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Hanumantha Gowd Vs. the Official Receiver - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1946Mad503; (1946)1MLJ247
AppellantHanumantha Gowd
RespondentThe Official Receiver
Cases ReferredChettiar v. Srinivasa
Excerpt:
- - srinivasa fyengar (1936)71mlj707 which was pressed in the lower court must be deemed no longer good law in the light of the bench decision in moony suryanarayana-murthi v......that, when the adjudication of a coparcener of a joint hindu family was annulled, his share of the family property which was vested in the official receiver would revert to the former insolvent as family property and not as self-acquired property. that decision postulates the position that, when a man is adjudged an insolvent, his status in the joint family and his rights in the property of the joint family remain unchanged. it would therefore seem to follow that if by a death in the coparcenary the share of the insolvent coparcener is increased the benefit of the increase will accrue to the official receiver in whom that share is vested.3. it has been contended that because any decrease in the insolvent's share by the birth of a further member in the family would not take away from the.....
Judgment:

Wadsworth, J.

1. The appellant filed a petition under Section 4 of the Provincial Insolvency Act praying for a declaration that the Official Receiver in the insolvency of Hanumantha Gowd was not entitled to the share which would in the absence of any impediment have passed to the insolvent on the death of his brother Bhimana Gowd on the 21st March, 1944. The petitioner is a nephew of the insolvent who was adjudged in 1937. At the time of the adjudication the family consisted of the insolvent, his brother Bhimana Gowd and the petitioner who is the son of a deceased brother. When Bhimana Gowd died in 1944, the result, according to the present petitioner, would be that the share of the insolvent vested in the Official Receiver would not be increased at all by survivorship as a consequence of his brother's death and that the whole of the share of the deceased coparcener would pass by survivorship to the non-insolvent coparcener, the petitioner. This contention has been negatived by the trial Court.

2. Section 28(4) of the Provincial Insolvency Act prescribes that all property which is ' acquired by or devolves on ' the insolvent after the date of the order of adjudication and before his discharge shall forthwith vest in the Court or the Receiver. It cannot now be contended that the insolvency of a coparcener effects a separation of that coparcener from the joint family of which he is a member. He continues to be a coparcener and the decision of Venkataramana Rao, J., in Ldksh-mcman Chettiar v. Srinivasa fyengar : (1936)71MLJ707 which was pressed in the lower Court must be deemed no longer good law in the light of the Bench decision in Moony Suryanarayana-murthi v. Moony Veeraraju : (1945)1MLJ292 to which one of us was a party. In the latter case it was held that, when the adjudication of a coparcener of a joint Hindu family was annulled, his share of the family property which was vested in the Official Receiver would revert to the former insolvent as family property and not as self-acquired property. That decision postulates the position that, when a man is adjudged an insolvent, his status in the joint family and his rights in the property of the joint family remain unchanged. It would therefore seem to follow that if by a death in the coparcenary the share of the insolvent coparcener is increased the benefit of the increase will accrue to the Official Receiver in whom that share is vested.

3. It has been contended that because any decrease in the insolvent's share by the birth of a further member in the family would not take away from the Official Receiver any part of the share of the insolvent as it stood on the date of the adjudication, it must logically follow that any increase of the share of the insolvent would not pass to the Official Receiver. But it seems there is no such logical consequence. The reason why the Official Receiver does not lose that which was vested in him is because the vesting amounts to an alienation which crystallizes the share of the insolvent to which the alienee is entitled as on the date of the adjudication. The reason why the Official Receiver is entitled to any subsequent increase of the insolvent's share is not because the Official Receiver is a coparcener in Hindu Law, but because by Section 28(4) of the Provincial Insolvency Act he is entitled to all property which is acquired by or devolves on the insolvent; that is to say, it is the insolvent who by Hindu Law becomes entitled to the increase of his share and it is the statutory provision of the Provincial Insolvency Act, Section 28(4) which vests that increase in the Official Receiver.

4. It has been argued by Mr. Ramanarasu for the appellant that the words ' is acquired by or devolves on ' are not wide enough to cover the passage of property by survivorship. His argument is that the words ' acquired by' necessarily connote getting by some effort and the words ' devolves on ' necessarily connote the passage of property downwards, as by inheritance. It seems to us that this narrowing of the meaning of these words so as to confine them to what was possibly their original connotation is not in accordance with English usage and it is not in accordance with the view taken by the Federal Court in In the matter of the Hindu Women's Rights to Property Act, (1941) 2 M.L.J. 12 : 4 F.L.J. 1 (F.C.). Both the words in Section 28(4) are very wide words, obviously intended to cover all the ordinary ways in which the estate of the insolvent may be increased from time to time during his insolvency. As, therefore, he continues to be a coparcener and as by the death of his brother the addition to his share may be said to be acquired by him or to devolve upon him, it follows that this accretion vests in the Official Receiver. In this view we dismiss the appeal with costs.


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