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Sajja Jaganmohan Rao Vs. Uppalapati Babu Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1109 of 1972 and A.A.O. Nos. 464 of 1971 and 15 of 1972
Judge
Reported inAIR1975AP278
ActsProvincial Insolvency Act, 1920 - Sections 28, 28A and 52; Code of Civil Procedure (CPC), 1908 - Order 21, Rule 58; Hindu Law
AppellantSajja Jaganmohan Rao
RespondentUppalapati Babu Rao and ors.
Appellant AdvocateChalla Seetharamayya, Adv.
Respondent AdvocateC. Appa Rao, ;Y.G. Krishna Murty and ;N. Venkatarayudu, Advs.
Excerpt:
civil - joint family property - sections 28 a, 28 and 52 of provincial insolvency act, 1920 and order 21 rule 58 of code of civil procedure, 1908 - insolvency proceedings against joint hindu family - official receiver has power over property of father and not over the share of sons - father has power to dispose of son's share so long as family status is intact - attachment of son's interest by creditor before adjudication - whether official receiver has power of dispose off son's interest - held, once property attached official receiver loses power to dispose off son's interest. - - 158/71 as well. a purchase of the debtor's property in good faith under a sale in execution is also protected against the receiver. 11. the position therefore that emerges is that while the father's share.....madhava reddy, j.1. the civil revision petition and the two civil miscellaneous appeals came up before the full bench on reference by our learned brother venkatarama sastry. j. as he was of the view that 'there is a clear and apparent conflict between the two bench decisions reported in sri raia vatsavayi venkata survanaravana jaeapathi raiu bahadur v. the official receiver, east godavari, : air1965ap451 and manne venkata narayudu v. thammineedi subbarao. : air1973ap113 in regard to the rights of the attaching decree-holders in respect of the attachments effected prior to and after the adjudication.'2. the 1st respondent in the civil revision petition obtained a decree in o. s. 5/71 on the file of the subordinate judge. vijayawada against one subbarapu jagan mohan rao, the petitioner.....
Judgment:

Madhava Reddy, J.

1. The Civil Revision Petition and the two Civil Miscellaneous Appeals came UP before the Full Bench on reference by our learned brother Venkatarama Sastry. J. as he was of the view that 'there is a clear and apparent conflict between the two Bench decisions reported in Sri Raia Vatsavayi Venkata Survanaravana Jaeapathi Raiu Bahadur v. The Official Receiver, East Godavari, : AIR1965AP451 and Manne Venkata Narayudu v. Thammineedi Subbarao. : AIR1973AP113 in regard to the rights of the attaching decree-holders in respect of the attachments effected prior to and after the adjudication.'

2. The 1st respondent in the Civil Revision Petition obtained a decree in O. S. 5/71 on the file of the Subordinate Judge. Vijayawada against one Subbarapu Jagan Mohan Rao, the petitioner herein and one Subbarapu Ponniah, the 2nd respondent Who is the father of the petitioner and filed E. P. 158/71 on 7-9-1971 on the file of the said Court for execution of the decree against both the judgment-debtors. In the said E. P. he sought attachment and sale of the properties of both the judgment-debtors. The attachment was ordered on 16-9-1971.

3. The 2nd respondent, judgment-debtor herein had earlier filed an insolvency petition O. P. 29/69 on the file of the Subordinate Judge's Court. Vijavawada on 1-11-1969 to adjudicate him as insolvent. Though the said petition was dismissed, on appeal the District Court. Krishna at Masulipatnam by its order dated 19-8-1971 in A. S. 10/71 adjudged him an insolvent.

4. The petitioner herein raised an objection to the attachment that inasmuch as his father, the 2nd respondent herein was adiudged an insolvent and the property had vested in the Official Receiver, the decree-holder had no right to bring his share in the properties to sale. The learned Subordinate Judge purporting to follow the decision in Sri Raja Vatsavayi Venkata Survanarayana Jagapathi Raiu Bahadur v. The Official Receiver. East Godavari. : AIR1965AP451 and Marine Venkata Narayudu v. Thammineedi Subbarao. : AIR1973AP113 rejected this objection by his order dated 6-3-1972. The Civil Revision Petition is filed against this order.

5. C. M. A. 464 of 1971 is by the decree-holder in O. S. 117/70 on the file of the Subordinate Judge's Court Vijaya-wada who filed E. P. 362 of 1970 to execute the decree against the four judgment-debtors two of whom are judgment-debtors in E. P. 158/71 as well. The Official Receiver in whom the properties of the insolvent, Subbarapu Punnayya, 2nd respondent, one of the judgment-debtors in O. S. 117/70 and also in O. S. 5/71 had vested, filed E. A. 1030/71 for delivery of the properties. The decree holder opposed that petition contending that the share of Sabbarapu Jaganmohnarao son of the insolvent cannot be delivered. Rejecting that contention the Court directed delivery of possession to the official Receiver by its order dated 25-9-1971. Against that order, the decree-holder who filed E. P. 362/70 preferred C. M.A. 15/72. As a consequence of the order in E. A. 1030/71, E. p. 362/70 was dismissed. Against the dismissal of the E. P. the decree-holder preferred C. M. A. 464/71.

6. The main Question therefore that arises for consideration is:

'Whether consequent upon the father being adjudged an insolvent, the son's share in the joint family properties vests in the Official Receiver and whether it could be attached by the decree holder creditor in execution of the decree against the father and the son ?

Before we proceed to consider the various aspects of these questions, it may be noticed that the insolvency petition was filed by the father on 1-11-1969. Though that petition was dismissed by the Insolvency Court on appeal, it was allowed and he was declared an insolvent. by virtue of the provisions of the Provincial Insolvency Act this order of adjudication relates back to the date of the presentation of the petition i.e., 1-11-1969. The attachment of the son's share in execution of that decree in O. S. 5/1971 was ordered on 16-9-1971 in E. P. 158/71. The Official Receiver's application for delivery of properties including the son's share was ordered on 25-9-1971.Thus the attachment of the son's share of the property in execution of the decree in O. S. 5 of 1971 was subsequent to the date of the adjudication of the 2nd judgment-debtor's father as an insolvent. The contention of the petitioner is that the attachment is not valid.

7. Under the provisions of the Provincial Insolvency Act (V of 1920) hereinafter referred to as the 'Act' if the Court does not dismiss a petition filed under Section 7 of the Act, the Court shall make an order of adjudication adjudging the debtor an insolvent. By virtue of Sub-section (2) of Section 28 of the Act on the making of such an order, the whole of the property of the insolvent vests in the Court or in a receiver as provided under Section 56, On such vesting the property of the insolvent shall Become divisible among the creditors, thereafter except as provided under the Act.

8. The Act does not define 'property' as such. The definition of 'Property' in Section 2(d) of the Act is an inclusive definition and is 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.'

Thus for the purpose of the Act not only the property of the insolvent as such, but also such other property over which or over the profits of which any insolvent had a disposing power, which he may exercise for his own benefit, is also deemed to be 'property'. By virtue of Sub-section (7) of Section 28. the order of adjudication relates back to and takes effect from, the date of the presentation of the petition. In the result all the properties of the insolvent himself (except those that are exempt under the provisions of the Act) and also all such other properties over the profits of which the insolvent had disposing power which he could exercise for his own benefit on the date of the admission of the petition vest in the insolvency Court or the receiver appointed under Section 56 of the Act. While admitting a petition or at any time thereafter before adjudication, the Court has power to appoint an interim receiver under Section 20 of the Act. Section 51 of the Act declares that where execution of a decree has issued against the property of a debtor, no person shall be entitled to the benefit of the execution against the receiver except in respect of the assets realised in the course of the execution by sale or otherwise before the date of the admission of the petition. That section, however, declares that the rights of the secured creditor in respect of the property against which the decree is executed shall not be affected. A purchase of the debtor's property in good faith under a sale in execution is also protected against the receiver. Under Section 52 of the Act, on being informed of the presentation of the petition, the Court executing a decree is bound to deliver the property to the receiver.

9. In the case of a Hindu father being adjudged insolvent, questions have often arisen in Courts as to whether the share of the father alone vested in the Receiver or the share of the sons also vested, or only the power of the father to sell the shares of the sons, vested in the Official Receiver. The son is undoubtedly liable for the father's debt if it is not incurred for an unmoral or an illegal purpose. The pious obligation of the son to discharge his father's debts exists whether the father is alive or dead.

10. The son's share also would be liable for the discharge of the father's debt even after partition. A Full Bench of the Madras High Court in Subramania v. Sabapathi. AIR 1928 Mad 657 (FB) considering the question whether 'a simple creditor of a father in a joint Hindu family is entitled to recover the debt from the shares of the sons even after a bona fide partition has taken place between the father and the sons' was answered in the affirmative. The father has also the power to effect a transfer of any of the joint family properties including the interest of the sons to discharge such debts. In view of the definition of the property contained in Section 2(d) of the Act not only the property of the insolvent father vests in the Court by virtue of Section 28(2) but inasmuch as the father has the power to alienate the son's share of the property for discharging his own debts which are not immoral or illegal, that power also vests in the Receiver upon adjudication. Considering the Question whether the share of the sons as such vests in the Official Receiver on adjudication of the father as insolvent or only the power of the father to sell his son's share vests, the Privv Council in Sat Narain v. Behari Lal. AIR 1925 PC 18 = 52 IA 22 held that only the power of the father to sell the share of the sons, passes to the Official Receiver. Following that decision, a Bench of the Madras High Court in Gopalakrishnavva v. Gopalan. AIR 1928 Mad 479 (1) where the son's share of the property was attached by a creditor held that the Official Receiver cannot exercise the power of sale with respect to such property. At the same time it held that in respect of such properties which were sold by the Official Receiver prior to the attachment of the son's share by the decree-holder, the sale was valid. The decree-holder was therefore allowed to execute his decree against the properties of the son which were attached by him in execution of the decree before the Official Receiver exercised his power of sale. The Bench was however, of the opinion that the power of the fattier to sell the share of the sons to discharge those binding debts which passes on to the Official Receiver as a conseauence of the adjudication was subject to the same qualification as it was subject to in the hands of the father. In coming to this conclusion the Division Bench of the Madras High Court followed the earlier Full Bench decision of the same Court in Bala Venkata Seetha Rama Chettiar v. Official Receiver, Tanjore. AIR 1926 Mad 994 = (ILR (1926) 49 Mad 849) (FB) and the decision in Allahabad Bank Ltd., Bareilly v. Bhag-wandas, AIR 1926 All 262.It is therefore, necessary to consider as to what are the limitations attaching to the father's power to sell the share of the sons. This position came up for consideration in several cases either in the context of a partition having been effected between the father and the son or a suit for partition being instituted or the son's share of the property in the joint family being attached by a creditor. In Official Assignee. Madras v. Ramachandra. AIR 1928 Mad 735 (FB) a Full Bench of the Madras High Court considered the effect of a suit for partition by song after the adjudication of the father as an insolvent. The Full Bench reviewing the entire case law first considered as to what were the several remedies open to an official assignee against the sons. Ramesam, J. held:

'Now the Official Assignee has got several remedies against the sons first, as representing creditors, or associating himself with them, he can file suits against the sons, obtain decrees and sell the sons' share also; and secondly, in the partition suit now pending at Madura, wherever it may be tried ultimately, at Madura or Madras, he can apply for the creditors to be made, parties, so that the finding as to the nature of the debts may bind all and ask for a decree providing for the payment of such debts as are not illegal or immoral.'

He further held :

'After the adjudication of the father as an insolvent and the vesting of his rights in the Official Assignee, the institution of a partition suit by the sons of the insolvent effects a severance of the joint family status and therefore, the power to sell their shares by private sale, of the Official Assignee, who steps into the shoes of the father, is extinguished, although the Official Assignee by proper proceedings in the Insolvency Court may proceed against their shares.'

During the course of the judgment. Rame-sam. J. following the decision in Satnarain v. Behari Lal, AIR 1925 PC 18 observed :--

'the actual share of the song does not vest in the Official Assignee the property of the father and his power certainly pass, but they pass on the principle of the above decision exactly as they stood in the hands of the father with all the advantages and all the burdens. One of the disabilities attached to the power is that it is extinguished on a division in status..'

Such division in status is brought about by the institution of a suit for partition. Just as the father's power to alienate the son's share by private sale after the severance of the joint family is lost so too the power of the official assignee to sell the share of the sons by private sale is lost by institution of such a suit. Ramesam. J., further observed:--

'The power as passed to the official assignee cannot enlarge the nature of the power and add to it qualities which it did not possess before. All the other remedies open to the official assignee whatever they are, continue as before. The son's liabilities continue as before and they can be worked out by suitable proceedings but not by private powers of sale. Madhavan Nair, J. who agrees with Ramesam. J. also held:

'the filing of a partition suit by the sons would defeat the Official Assignee's power to sell the sons' interests in the joint family properties which accrued to him by reason of the insolvency of the father.'

In Satnarain v. Sri Kishen Das, AIR 1936 PC 277 the Privy Council considering identical questions under the Presidency Towns Insolvency Act held that the capacity to exercise the insolvent father's power to sell the joint family properties for his antecedent debts, these not having been incurred for immoral or illegal purposes vests in the Official Assignee. Then Their Lordships went on to observe:

'But if Section 52 (2) (b) (Presidency Towns Insolvency Act) entitles the Official assignee to exercise the power in question, it is clear that such power must be exercised subject to its limitations and provisions of Section 49 (5) do not apply. Equally the provisions of Section 17 are in no way inconsistent with the exercise of the power of sale subject to its limitations. The sales by the official assignee in that case were completed before the partition suit was instituted.'

In this context the Full Bench decision in AIR 1928 Mad 735 (FB) was also referred to.

11. The position therefore that emerges is that while the father's share of the joint family properties as well as his power to alienate the son's share therein so long as the joint family subsists, vests in the father to discharge the antecedent debts provided they are not tainted with immorality or illegality, upon the father being adjudged insolvent, that power vests in the Official Receiver. As the father's power to alienate the son's share after severance of the joint family is lost, the Official Receiver's power to alienate the sons' share upon the institution of a suit for partition, is lost inasmuch as even, the father's power upon such a contingency is also lost too.

12. However, where the father is adjudged insolvent and the property vests in the Official Receiver on the date of the presentation of the petition and subsequent thereto a partition suit is instituted the question arises whether the power of the father to alienate the son's interest having already vested in the Official Receiver whether that power is divested or taken away by the institution of a partition suit. Ramesam, J. in Official Assignee Madras v. Ramachandra. AIR 1928 Mad 735 (FB) in our view correctly summed the position in this behalf thus:--

'The power to alienate, which till the institution of the partition suit vested in the Official Receiver as a consequence of the adjudication, stands extinsuised by the institution of the partition suit, in the same manner as the power of the father to alienate the son's share by private sale ceases on such partition.'

13. Whether the same consequence would flow from an attachment ofthe son's interest in the joint family property after the father is adjudged an insolvent may now be considered. In this context, it is necessary to notice certain decisions where the son's share in the joint family properties was attached and the father is declared an insolvent

14. We may first proceed to consider oases where the sons' interest was attached by a creditor before the father wag adjudicated an insolvent.

15. Madhavan Nair. J. in Official Receiver v. Arunachalam, AIR 1931 Mad 118 held:

'On the insolvency of the father of a joint Hindu family it is only his own share of the family property that vests in the Official Receiver. The shares of his sons do not vest in the Official Receiver. With respect to those shares what vests in the Official Receiver is only the father's power of disposal. Where the entire property belonging to the judgment-debtor and his sons had been attached before the judgment-debtor was adjudicated as an insolvent and the petition for adjudication was presented after the date of the attachment it follows that the father's power of disposal of the sons' shares had been destroyed by the existing attachment of those shares; and the Official Receiver could not get any power to deal with the sons' shares by reason of the order of adjudication.'

In coming to that conclusion, Madhavan Nair, J. followed the view expressed in Gopalakrishnayya v. Gopalan. AIR 1928 Mad 479(1). He also repelled the contention that after the sale is effected by the attaching creditor, the entire sale proceeds vest in the Official Receiver in the following words :

'When the power of sale is once destroyed by the existing attachment. I do not think the Official Receiver has any right to appropriate the sale proceeds accruing from the sale of the sons' shares. I do not think that the decision of the Full Bench in In The Matter of Baluswami Avvar. (AIR 1928 Mad 735) (FB) which holds that the institution of a suit by the sons against their father for partition after the letter's adjudication as an insolvent extinguishes the right of the Official Assignee to alienate privately the sons' shares for the father's debts can in any way be interpreted as supporting the appellant's contention,....,,..'

A Division Bench of the Madras High Court in Official Receiver v. Arunachalam, AIR 1934 Mad 217 dealt with a case where the property of a Joint Hindu Family comprising of father alone (sic). But before the sale was effected in execution of the decree against the father he was adjudged insolvent. The property of the father was, however, brought to sale by the decree-holder without any objection being taken by the sons. The Bench held :

'.........But an attachment or sale of

their shares in such circumstances will hold good till it has been established that the debt is not binding on their shares ......... The fact that the sons' shares have now been sold cannot make any difference to the position. The sale proceeds of them represent those shares, though they have taken another form. Nor can Section 51. Provincial Insolvency Act, have any application. by that section where execution of a decree has issued against the property of a debtor, no person shall be entitled to the benefit of the execution against the Receiver except in respect of assets realised in the course of the execution by sale or otherwise before the date of the admission of the petition. In so far as there has been execution against the shares of the sons it is not an execution against the property of the insolvent. As to his own Quarter share the sale proceeds of it have gone to the Official Receiver for the benefit of the general body of creditors,'

In Official Receiver v. Imperial Bank. AIR 1936 Mad 193 the Madras High Court while dealing with the Question whether after the attachment of son's interest in the joint family in execution of a decree, the power of the father or manager of the property to alienate it for payment of his debts ceases, the Court also considered whether there was any difference in principle between a case where the son's interest is attached because he is held liable under pious obligation rule and a case where his interest is made liable because he himself is a principal debtor. Stone. J. speaking for the Bench held: --

'We can see therefore no difference in principle.....

In both cases the son's interest is made liable, in both cases assuming the attachment has begun, the son's interest is attached. Once the son's interest is attached, then the father's right to alienate the joint family property in order to pay the father's debt is gone. Once the right is gone the power of the law to transfer that right to the Official Receiver in insolvency is gone too, because there is nothing to transfer.'

In Parameswaramma v. Venkata-ramavva, AIR 1936 Mad 698. Venkata-subba Rao, J. was also considering a case where the son's share was attached before the father's adjudication. He declared :

'It has been held in AIR 1926 Mad 994 (FB) and is now settled law, that what passes to the Receiver on a father's adjudication, is not only the father's share in the property, but also his power ofdisposal under the Hindu Law over the shares of the sons: it is equally clear that when the sons' shares are attached, the attachment puts an end to the father's power of disposal. When therefore an attachment has been effected of the sons' shares before the father's adjudication there is no power of disposal which can pass to, and vest in the Receiver.'

The learned Judge also observed:

'The position cannot in law be altered by reason of the mere fact that what was immovable property has been converted into money.'

We may now turn to cases where the sons' interest was attached subseauent to the father being adiudged an insolvent,

16. In Arunachalam v. Sabaratnam. AIR 1939 Mad 572, Leach. C. J. considered a case where a monev decree was obtained on 24th September. 1931 against the father and his five sons who constituted a Joint Hindu family. Even before the decree, the father was adjudged as an insolvent. The Official Receiver sought to brine the whole of the familv properties to sale for the benefit of the creditors on the ground that the son's shares in those properties were available for the discharge of the father's debts on the principle of Hindu Law that the sons are liable for their father's debts. The decree-holder instituted proceedings in execution of Ms decree and praved for the attachment of the shares of the sons in the family properties and the properties were attached. He also applied to the Court to restrain the Official Receiver from proceeding to sell the shares of the sons in the attached properties. While the Subordinate Judge allowed the Official Receiver to sell the sons' share also subject to his depositing the sons' share of sale proceeds in Court and subsequently directed the same to be paid towards the satisfaction of the decree obtained by the appellant, on appeal to the District Judge, that order was reversed on the ground that the right to sell the properties had vested in the Official Receiver at the time of adjudication. On appeal to the High Court, Leach. C. J. speaking for the Bench observed:--

'The fact that the right to sell the son's shares had devolved on the Official Receiver was not the only factor.'

The learned C. J. then referred to the case law on the subject and held:

'This Section (Section 28(2)) refers only to the property of the insolvent and the prohibition against the institution of legal proceedings with regard to the insolvent's property. Although the right of an insolvent Hindu father to sell his son's share in the family property to discharge his own lawful debts vests in the Official Assignee or the Official Receiver as thecase may be, it does not follow that proceedings cannot be taken in respect of the son's interest in the familv property without the leave of the Insolvency Court. The right to sell the son's interest only exists 60 long as the son's interest in the family property exists. If the interest has been sold or if there has been a lawful attachment, which has the same effect, there exists no property over which the power can be exercised.'

Then the learned C. J. proceeded to consider whether the permission of the Insolvency Court is necessary and declared :

'The position is that while the interest of the son remains unsold or unattached, the Official Assignee has the right to sell the properties for the lawful debts of the insolvent father, but unless he exercises his right the may lose it and he loses it if the interest of the son is attached by a creditor of the son.'

17. In that view the Bench reversed the decision of the District Judge and restored that of the Subordinate Judge.

18. In Swarupchand v. Janakiramayya, AIR 1942 Mad 330 the Bench reiterated the above position, posing the question as follows:--

'The father's power to sell (son's interest in the joint familv property) would continue to subsist until division. The father's insolvency does not per se affect the undivided status and till the status is severed, the power would vest in the Official Assignee. Therefore, while that status lasts, if an attachment of the son's shares takes place, the question is what is the effect of that attachment on the vestine of the said power in the Official Assignee.'

Then after referring to the decisions in Official Receiver, Coimbatore v. Aruna-chalam Chettiar, AIR 1934 Mad 217; Official Receiver. East Godavari v. Imperial Bank of India, ILR (1936) 59 Mad 296 = (AIR 1936 Mad 193): Kanva-kaparameswaramma v. Venkataramavva, 71 Mad LJ 294 = (AIR 1936 Mad 698) and Arunachalam Chettiar v. Sabaratnam Chettiar. (1939) 1 Mad LJ 889 = (AIR 1939 Mad 5721 the Bench of the Madras High Court observed:--

'In all these cases the view has been expressed that by reason Of the attachment, the father's power of disposal of the son's share ceases and therefore there can be no vesting of his power in the Official Assignee or if there was vesting, he would be divested of it.'

Then examining the question as to what extent this proposition can be said to be sound in principle proceeded to consider the matter in the light of Section 64, Civil P. C. and held :

'.........so lone as the family is undivided the power of the father to sell the son's share is not lost. The attachment of the son's interest may prevent the alienation taking effect as against the claims under the said attachment, and when a sale of that share is effected the Power may be destroyed, but the power does not cease till the sale takes place. It would be open to the father to exercise the power of sale but the alienee would get a defeasible title as the alienation under the attachment would prevail. Therefore, if the power of disposal subsisted, I do not see any reason why it could not vest in the Official Receiver subject to the same disabilities it was subject to in the father's hands at the date of vesting. During the pendency of the attachment, if the Official Receiver chooses to exercise the right of sale, the alienees. will set a title which will prevail against the son though it may not prevail against the claims enforceable under the attachment, that is. if a sale takes place in pursuance of the attachment the purchaser under that sale will get an indefeasible title and the purchaser from the Official Receiver will not get any.'

19. In a separate judgment in the above case, agreeing with Venkataramana Rao, J., Somayya, J. also observed:

'...............As pointed out by him in all the decisions on the point the contest was between the attaching decree-holder or persons claiming under the attachment on the one hand and the Official Receiver on the other hand. In such a case, the right of the former undoubtedly prevails. But if as in the case before us, the attaching decree-holder does not bring the property to sale in pursuance of the attachment The attachment may leave a ver not exercise the power of the father for the benefit of the creditors, subject, of course, to any right arising under the attachment. The attachment may leave a substantial surplus, property worth ten thousand may be attached for a decree for a thousand. In such a case, so long as the son has not become divided from the father. I do not see any reason why the Official Receiver standing in the place of father should not sell the property. The son at any rate should I think, be bound by the sale effected by the Official Receiver. The disability of the Official Receiver should be limited to a case where the question is between the Official Receiver and the attaching decree-holder or a person claiming under the attachment.

20. This decision to our mind in so far as it declares that notwithstanding the attachment of the son's interest the Official Receiver may proceed to sell the son's interest does not lay down the correct law. If the attachment of son's interest extinguishes the power of a father to sell then it cannot vest in the Official Receiver at all and hence he cannot sell the son's interest: consequently the question of his selling the son's interest subject to the rights under attachment does not arise. This decision too however, proceeds upon the footing that what vests in the Official Receiver is the insolvent father's share and his power of disposal over the son's share in the joint family properties.

21. Though there was a slight distinction made in the above case with re-eard to the consequence of vesting of the father's power to alienate the son's interest in the Official Receiver consequent upon the father being declared insolvent, all the decisions so far rendered by the Madras High Court consistently held that not only the father's share in the joint family properties but his power to alienate the share of the son in the joint-family for discharging the debts incurred by the father vested in the Official Receiver. But that did not prevent a decree-holder from attaching the son's interest in the joint family as such interest did not vest in the Official Receiver. Only the father's power to alienate the son's share vested and so long as that power was not exercised by the Official Receiver, the son's share could be attached and brought to sale by a decree-holder, notwithstanding the fattier being declared as insolvent.

22. A Full Bench of the. Patna High Court in Biswanath v. Official Receiver, AIR 1937 Pat 185 also took the same view and expressed it in the following words :

'When a Hindu father is adjudicated insolvent, the interest of his son or sons in the family property does not vest in the Court or the receiver, but the Court or the receiver has power to sell the joint familv property including the interest of the minor son or sons of the insolvent for the payment of his antecedent debts not incurred for immoral or illegal purposes. In the course of the judgment, their Lordshipg considered the meaning of the word 'Property' defined under Section 2(d) of the Provincial Insolvency Act and observed :

'This simple definition of the word 'property' is in my opinion comprehensive enough to include the right which the father has of bringing to sale his son's interest to pay his own legitimate debts. The position of the father in a Hindu Joint family is a peculiar one and if we give a restricted meaning to the word 'property' and construe it to mean only those objects and rights over which the father has an absolute power of disposal, the question as to what is the whole property of the father which vests in the Receiver under Section 28 when he has been declared insolvent, would be surrounded with many difficulties and it may even be questioned whether strictly speaking any property would vest in the Receiver.'

Then after referring to the various decisions in this behalf and the provisions of Section 52 of the Presidency Towns Insolvency Act and Section 28 of the Provincial Insolvency Act. Fazl Ali. J. observed :--

'Under the old decisions it was possible to take the view that under Section 28 the whole property which the father could sell voluntarily to pav off his debts is by operation of law transferred to the Court or the Receiver. This view can no longer be taken, because it has been definitely field by the privy Council in Satnarain v. Sri Kishen Das, AIR 1936 PC 277 that upon the adjudication of a Hindu father the son's interest in the family property does not vest in the Official Assignee or the Receiver.' The Privy Council in Sat Narain v. Sri Kishen Das, AIR 1936 PC 277 held: 'The Official Assignee has the capacity to exercise the insolvent father's power to sell the joint family properties for his antecedent debts, these not bavins been incurred for immoral or illegal Purposes.'

The Full Bench of the. Madras High Court, however, struck a different note in Ramasastrulu v. Balakrishna, AIR 1942 Mad 682 at p. 683. After noting that there is no provision in the Provincial Insolvency Act which corresponds to Section 52 of the Presidency Towns Insolvency Act, the Full Bench held :

'Under the Provincial Insolvency Act the vesting of the property of the insolvent in the Official Receiver is governed only by Section 2(d) and Section 28 and therefore there can be no vesting of the right of a manager of a Joint Hindu family to sell family property for family necessity, unless that right can be regarded as property. The powers of a father manager are greater than the powers of a manager who is not the father of the other coparceners, because the father has power not only to sell family property in order to discharge a family liability but also the right to sell his son's interest in the family estate to discharge his own personal debts, provided that they have not been incurred for any immoral or illegal purposes. In the light of the decisions of the privy Council to which reference has been made and will be considered in a moment a father's power to sell his son's property must be taken to be a power falling within Section 52 (2) (b). Presidency Towns Insolvency Act, but the power of a Manager who is not thefattier of the other coparceners to sell family assets to meet a family liability is not a power which he can exercise for his exclusive benefit, and Section 52 (2) (b) may not apply in such a case. That question does not, however, arise in this appeal and therefore nothing further need be said in this connection.

If we are to have regard to the judgments of the Privy Council in the Lahore case AIR 1936 PC 277 = ILR 17 Lah 644 and AIR 1925 PC 18 = ILR 6 Lah 1 we must hold that under the Provincial Insolvency Act the manager's power to sell does not vest in the Official Receiver. Under that Act, it can only vest if the power is regarded as property, and in the light of what is said in ILR 6 Lah 1 and ILR 17 Lah 644 with regard to the effect of Section 2 (e) and Section 17 Presidency Towns Insolvency Act, the power cannot be regarded as property. The Judicial Committee have made it abundantly clear that it is not property and that the right to sell only vests under the Presidency Towns Insolvency Act by virtue of Section 52, which as we have already indicated, has no counter-part in the Provincial Insolvency Act.'

In taking that view. Their Lordships observed :

'It is very regrettable that the law of insolvency should be different in cases which fall within the Presidency Towns Insolvency Act and cases which fall within the Provincial Insolvency Act, but (they) felt the remedy is in the hands of the Central Legislature and we trust that it will bring the two Acts into line and will do so without delay.....' The Full Bench then referred to the judg-ment of the Full Bench of Patna High Court in Bishwanath v. Official Receiver, AIR 1937 Pat 185 = 16 Pat 60 and dissented with the view expressed therein. Then after referring to the provisions of Section 2 (e) and Section 17 of the Presidency Towns Insolvency Act, their Lordships observed : 'The decisions of the Privy Council in (ILR 6 Lah 1 and ILR 17 Lah 644) un-doubtedly negatived what had been regarded as being settled law but if the power of the father is not 'Property' under the Presidency Towns Insolvency Act it cannot be regarded as property under the Provincial Insolvency Act.'

23. In all the judgments of the Madras High Court delivered before the decision of the Privy Council in Satnarain v. Sri Kishen Das. AIR 1936 PC 277 and subsequent thereto until the decision of the Full Bench in Ramasastrulu v. Bala-krishna, AIR 1942 Mad 682 (FB) upon a father-manager of a Hindu familv being declared insolvent, it was held that not only the share of the insolvent father butalso his power to alienate his sons' interest in the joint family property which was deemed to be 'property' within the meaning of the Provincial Insolvency Act vested in the Official Receiver. But the Full Bench in Ramasastrulu v. Bala Krishna, AIR 1942 Mad 682 (FB) in holding that this power of the father or the manager was not 'property' within the meaning of Section 2(d) and Section 28 of the Provincial Insolvency Act. made a clear departure from the view taken by the Courts over a considerable period. What was considered to be settled law was thus unsettled. Further while the power of the father to alienate the sons' interest was deemed to be Property under the Presidency Towns Insolvencv Act, as a result of this Full Bench decision, it could no longer be deemed to be so under the Provincial Insolvencv Act. However. the Full Bench itself observed that this anomalous situation requires to be remedied by the legislature. This divergence of views expressed in the Full Bench decisions of the Madras High Court and the Patna High Court required to be re-solved. With a view to bring about uniformity in this behalf in the provisions of the Provincial Insolvencv Act and the Presidency Towns Insolvencv Act, the legislature considered introducing an amendment in the Provincial Insolvencv Act as early as in 1943. The Government of India, however, postponed the same pending the termination of the war. After consultation with the Provincial Governments and the Hieh Courts it introduced Section 28A by way of an amendment under Section 2 of the Provincial Insolvency Amendment Act XXV of 1948. That section reads as follows:--

'28-A. The property of the insolvent shall comprise and shall 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 the property of the insolvent by a Court or Receiver or the Collector acting under Section 60 made before the commencement of the 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 (Amendment) Act, XXV of 1948.'

24. The effect of this amendment came up for consideration before the Supreme Court in Naeeswaraswami v. Viswasundara, : [1953]4SCR894 at p. 373. Their Lordships held :

'There was some difference of Judicial opinion as to whether the powers of a father under the Mitakshara Law to alie-nate 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 vests in the Receiver on the adjudication of the father as an insolvent. Under the Presidency Towns Insolvencv Act, this power was held to vest in the Official Assignee under Section 52 (2) of the Act. Satnarain v. Sri Kishen Das, AIR 1936 PC 277. As regards cases governed by Provincial Insolvency Act it was held by a Full Bench of the Madras High Court that the father's power to dispose of his son's interest in the joint family property for satisfaction of his untainted debts was not 'property' within the meaning of Section 28(2)(d), Provincial Insolvencv Act. 'Ramasastrulu v. Balakrishna Rao, (AIR 1942 Mad 682) (FB) while a contrary view, was taken by a Full Bench of the Patna High Court-- 'Vide Bishwanath v. Official Receiver, (AIR 1937 Pat 185) (FB). The conflict has now been set at rest by the enactment of Section 28A in the Provincial Insolvencv Amendment Act of 1948 which came into force on 12-4-1958. The new section reads as follows:-- 'The property of the insolvent shall comprise and shall 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.'

The language of the section indicates that its operation has been expressly made retrospective. The result therefore, is that the power of defendant 1 to alienate the interest of his sons, defendants 2 and 3, in the mortgaged properties for satisfaction of his antecedent debts, did pass to the Receiver as 'property' within the meaning of the Provincial Insolvency Act and consequently on a sale by the Receiver the interest of defendants 2 and 3 did vest in the sixth defendant and he alone must be held competent to exercise the right of redemption.'

Having regard to Section 28A which was given retrospective effect, it is plain that the property which vests in the Official Receiver comprises of not merely the property of the insolvent as such but also his 'power 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.' Thus by virtue of Section 28A of the Provincial Insolvency Act, the power of the father to alienate the sons' interest for his own debts which are not tainted with illegality or immoralitv is now undoubtedly deemed to be the 'property' of the Insolvent.

25. It was, however, argued before us that the vesting of such a power of the father in the Official Receiver in fact vested the share of the insolvent's sons in the Official Receiver. It was urged placing reliance on the judgment of the Supreme Court in Nageswaraswami v. Viswasundara, : [1953]4SCR894 that the power of the father to alienate the sons' interest in the joint family estate is itself having been deemed to be 'property' within the meaning of the Provincial Insolvency Act, the sons' share of the property as such passes to the Official Receiver and therefore notwithstanding the subsequent attachment of the sons' interest in the joint family, the Official Receiver can proceed against the sons' share of the property. We do not agree with this contention; all that the Supreme Court in that decision declared was that the power of the father to alienate the sons' share vests in the Official Receiver as 'Property'. Moreover, while so observing the Supreme Court was not considering this particular aspect of the matter but was only dealing with the question whether Section 28A was retrospective or prospective in its operation and held that it was 'retrospective'.

26. Reliance was also placed upon a decision of a single Judge of this Court. Sanjeeva Rao Naidu, J. in N. Narasunhacharyulu v. Sambaiah, : AIR1960AP131 who took the view that

'the power of the father to alienate the interest of his sons for the satisfaction of his antecedent debts passes to the receiver as 'Property'. Once it has so passed Section 28(2) of the Act debars any creditor from having any remedy over the property of the insolvent which property includes the property defined under Section 28A.'

27. The learned Judge equated the power of the father to alienate his sons' interest with the share of the sons in the joint family estate. In that view the learned Judge disagreed with the view expressed in Puthayya v. Suramma, : AIR1951Mad713 and Seethayya v. Venkanna, : AIR1951Mad1010 . He did not refer to the other cases of the Madras High Court which were binding on him evidently under the impression that the SupremeCourt in Nageswaraswami v. Viswasundara, : [1953]4SCR894 did not intend such a consequence. In our opinion, there is a clear distinction as pointed out in the decisions referred to earlier between the father's power to alienate the sons' interest in the joint family and the sons' interest or share as such in the joint family property. The power of the father is exercisable with respect to the sons' share and what vests in the father is not the sons' share but only the power to deal with the sons' share. It is only by virtue of the definition contained in Section 2(d) of the Provincial Insolvency Act and Section 28-B of the Act and which is now made clear by the insertion of Section 28A that this power of disposal of the sons' share which vests in the father, is also 'deemed to be property' and vests in the Official Receiver.

28. That the power of the father to alienate the sons' interest in the joint family property is distinct from the son's share as such, is also clear from the fact that an attaching decree-holder merely attaches the son's interest and not only specific items of property as exclusively belonging to the son. It cannot be disputed that the power of the father to alienate the son's interest in the joint family ceases no sooner than the son's share is attached in execution of a decree. By such attachment what stands terminated is the father's power to deal with the son's share, though under the doctrine' of pious obligation the son continues to be under a duty to discharge the father's debts notwithstanding the termination of the father's power to dispose of the son's share for satisfying those debts. But because only the right of the father vests in the Official Receiver with respect to the son's share and not the son's share of property, as such, that right of the father comes to an end by the attachment of the son's interest; likewise the Official Receiver's power also comes to an end on such attachment. The power of the Official Receiver cannot be higher than that of the insolvent father whose property vests in him. Even in Ramasastrulu v. Balakrishna. AIR 1942 Mad 682 (FB) the Madras High Court did not hold that the Official Receiver has any larger or greater power than that of the father in this behalf. What it held was that this power of the father could not vest as 'property' in the Official Receiver and as such irrespective of whether there was an attachment of the son's interest or not, the Official Receiver could never exercise the power of disposing of the son's interest for discharging the debts of the insolvent father.

29. It is now well settled that while the son is not personally liable for the debts of his father even if the debt isnot incurred for an immoral purpose: his obligation is limited to the assets received by him as his share of the joint family property or to his interest in the joint family estate. As laid down by the Supreme Court in Pannalal v. Naraini. : [1952]1SCR544 'this pious obligation of the son to pay the debts of his father exists whether the father is alive or dead.' It is open to the father during his lifetime to effect a transfer of any joint family property including the interest of his song in the same, to pay off an antecedent debt not incurred for family necessity or benefit provided it is not tainted with immorality. It is eaually open to the creditors to obtain a decree against the father and in execution of the same, put up for sale, not merely the father's but also the son's interest in the joint estate...............Even if the sons are not made parties, they cannot resist the sale unless they succeed in establishing that the debts were contracted for immoral purposes. That being the position with regard to the sons' liability, no sooner than there is a severance in joint status the power of the fattier to sell the sons' share quondam in the joint family comes to an end. That is not to say that the creditor who can recover the debt from the father personally and from his assets, cannot reach the sons' share at all which is under an obligation to discharge his father's debt. Only the father's power to reach the share of the son comes to an end and consequently on the adjudication of the father as an insolvent that power cannot vest in the Official Receiver either. The same consequence follows if the power of the father to alienate the son's interest is terminated or comes to an end by the attachment of the son's interest by a decree-holder.

30. We may now proceed to consider if any of the decisions of this Court lay down anything different from the above.

31. In Subbarao v. Official Receiver, West Godavari, : AIR1965AP52 dealing with a case where the Official Receiver had filed applications under Sections 4 and 5 of the Provincial Insolvency Act on behalf of the general body of creditors who had obtained a decree both against the father, who was adjudged insolvent, and his sons and had brought the share of the sons of the insolvent in some of the joint family properties to sale. Venkate-sam, J., sitting singly held :

'An attachment, whether before or after judgment, does not create any charge on the attached property. An attaching creditor is not a secured creditor. Hence, if an order of adjudication is made after attachment but before sale, the property vests in the Official Receiver for th? benefit of the general body of creditors, and the attaching creditor is not entitled to obtain satisfaction of his decree by sale of the attached property. The order of adjudication divests the rights of the attaching creditor, and remits him to the position of an ordinary creditor.

The effect of an attachment of the son's share is not to create a charge or lien in favour of the attaching creditors. But it only puts ,an end to the power of disposal of the father and of the Official Receiver under Section 28A of the Provincial Insolvency Act to dispose of son's shares. It does not preclude the Official Receiver from obtaining a declaration from the Insolvency Court that the son's shares are liable for the discharge of the debts due to the several creditors which are not illegal or immoral, and have the property sold through Court.'

In repelling the contentions advanced to the contrary. Venkatesam. J, observed :

'.........the decisions reported in theOfficial Assignee of Madras v. Ramachandra Iyyer. ILR 51 Mad 417 = AIR 1928 Mad 735. The Official Receiver, Coimbatore v. Arunachalam Chettiar. AIR 1931 Mad 118 and Murugappa Mudali v. The Official Receiver, Chittoor. (1943) 1 Mad LJ 24 = AIR 1943 Mad 303 all lay down that the prayers asked for by the Official Receiver can be granted under Section 4 of the Provincial Insolvency Act. They also lay down that where the father and the sons have been divided in status, the power of the father to alienate the sons' shares is not lost, that the liability of the sons can be adjudicated upon by the Insolvency Court, and that their shares can be got at by the Official Receiver.'

This decision recognises that what vestg in the Official Receiver with respect to the son's share of the property is the father's power of disposal of the son's share and where the father is declared an insolvent, the Official Receiver cannot exercise that right if the son's interest is attached. But the Official Receiver can certainly apply under Section 4 of the Provincial Insolvency Act for getting at the son's share and proceed to have the Property sold through Court notwithstanding the attachment, provided the debts of the father are not illegal or immoral. Only the Official Receiver's right of private sale is lost just as father's right to deal with the son's share is lost by dint of the attachment of son's interest in the joint family properties. The attachment of the son's interest whether before or after adjudication terminates the Dower of the Official Receiver to dispose of by private sale the son's share in the joint family properties was recognised. But the question whether there is any difference between adjudication prior to and subsequent to the attachment, did not crop up for consideration.

32. The observation of Venkate-sam. J, that if an order of adjudication is made after the attachment but before sale the property vests in the official receiver for the benefit of the general body of the creditors cannot in our opinion apply to the attachment of the sons' interest where only the father is adjudged insolvent, it may apply only to a case where the interest of the insolvent father himself was attached and before it was brought to sale for the property of the insolvent vests in the Official Receiver. So far as the sons' interest in the joint family is concerned, as the father has only the power of disposal, that comes to an end with the attachment of the sons' interest by a creditor and consequently the Official Receiver also would not have any power by the adjudication of the father as an insolvent. But even so the learned Judge did not hold that the Official Receiver has a right to dispose of the sons' share by private sale. He only held that it will not preclude the Official Receiver from obtaining a declaration from the Insolvency Court that the sons' shares are liable for the discharge of the father's debts which are not illegal or immoral and for selling the properties through Court.

33. A Bench of this Court in Sri Raja Vatsavaya Venkata Suryanaravana Jagapathi Raju Bahadur v. The Official Receiver, East Godavari, : AIR1965AP451 dealt with a case in which a suit for partition was instituted by the sons on 4-11-1957 after the father had filed an insolvency petition in 1954. To that suit the Official Receiver was added as a party on 15-12-1958 and a decree was passed against the insolvent as well as against the members of the joint family. The order of adjudication was made on 12-1-1958. Their Lordships held that when the creditor seeks to proceed against the son's share, the leave of the Insolvency Court is not necessary, as the Official Receiver's right to exercise the father's power to sell the sons' share for the debts of the insolvent father will be lost If the sons' shares are attached before the Official Receiver actually exercises that power the question whether the attachment of the sons' shares was made before the filing of the insolvency petition to which date the adjudication relates back or after the filing of the insolvency petition, becomes immaterial. Therefore, the decree-holder can in execution of his decree proceed against and sell the shares of the sons of the insolvent in the joint family properties without theleave of the insolvency Court. Their Lordships further held :

'But it must be noted that the share of the son itself in the joint family property does not vest in the Official Receiver. What vests in the Official Receiver is only the father's power to sell the son's share for discharging the father's debts which are not illegal, and immoral. But once the son files a suit for partition and thus divided in status from the father's Power to sell the son's share to discharge his debts though incurred before the division in status ceases and the father could no longer sell his son's share for his debts. When the father's power itself is lost by the filing of the suit for partition by the son, the Official Receiver's power also ceases.'

In the above case the son had instituted a suit for partition before the adjudication of the father.

34. Their Lordships also considered as to what would be legal position in the son's shares were attached by a creditor of the father after the father was adjudged insolvent and held :

'Similarly, the son's share may be attached even after the insolvency of the father by a creditor of the father in execution of a decree obtained by him against the father or against the father and son in respect of a personal debt of the father, unless it has been previously sold by the Official Receiver. It is not disputed that the father's Power to sell the son's share for his personal debts cannot be exercised, once the son's share is attached by a creditor either of the father or of the son or both. Since the right of the Official Receiver is only co-extensive with thai of the father, it necessarily follows that, if the son's share is attached by a creditor, the Official Receiver's Power also to sell the son's share for distribution among the creditors is extinguished.'

In this case, the Bench clearly held that so lone as the Official Receiver did not actually exercise the father's right to sell his sons' shares which vest in the Official Receiver by virtue of his being declared insolvent, the sons' shares could be proceeded against by the attaching creditor. without the leave of the Insolvency Court irrespective of whether this attachment is before or after the adjudication. In our opinion, the learned Judges rightly dissented from the view expressed by Sanjeeva Row Nayudu. J. in N. Nara-simhaeharyulu v. Sambaiah, AIR 1960

Andh Pra 131 for what vests in the Official Receiver on the father being adjudged insolvent is not the share of the son in the joint family but only his power to dispose of the son's share and that powerComes to an end with the attachment of the son's interest by a creditor.

35. Parthasarathv, J,, sitting singly had to consider in K Krishna Dass v. Ramakotayya. (1971) 1 Andh WR 271 a case where the decree-holder who was proceeding against the son's interest in the joint family, for the satisfaction of the decree against the son, was sought to be prevented by the creditor of the father who was adiudged insolvent by filing an application under Sections 4 and 5 of the Provincial Insolvency Act. The learned Judge held:--

'There is. therefore no precedent which warrants the conclusion that notwithstanding the attachment of the sons' shares by the creditor before the vesting order, the Official Receiver can resort to the exercise of the power of sale in respect of the sons' shares. To hold that the prior attachment yields place to the Official Receiver's power of sale, is to vest in the Official Receiver not merely the power of sale but the very shares of the sons in the coparcenary property. This in my opinion, is a result which is incompatible with the rules of Hindu Law and the provisions of the Insolvency Act. If the attaching creditor's right is subordinated to the Official Receiver's cower of disposal of the sons' shares, the resultant position is that the Court is conferring on the Receiver a riaht which goes far beyond the terms of Section 28A.......

If there is an attachment of the interest of the sees, the Official Receiver's power lapses......'

The learned Judge referred to the Bench decision of this Court in Raja Vatsavaya Venkata Suryanarayana Jaga-pathi Raju Bahadur v. Official Receiver : AIR1965AP451 and observed:

'............the power of disposal vested in the Official Receiver can if at all be exercised only before it is subjected to attachment at the instance of the creditor.'

36. The learned Judge also observed the pronouncement of the Division Bench roust by implication be deemed to have overruled the decision in Subbarao v. Official Receiver. West Godavari, U964) : AIR1965AP52 .

37. The only decision of this Court which remains to be considered and which is said to be in conflict with the view taken by another Bench of this Court in Raiavatsavaya Venkata Suryanarayana Jagapathi Raiu Bahadur v. The Official Receiver, East Godavari, : AIR1965AP451 and which led to this reference is Marine Venkata Naravudu v. Thammineedi Subbarao. : AIR1973AP113 . That was a case referred by A. D. V. Reddv. J., to the Bench in the view that in Raja Vatsavaya Venkata Suryanarayana Jagapathi Raiu Bahadur v. Official Receiver. East Godavari : AIR1965AP451 certain aspects of the question were not considered. The applicants therein had filed an application under Section 4 of the Provincial Insolvency Act in the District Court. West Godavari for a declaration that the sons of the insolvent were also liable for the discharge of their father's debt on the doctrine of bious obligation and also for a declaration that one of the creditors alone was not entitled to bring the son's share to sale and to have any preference over the general bodv of the creditors. The sons of the insolvent father resisted the application contending that it was not maintainable. The attaching creditor contended that the sons' interest was attached prior to adjudication of the insolvent father and claimed that the Official Receiver cannot exercise any rights with respect to the sons' share. The Bench upheld the attaching creditor's contention and dismissed the appeal. The Bench posed the question for consideration thus:

'When the father's power of disposal of the sons' shares in the joint family properties is lost or extinguished by reason of a decree-holder attaching the shares of the sons prior to the adjudication of the father, whether the Official Receiver in whom the property of the insolvent father, which comprises also the power of the father in or over the property of the undivided sons vests, would acquire any better rights in the matter of disposal of the properties under attachment Drior to adjudication.'

Alter referring to the case law on the subject, the learned Judges observed:

'The line of authority, ig that the father's power to sell the sons' shares for his personal debts ceases when once his sons' share is attached by the creditor either for antecedent debts not tainted by illegality or immorality or tile son's debts or both and that being the case. the Official Receiver, whose powers are only co-extensive with that of the father under Section 28A will have no more Powers than the father to deal with the sons' share for distributing it among the creditors. In other words, if the father's power stood extinguished by reason of attachment prior to adjudication, the Official Receiver, by reason of adjudication of the father will get no better or higher rights than the father.'

The learned Judges expressed dissent from the view expressed by Venkate-sam. J. in Subbarao v. Official Receiver. West Godavari, : AIR1965AP52 in so far as he declared tihat if the order of adjudication made after attachment but before sale, the property vests in the Official Receiver for the benefit of the general body of creditors, and the attaching creditor is not entitled to obtain satisfaction of his decree by sale of the attached property. We are also of the view that this observation of Venkatesam, J. is not correct. While approving the view expressed by Partha-sarathy, J. in K. Krishna Dasg v. G. Rama-kotayya. (1971) 1 Andh WR 271 the learned Judges of the Division Bench further observed:

'The attachment of the sons' share in the joint family properties prior to the adjudication of the father as an insolvent makes all the difference in so far as the Power of the Official Receiver to sell the sons' share is concerned for all that is vested in the Official Receiver is only the father's power to sell the sons' share for discharging the father's debts which arc not illegal or immoral but not the share of the sons of the insolvent in the joint familv properties and that power is lost when once the sons' share is attached prior to the adjudication of the father.'

In making this observation, in our view, the Bench did not propose to draw a distinction between the effect of an attachment of the sons' interest in the joint familv before adjudication and after the adjudication of the father as an insolvent. No doubt, the Bench observed that the attachment of the sons' share in the joint family properties prior to the adiudication of the father as an insolvent makes all the difference. By stating so what the Bench really pointed out was that if the father is adjudged insolvent before the son's interest in the joint familv is attached, not only the father's share but also the father's power of disposal of the sons' share vests in the Official Receiver. But if the attachment is before adiudication only the share of the father vests in the Official Receiver and not the power of the father to sell the sons' interest for, that power of the father to dispose of the sons' interest is lost due to the prior attachment and conseauently does not vest on adjudication in the Official Receiver. But after adjudication if the Official Receiver fails to exercise the power of the father to alienate the sons' interest before attachment, just as the father's power of disposal is lost, the Official Receiver's power of disposal is also lost. It is this aspect that was sought to be emphasized and that observation was not meant to strike a different note from what was held in Raja Vatsavaya Venkata Suryanarayana Jagapathi Raiu Bahadur v. The Official Receiver. East Godavari, : AIR1965AP451 . In our view, there is no real conflict in these two decisions.

38. We may now turn to the other question arising in the Civil Miscellaneous Appeals.

39. Under Section 52 of the Provincial Insolvency Act. provision is made for the Official Receiver applying to the executing Court for delivery of possession of the properties of an insolvent in the following words :

'Where execution of a decree has issued against any property of a debtor which is saleable in execution and before the sale thereof notice is given to the Court executing the decree that an insoly-ency petition by or against the debtor has been admitted, the Court shall on application, direct the property, if in the possession of the Court, to be delivered to the receiver, but the costs of the suit in which the decree was made and of the execution shall be a first charge on the property so delivered, and the receiver may sell the property or an adequate part thereof for the purpose of satisfying the charge.'

Under Section 4 of the Act, the Court is vested with full powers to decide all questions whether of title or priority or of any nature whatsoever which may arise in any case of insolvency coming within the cognisance of the Court or which the Court may deem it expedient or necessary to decide for the purpose of doing complete justice or making a complete distribution of property. In this behalf Section 5 of the Act vests the Court with the same powers as it has in exercise of its original Civil Jurisdiction. When the Official Receiver applies under Section 52 of the Act for delivery of possession of the insolvent's property and also of such property in respect of which the insolvent may exercise powers, the Court is bound to deliver the same. But what power the Official Receiver may exercise with respect to the son's share of the joint family property depends upon whether the debts are tainted with illegality or immorality and whether his interest has been attached earlier in execution of a decree by any other creditor. Nonetheless, inasmuch as by mere attachment, the attaching creditor does not set a right to enter into possession of the son's share of the property, that cannot stand in the way of the Official Receiver being put in possession of that share of the property under Section 52 of the Act.

46. In Sri Raia Vatsavava Venkata Suryanarayana Jagapathi Raju Bahadur v. The Official Receiver, East Godavari, : AIR1965AP451 the Bench in our opinion rightly held that the Official Receiver may apply to the executine Court and the executingCourt is bound to decide whether the attached property which is sought to be brought to sale in execution of the decree is the self-acquired property of the insolvent or the joint family property in which the sons have a share. The Court was also right in holding that the Official Receiver has a right to take possession of the attached property and the attaching decree-holder in execution of the simple money decree has no right to possession of the attached property.

41. To sum up: Upon a father. who is the Kartha of a joint Hindu family consisting of himself and his sons, being adjudged an insolvent, what vests in the Official Receiver under the Provincial Insolvency Act is his self-acquired property, his undivided share in the joint family property and his power of alienation over the interests of the sons in the joint family property provided the debts of the father are not tainted with illegality or immerality. The interest of the sons or their shares as such in the joint family property does not vest in the Official Receiver. It is only the father's power to alienate this interest or share that vests in the Official Receiver. On such vesting the Official Receiver has three courses open to him with respect to the interests of the sons in the joint family property: (1) to exercise the power of the insolvent father to dispose of by private sale. (2) to apply to the insolvency Court under Sections 4 and 5 of the Provincial Insolvency Act. and (3) to apply under Section 52 of the Provincial Insolvency Act to the Court executing the decree under Section 52 for delivery of possession, of the property and take proceedings for bringing the properties to sale.

The power of the father to dispose of his son's share in the joint family properties by private sale, however, subsists only so long as there is no disruption of the joint family status. That power comes to an end when that status is disturbed either by the institution of a suit for partition by the sons or by the attachment of the son's interest in the joint family properties by a creditor, just as the father's power to alienate the son's interest is extinguished on the happening of any of the abovementioned contingencies, so also the power of the Official Receiver comes to an end. for the power of the Official Receiver in this behalf is co-extensive with that of the father. If before the exercise of this power by the Official Receiver any of the above contingencies occur, i.e., the joint family status is disrupted by actual partition, or by the institution of a suit for partition, or by the attachment of the son's interest by any creditor, then the Official Receiver cannot proceed to dispose of the son's interest by private sale

This view consistently expressed in the various decisions of the Madras High Court prior to the decision in Ramasas-trulu v. Balakrishna, AIR 1942 Mad 682 (FB) is in our opinion, the correct view The said position is made plain by Section 28A of the Provincial Insolvency Act inserted by the Provincial Insolvency Amendment Act XXV of 1948 which was necessitated by a divergent note struck by the decision in Ramasastrulu v. Balakrishna, AIR 1942 Mad 682 (FB). Whether the attachment of the son's interest is before the adjudication of the father as an insolvent or after the adjudication, it makes no difference so far as the son's interest in the joint family properties is concerned. Once there is an attachment of the son's interest by a creditor whe-the before or after the adjudication the Official Receiver's power to dispose of their interest or share by private sale is lost, that power could have been exercised only before the attachment. In our view, there is no conflict in the two Bench decisions of this Court in Sri Raja Vatsavaya Venkata Suryanarayana Jaga-pathi Raju Bahadur v. The Official Receiver, East Godavari, : AIR1965AP451 and Manne Venkata Narayudu v. Thahammi-needi Subbarao, : AIR1973AP113 in this behalf. The Official Receiver, however, may apply to the insolvency Court for bringing the sons' interest also to sale provided the debts of the insolvent father to be discharged are proved to be not incurred for illegal or immoral purposes, for the pious obligation of the son to discharge the debts of the father incurred while he was joint which are not tainted with illegality or immorality continues even after partition. However as the attaching creditor is not forthwith entitled to possession of the son's interest in the property the insolvency Court, may notwithstanding the attachment put the Official Receiver in possession of the son's interest in the joint family property.

42. In view of the conclusions we have reached above, we hold that the objection of the petitioner who is the son of the insolvent (judgment debtor No. 2) to the attachment and sale of his interest in the joint family properties in execution of the decree against him and his father, has been rightly rejected by the Court below. The decree-holder is entitled to attach the son's interest (judgment-debtor No. 2) as the Official Receiver had not exercised the right of the petitioner's father to bring the son's share of the properties to sale. The Civil Revision Petition No. 1109 therefore fails and is accordingly dismissed with costs.

43. The petition E. A, 1030 of 1970 filed by the Official Receiver under Section 52 of the Provincial Insolvency Act was for delivery of possession of the properties described in Schedule to E. P. 362 of 1970 filed by the respondent, decree-holder who obtained a decree in O. S. 117/70 on the file of the Subordinate Judge, Vijayawada. The objections raised by the decree-holder to that petition were, in our opinion, rightly rejected by the Court below. C. M. A. 15/72 must therefore be dismissed with costs, and it is accordingly dismissed with costs.

44. As a consequence of the order in E. A. 1030 of 1971 directing delivery of possession to the Official Receiver, the sale ordered in E. P. 362 of 1970 was stopped. E. P. 362 of 1970 is for execution of the decree in O. S. 117/70 on the file of the Subordinate Judge. Vijayawada. That decree is against four judgment-debtors including the petitioner and the insolvent. As we have held that only the insolvent father's property and the insolvent's right of disposal of the son's interest in the joint family property vests in the Official Receiver and not the share of the son as such E. P. 362 of 1970 is maintainable and can be proceeded with for attachment and sale of the son's share of the properties in the joint family and other separate or self acquired properties of the son notwithstanding the adjudication of his father as an insolvent C. M. A. 464 of 1971 is, therefore allowed with costs and execution of the decree in O. S. 117/70 on the file of the Subordinate Judge, Vijayawada, under E. P. No. 362 of 1970 may be proceeded with as indicated above.


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