Alfred Henry Lionel Leach, C.J.
1. The petitioner's mother Devulapalli Kanchamma, instituted O.S. No. 7 of 1934 in the Court of the Subordinate Judge of Guntur to recover possession of properties which she claimed constituted the estate of her deceased father, Dorbala Narasimha Sastri. Her mother had predeceased her father and she was the only issue of the marriage. She averred that her father had separated from his brothers and on this footing claimed the estate as the sole heir. The lower Court dismissed the suit and Kanchamma then appealed to this Court. During the pendency of the appeal she died and the petitioner applied to be allowed to continue the appeal. This petition is now before us and is opposed.
2. The petitioner is an insolvent and was an insolvent when he filed the petition. He seeks to be allowed to continue the appeal because the Official Receiver has refused to become the appellant. The Official Receiver did apply to this Court on the 12th July for an order directing that he should be brought on the record in the place of Kanchamma, but on the 12th October he withdrew the application as he had not been placed in funds to meet the costs.
3. The petitioner has relied on the rule in Herbert v. Sayer (1844) 5 Q.B. 965 : 114 E.R. 1512 which allows a bankrupt to maintain a suit to recover after-acquired property in the hands of a stranger unless the trustee has intervened. This rule has frequently been applied in India, but the respondents say that as the result of the decision of their Lordships of the Privy Council in Kala Chand Banerjee v. Jagannath Marwari (1927) 52 M.L.J. 734 : L.R. 54 IndAp 190 : I.L.R. 54 Cal. 595 (P.C.) it can no longer be applied. It is, however, not necessary to decide this question, because even if the decision in Kala Chand Banerjee v. Jagannath Marwari (1927) 52 M.L.J. 734 : L.R. 54 IndAp 190 : I.L.R. 54 Cal. 595 (P.C.) has not the effect which the respondents maintain it has. Herbert v. Sayer (1844) 5 Q.B. 965 : 114 E.R. 1512 must now be read in the light of Hill v. Settle (1917) 1 Ch. 319 and when this is done it is clear that the present petition does not lie.
4. In Hill v. Settle (1917) 1 Ch. 319, it was decided that when once a trustee in bankruptcy has intervened in regard to after-acquired property of an undischarged bankrupt that property vests in the trustee and he cannot by withdrawing his intervention divest himself of the property and revest it in the bankrupt. In that case a person had entered into an agreement with the bankrupt under which he had to make payments to the bankrupt and the trustee in bankruptcy gave notice requiring these payments to be made to him. For reasons which it is not necessary to go into, the trustee withdrew the notice. It was contended that as the result of the withdrawal, the original position was restored. The Court of Appeal, consisting of Lord Cozens Hardy, M.R., Warrington, L.J. and Lawrence, J., held that this was not so. Once the trustee in bankruptcy had intervened the property vested in him and remained with him in spite of the withdrawal of the notice. The property being in the trustee, nothing remained in the bankrupt.
5. If the rule in Herbert v. Sayer (1844) 5 Q.B. 965 : 114 E.R. 1512 applies here, we must also apply the rule which has been added to it by Hill v. Settle (1917) 1 Ch. 319. There can be no doubt that the application by the Official Receiver to this Court for an order making him the appellant in the place of the petitioner's mother did constitute an intervention. It was a far greater act of intervention than that in Hill v. Settle (1917) 1 Ch. 319. The Official Receiver having intervened and being unable to withdraw, he alone could maintain the appeal.
6. It has been suggested that the petitioner does not ask to have his name brought on the record as the owner of the property, but merely as the legal representative of his mother. But this is not the case. His right in the property in suit is based on the claim that he is the actual reversioner of the last male owner, his grandfather. Therefore he desires to continue the appeal in his own right, not through his mother. His rights in the property, whatever they are, have devolved on the Official Receiver and the law does not permit him to maintain the appeal.
7. The application must therefore be dismissed with costs.
8. I agree that the insolvent is not entitled to continue this appeal; but I wish to make one reservation to avoid a possible misapprehension. I have felt some difficulty in this case, on account of the fact that the petitioner is certainly within the definition of the expression 'legal representative' given in the Code of Civil Procedure, though in strict law he does not claim under his mother. As pointed out by my Lord, the petitioner's claim is substantially for his own benefit and not for the benefit of his mother's estate. I wish to guard myself against being understood as deciding that the same principles as are laid down in this case will be applicable even to cases where a 'legal representative' in the strict sense is applying to continue an appeal or a suit preferred or instituted by his predecessor in title. In such a case, the consideration applicable to a suit instituted by the insolvent himself will not apply in their entirety, because so far as that particular litigation is concerned, the legal representative will only be taken to assert or safeguard the title of the original party. The decision in that case of a question like the present will depend upon the scope of the words in Order 22, Rule 8, of the Civil Procedure Code, namely, whether the proceedings which the legal representative who has been adjudged insolvent wishes to continue can be regarded as a proceeding which the assignee or Receiver in the insolvency of the legal representative might maintain for the benefit of his creditors. I do not read the judgment in Kala Chand Banerjee v. Jagannath Marwari (1927) 52 M.L.J. 734 : L.R. 54 IndAp 190 : I.L.R. 54 Cal. 595 (P.C.) as concluding this question.
Pandrang Row, J.
9. I agree with my Lord the Chief Justice and I have only to add that whether the rule in Herbert v. Sayer (1844) 5 Q.B. 965 : 114 E.R. 1512 applies to mofussil insolvencies is not being decided by us, and that our decision rests mainly, if not entirely, on the decision in Hill v. Settle (1917) 1 Ch. 319 by the Court of Appeal in England.