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Bawan Das and anr. Vs. O.M. Chiene - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All79; 64Ind.Cas.976
AppellantBawan Das and anr.
RespondentO.M. Chiene
Cases ReferredRangayya Chetti v. Thanika
Excerpt:
.....by which it was sought to establish these two wills, we are not prepared to dissent from his finding of fact. therefore, the learned judges held that questions of this sort do not really arise in insolvency matters and that, for practical purposes, where the father of a joint hindu family, which includes minor sons as well as himself, seeks the protection of the bankruptcy court, be must place all his property at the disposal of the court and of the receiver appointed by the court. we think, therefore, that the question of law as well as the question of fact tried out in the court below must be decided against the appellants......would descend in equal shares to the sons of his predeceased son on one side and bindraban and his minor sons, the appellants, on the other. it would be co-parcenary property in the hands of bindraban and his minor sons. on this the plea taken is that only bindraban's share, amounting at most to 1/4 of 1/2, can be made available for the satisfaction of bindraban's creditors or vested in the receiver for that purpose. a practically identical question was raised before the bombay high court in the ease of fakirchand motichand v. motichand hurruckchand 7 b. 488 : 8 ind. jur. 93 : 4 ind. dec. (n.s.) 294 and a very similar one was also decided by the madras high court in rangayya chetti v. thanika-challa mudali 19 m. 74 : 6 ind. dec. (n.s.) 757. in both cases the view taken seems in principle.....
Judgment:

1. These are two appeals in insolvency. The appellants are the minor sons of the insolvent Bindraban, appearing in the matter under the guardianship of their mother. Certain property which the Receiver desires to make available for the satisfaction of the insolvent's debts was claimed by the appellants, on the ground that it had been conveyed to them by the Will of their paternal grandfather. It may be noted at once that it has been proved, and is not now contested, that the insolvent Bindraban had separated from his father. The said father was supposed to have executed two Wills on one and the same date, by which he left property (dealt with by him as his self-acquired property) to the present appellants, the sons of Bindraban, and to another set of grandsons, the sons of a predeceased son, in equal shares. The two documents were produced and evidence was called before the District Judge to prove them. The District Judge was entirely sceptical as to the genuineness of these documents. There is certainly force in the argument on which he chiefly relies. As they stand, the two papers are somewhat elaborate documents, very carefully written and elaborately attested. If the executant was going to take so much trouble in the matter, it seems a curious circumstance that he should not have got them registered. When in connection with this we take the fast that on each document the executant is supposed to have put his mark in the form of a thumb-impression, and that the thumb-impression is a mere smudge of ink--practically incapable of identification--suspicion as to the genuineness of the document is certainly confirmed, In view of these circumstances and of the strong opinion formed by the District Judge as to the reliability of the evidence by which it was sought to establish these two Wills, we are not prepared to dissent from his finding of fact.

2. We must pass on, however, to consider a question of law, apparently not raised at all in the Court below but of considerable general interest. If the grandfather, Ram Das, Teli, in fact died intestate and the property in question is to be treated as his self-acquired property, it would descend in equal shares to the sons of his predeceased son on one side and Bindraban and his minor sons, the appellants, on the other. It would be co-parcenary property in the hands of Bindraban and his minor sons. On this the plea taken is that only Bindraban's share, amounting at most to 1/4 of 1/2, can be made available for the satisfaction of Bindraban's creditors or vested in the Receiver for that purpose. A practically identical question was raised before the Bombay High Court in the ease of Fakirchand Motichand v. Motichand Hurruckchand 7 B. 488 : 8 Ind. Jur. 93 : 4 Ind. Dec. (N.S.) 294 and a very similar one was also decided by the Madras High Court in Rangayya Chetti v. Thanika-challa Mudali 19 M. 74 : 6 Ind. Dec. (N.S.) 757. In both cases the view taken seems in principle to be this, that from the date of the adjudication the Receiver takes over all rights in the insolvent's property which the insolvent himself possessed. One of those rights would be to alienate co-parcenary property belonging to himself and his minor sons in satisfaction of antecedent debts incurred by him, provided those debts were not tainted with immorality. Therefore, the learned Judges held that questions of this sort do not really arise in insolvency matters and that, for practical purposes, where the father of a joint Hindu family, which includes minor sons as well as himself, seeks the protection of the Bankruptcy Court, be must place all his property at the disposal of the Court and of the Receiver appointed by the Court. If we may refer to another principle of Hindu Law, we may note that, in the event of a suit for partition by these minor sons against their father, provision would first be required to be made for all debts due by the joint family as such, including debts due by their father,--vide on this point Trevelyan's Hindu Law, Second Edition, at page 355 and the authorities there cited. We think, therefore, that the question of law as well as the question of fact tried out in the Court below must be decided against the appellants. We dismiss these appeals accordingly with costs.


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