1. These two appeals arise out of two connected applications under Section 19 of Madras Act 4 of 1938. The appellant in both cases is the decree-holder. The respondents in A. S. No. 269 were the petitioners in I.A. NO. 595 of 1939 filed in O.S. NO. 52 of 1933. The respondents in A. S. No. 270 were the petitioners in I.A. No. 596 of 1939 filed in O.S. NO. 53 of 1933. Under both decrees, defendant 1 was the father of the present respondents. The question agitated in the Court below was whether the respondents here could claim the benefit of Act 4 of 1938, having regard to the insolvency of their fathers, defendant 1 in each of the two suits. It is common ground that the decision of the lower Court proceeds on a misunderstanding of the law having regard to the rulings of this Court. Defendant 1 in O.S. No. 52 of 1933, father of the respondents in A. S. No. 269 obtained his discharge in insolvency on 24th September 1938. He was, therefore, an undischarged insolvent when Madras Act 4 of 1938 came into force. Defendant 1 in O.S. No. 53 father or the respondents in A. S. No. 270 , obtained his discharge in insolvency on 11th December 1937. He was therefore a discharged insolvent on the date when the Act came into force, but an undischarged insolvent on 1st October 1937, which would have been a relevant date had he himself been applying for the benefits of the Act with reference to Section 10. On 5th April 1939, defendants 2 and 3 in O.S. No. 52 respondents in A. S. No. 269 filed a suit claiming partition from their father and his brother, defendant 1 in the connected matter, alleging that they began to live separately from the year 1924. With reference to Section 6 of Act 4 as interpreted in our decision in Sundaram v. Subbarao A.I.R. 1942 Mad. 402 it becomes a matter of considerable importance whether the fathers of the two sets of respondents were or were not divided on 22nd March 1938 when Act 4 of 1938 came into force. We wish to point out that Clause (1) of Section 10, which makes 1st October 1937 also one of the crucial dates under the Act, refers only to the qualifications of a per-son who himself applies for relief under Sections 8 and 9 , and it will not affect the status of an alleged agriculturist which is of importance only with reference to the application by his sons for relief having regard to the provisions of section 6.
2. In this Court the appellant has prayed for leave to amend his counter affidavit filed in each of the two applications in the Court below, making an assertion that the father of the respondents was a member of an agriculturist undivided family having another branch. These amendments have been allowed subject to the right of the respondents to traverse the allegations therein in suitable pleadings in the lower Court to which we propose to remand the cases. The lower Court has proceeded on the footing that a person who is an insolvent and to whose estate the provisions of Section 21 of the Act would apply is nevertheless an agriculturist, overlooking the words in that section 'if he would have been an agriculturist within the meaning of this Act but for his adjudication in insolvency.' We have to point out that a person whose estate is vested in the Official Receiver in insolvency cannot, so long as that vesting continues, be deemed to have a saleable interest in that estate. An undischarged insolvent, therefore, normally lacks the basic qualification for the status of an agriculturist under the Act. Section 21, however, applies to the administration of his estate, the same principles which would have applied, had he not been an insolvent and had he still retained a saleable interest in agricultural land, always provided that no dividend has been declared. It seems to us that the effect of the insolvency of the two fathers on the applications preferred by the sons cannot be properly worked out having regard to the provisions of Section 6 of the Act, without a finding on the question whether at the commencement of the Act, the two fathers, 1st defendant in each of the suits, were divided. We therefore remand the appeals to the lower Court for a finding on this question after giving the respondents an opportunity to traverse the allegations in the amended counter affidavit of the appellant and after recording such evidence as may be adduced. Time for finding, three months. One week thereafter for objections.
* * *
(After the return of the finding, the Court delivered the following judgment.)
3. These two appeals were remanded to the lower Court for a finding on the question whether at the commencement of Madras Act 4 of 1938 defendant 1 under the decree out of which Appeal No. 269 of 1941 arises and defendant 1 under the decree out of which appeal No. 270 of 1941 arises, were divided, they being brothers. The two appeals are against decisions on applications by the sons of these two brothers under Section 19 of Act 4 of 1938 for relief on the footing that they are agriculturists. The lower Court has found that the two brothers were not divided at the commencement of the Act, that is to say, on 23rd March 1938. The actual partition asserted by the present respondents in their affidavits was in the year 1919. The lower Court has given good reasons for rejecting this theory of partition in 1919. The documents filed in the case make it quite clear that there was no division at this time and that for many years afterwards the brothers remained divided. An attempt has been made in appeal to suggest that though the two brothers were not divided in 1919 as asserted in the pleadings, the evidence makes out a division in or about the year 1924. We are unable to accept this contention even if it is open to the respondents in the light of the contentions upon which the parties went to trial. It seems to us clear that the two brothers, the fathers of the present contesting respondents, were undivided at the time of the commencement of the Act.
4. Defendant 1 in O.S. No. 52 of 1933 with which we are concerned in appeal No. 269 of 1941 was an insolvent when Act 4 came into force. His properties having vested in the Official Receiver, he had no saleable interest therein and he cannot be deemed to have been an agriculturist. Defendant 1 in O.S. No. 53 of 1933 with which Appeal No. 270 of 1941 is concerned had been discharged in insolvency in December 1937. It is not contended that apart from the insolvency he was otherwise disqualified for the status of an agriculturist. In view of the finding of the lower Court, the position is that there was at the commencement of the Act an agriculturist family consisting of two branches, the head of one branch being a non-agriculturist by reason of the insolvency and the head of the other branch being an agriculturist. It follows from Section 6 of the Act as interpreted by this Bench in Sundaram v. Subbarao A.I.R. 1942 Mad. 402 that the sons of the agriculturist brother will be deemed to be agriculturists and the sons of the non-agriculturist brother will be deemed to be non-agriculturists. It follows that Appeal No. 270 of 1941 which arises out of the application by the sons of the agriculturist brother has to be dismissed with costs. Appeal No. 269 of 1941, which arises out of the application by the sons of the non-agriculturist brother, is allowed with costs throughout and the application for relief under the Act is dismissed.