346; Shyam Kali Bai v. R, N. Verma, AIR 1956 Nag 57 and Narayanam Narasimhachryulu v. Pasupuleti Sambaiah, AIR 1960 Andh Pra 131.
None of these are relevant to question under consideration.
11. For the foregoing reasons, there appears no merit in the appeal and it is accordingly dismissed with costs. However, in view of the fact that no question of fact was involved in the appeal and the hearing did not take long, the contesting respondent will be entitled to only Rs. 64 as consolidated hearing fee.
Anwar Ahmed, J.
12. I agree and have nothing to add.