Frederick William Gentle, C.J.
1. In this Letters Patent Appeal, from a judgment of Somayya,, J., the power of the Official Receiver in insolvency under the Provincial Insolvency Act arises with respect to the sale of immoveable property of members of a joint family, a father and his four sons, the father being an insolvent. The Official Receiver sold some immoveable property by public auction in July 1941. What was purported to be sold was the entire interest in the property. It was property of which the insolvent, as a member of the joint family, was not the absolute owner, but was possessed only of his share, namely, it would appear, one-fifth. The property so sold was conveyed by the Official Receiver to the purchaser by a sale deed, dated the 7th July, 1941. The deed itself purports to convey the entire interest in the property. At the time of the sale it was ordinarily believed that the power, held by a manager of a joint Hindu family and also by a father, who was a member of a joint Hindu family with his sons, to sell the family property in circumstances permitted by the Hindu law devolved on the Official Receiver, under the Provincial Insolvency Act as undoubtedly it does pursuant to Section 52(2)(b) of the Presidency Towns Insolvency Act. In Rama Sastrulu v. Balakrishna Rao (1942) 3 M.L.J. 457 : I.L.R. (1943) Mad. 83 it was held by a Full Bench of this Court that the right of the manager of a joint Hindu family to sell the family assets does not devolve upon the Official Receiver in an insolvency under the Provincial Insolvency Act. The principle of that decision was extended to a Hindu father in Virupaksha Reddi v. Chanalal Siva Reddi (1943) 3 M.L.J. 87 .
2. In the present instance the insolvent was the father of defendants 2 to 5 in the suit and immoveable property was sold in which the insolvent was, as stated, only entitled to a fifth share and the above-mentioned defendants to the other four-fifths. In the trial Court the learned District Munsiff of Yellamanchilli held that the purchaser had not acquired the interests of the sons. On appeal to the learned District Judge of Vizagapatam that decision was reversed. But on appeal to this Court Somayya, J., reversed the judgment of the District Judge and restored that of the District Munsiff. This Letters Patent Appeal is preferred by the purchaser against the decision of Somayya, J.
3. It is beyond doubt that, as the law at present stands, the Official Receiver in an insolvency under the Provincial Insolvency Act has no power to sell property which is not the sole property of the insolvent (the father in this case) and cannot convey the title of all the members to the purchaser. It follows that, in the present instance, the sale could in no way have affected the right, title and interest of defendants 2 to 5. I agree with the learned Judge that the decision in Abdul Aziz Khan v. Appayasami Naicker (1903) L.R. 31 IndAp I : I.L.R. 27 Mad. 131 (P.C.) has no application here. In the present instance it is beyond doubt that what was purported to have been sold was the entire interest in the immoveable property. In the case before the Judicial Committee the question arose as to what was intended to be sold.
4. In my opinion this appeal by the purchaser must be dismissed with costs.
5. The respondents (defendants 2 to 5 in the suit) have preferred a memorandum of cross-objections in regard to the order for costs made by Somayya, J., who did not award costs to either party. Defendants 2 to 5 were the appellants before the learned Judge and their appeal succeeded. They were bound to prefer the appeal in order to assert their legal rights and they were successful in their appeal. No suggestion Was, as indeed it cannot be, made that there was any impropriety in their conduct so far as the litigation was concerned. They are successful appellants and the effect of the order is to deprive them of their costs. In my view they were entitled to their costs before Somayya, J., and to that extent the decision of the learned Judge must be varied.
6. The appeal is dismissed with costs and the memorandum of cross-objections allowed with costs.
7. I agree.