Chandrasekhara Aiyar, J.
1. The plaintiff is the appellant in this second appeal. He filed a suit for partition and for possession of his half share in the properties after setting aside certain alienations. The first defendant is his father who was adjudicated an insolvent on 25th June, 1935. The Official Receiver, Coimbatore, is the second defendant. The sixth defendant is the plaintiff's brother. The fourth defendant claims the properties comprised in this second appeal, which are described in item 1 of the B schedule, under a purchase by him from the Official Receiver on 18th December, 1935. The plaintiff states that the property is joint family property belonging to him and the father and that he is entitled to a half share therein, and that the Official Receiver could not sell his half share to the fourth defendant. The District Munsiff accepted his claim and gave him a decree for a one-third share as there were two other co-parceners, namely, the father and the sixth defendant. On appeal by the fourth defendant, the learned District Judge of Coimbatore dismissed the plaintiff's suit holding that the property was not joint family property but was the self-acquisition of the father, that the plaintiff's title was adjudicated upon and finally decided against him in the proceedings that took place in the insolvency of the father and that the suit should have been brought within one year from the date of the order of the High Court dismissing the plaintiff's civil revision petition against the order made against him in the insolvency proceedings.
2. No attempt has been made on the side of the respondent to support the view that the suit is barred by limitation under Article 11(A) of the Limitation Act.
3. The conclusion of the learned District Judge, differing in this respect from what the District Munsiff found, that the property could not be held to be joint family property is based on reasoning which cannot be accepted, as it is mostly speculative in nature. The first defendant, who was the father, was in possession of a number of items of properties which were dealt with as joint family properties in a partition between him and the plaintiff on the one hand and Periya Subbaya Goundan, a son by a pre-deceased wife on the other. The partition deed is Ex. P (1) dated 3rd August, 1928. Half of the suit property had been purchased by the father under Ex. D-14 on 27th November, 1927. There was a sale deed in his favour and another Marudachala. The other half was bought by the father under Ex. D-16 on 50th January, 1929. The half share that was purchased prior to the partiton deed is dealt with as joint family property in the partition deed and is allotted to the share of the father and the present plaintiff. The fact that Periya Subbayya Goundan stated on the previous occasion when he was examined in the insolvency proceedings that he did not get any share in the property is of no significance whatever; nor is the circumstance that the father borrowed money for purchasing this property either in 1927 or 1929. He was apparently the managing member of the family and an acquisition by him of property when he occupied that position with the aid of borrowed moneys cannot be said to be a self acquisition straightaway without any further proof or material. These, however, are circum, stances on which the learned Judge has relied for his conclusion that the property is the self acquired property of the father and not joint family property as contended by the plaintiff. Whether the acquisition under Ex. D-16 of the other half share, which was after the date of the partition, would stand on a different footing is another matter.
4. When the purchaser from the Official Receiver sought to take possession he was obstructed by the sons. He applied to the Court in I.A. No. 70 of 1936, in I.P. No. 308 of 1934 for delivery of possession after removal of the obstruction. The application purported to be under Section 5 of the Provincial Inslovency Act, and Order 21, rules 95 and 97, Civil Procedure Code. The Subordinate Judge, who heard the application, came to the conclusion that the properties were the self acquisitions of the respondent (father) and ordered delivery of possession. For reaching this conclusion he gave certain reasons. He stated that it was prima facie view that he was taking on the evidence before him and referred the sons to a regular suit for establishing the right set up by them to the properties. This order was upheld by the District Judge (Mr. Shahabuddin) on appeal. He did not allow the partition deed to be filed on the ground that its production was at a late stage of the case and no adequate explanation had been given for the delay and that he did not consider its admission necessary for deciding the question at issue before him. On the evidence before him he saw no reason to differ from the Subordinate Judge and added, ' As he has pointed out in his order, if the appellants have got any case they may file a suit '. In dismissing the revision petition against this order filed under Section 75 of the Act, Burn, J. said, 'Even if the contention of the petitioner (that the procedure followed by the insolvency Court was wholly wrong) are accepted, the findings of fact are such that the adoption of the correct procedure would have led to the same result. For this reason in the exercise of my discretion I decline to interfere in revision and dismiss this petition with costs.
5. It is contended for the appellant that the view taken by the learned Judge that this order in insolvency concludes the matter by reason of Section 4 of the Insolvency Act is wrong for several reasons : firstly, the jurisdiction of Section 4 was never invoked and there was as a matter of fact no decision on title given by the Court; secondly, that the Court itself stated that the claim by the sons should be decided by a separate suit; and thirdly, that it was open to the Court to leave the question open in this manner. That the petition was not filed under Section 4 is obvious as it refers only to Section 5 of the Provincial Insolvency Act and Order 21, rules 95 and 97 of the Civil Procedure Code. It also seems to be clear that there was no intention to invoke the jurisdiction of the Court under Section 4 or under Section 56(3) of the Provincial Insolvency Act. There is little doubt on the authorities as they stand at present. See Ramaswami Chettiar v. Ramaswami Iyengar (1921) 42 M.L.J. 185 : I.L.R. 45 Mad. 434 referred to and approved in Vandarguzal Achi v. South India Corporation (1944) 2 M.L.J. 52 : I.L.R. (1945) Mad. 10, that the Court could have adjudicated on the question of title and it is difficult to hold that there was no such adjudication. The Court, as pointed out already, decided before directing possession to be given to the purchaser, that the properties constituted the self acquisitions of the father. This decision might have been rendered on imperfect 'materials and might have been based on what was called a prima facie view of the facts; but the decision was still reached, and it is only because it was held that the sons had no interest in the property that their obstruction was ordered to be removed and possession was given to the purchaser. It is true that the Court thought that a separate suit would lie and this question of title may be agitated fully there; but this opinion expressed by the insolvency Court cannot affect the rights of parties. As has been held more than once, if there is a final and conclusive adjudication by a competent Court of any issue between the parties, a mere direction by that Court that another proceeding might be taken for having the point more adequately considered and decided is of no avail, when we have to consider a plea of res judicata. A decision under Section 4 of the Provincial Insolvency Act is final and conclusive against the partition. As indicated above, the order made by the insolvency Court and affirmed on appeal and in revision cannot be attributed to any other jurisdiction than the one conferred on the insolvency Court under Section 4. We cannot assume after all that has been done, that everything was without foundation and wholly wrong and that it is open to the parties to re-agitate their rights in fresh proceedings to be taken.
6. The result is unfortunate so far as the plaintiff is concerned, but it cannot be helped. Possibly this is one of those cases where the father is trying his best after a general wreck and ruin to see if something can be raised, for asking his sons to assert their rights.
7. In any event the plaintiff is bound by the mortgage created over the property and which the fourth defendant has paid off in pursuance of the obligation undertaken by him in connection with the safe from the Official Receiver. Mr. Veera-raghavachari for the appellant had to concede this liability.
8. The second appeal is dismissed but without any order as to costs in this Court, having regard to the fact that the suit was filed by the plaintiff-appellant at the suggestion of the insolvency Court. No leave.