Abdur Rahman, J.
1. Six alienations were effected by one Nagappa for himself and as guardian of his minor son Subramaniam, his minor brother Srinivasa Mudali, his minor cousin Govindaswami Mudali and by his adult brother Elumalai (who were all members of a joint Hindu family) in August, 1932 (Ex. VIII and Ex. IX), in March, 1933 (Ex. VI) and in May/1933 (Ex. IV, Ex. V and Ex. VII). Out of these, the alienations covered by Ex. VIII and Ex. IX are substantial The consideration for the transaction embodied in Ex. VIII is stated to be . Rs. 22,500 and for the one contained in Ex. IX a sum of Rs. 6,000. Nagappa' was adjudicated insolvent on a creditor's petition presented on the 21st June 1933. Six applications were made by the Official Receiver, Chittoor to annul these alienations. He asked for these sale-deeds to be set aside both on the ground that they were nominal transactions, (not being transfers for consideration and in good faith) and on the ground that they fell, in any case, within the mischief of Section 54 of the Provincial Insolvency Act, as they were brought about with the object of giving fraudulent preference to the alienees who were closely related to the insolvent. These questions were considered in detail by the learned Subordinate Judge of Chittoor and as he was of opinion that the alienations were not. bona fide and the intention of the parties could not have been to convey any title in favour of the alienees, he allowed the Official Receiver's applications and annulled the alienations evidenced by Exs. IV to IX. The alienees appealed to the District Judge of Chittoor, but without success. Four of the alienees, i.e., those in whose favour Exs. VIII, IX, IV and VII were executed have come up in revision. The alienations covered by Exs. V and VI and said to have been effected for Rs. 1,700 and Rs. 3,000 respectively are thus no longer in issue.
2. It appears that Nagappa's family had been carrying on a yarn business in partnership with R. W. 7 in whose favour the sale-deed Ex. VIII was executed. As the learned District Judge was not satisfied that the obligations between R. W. 7 and Nagappa's family had been fully worked out at the time when Ex. VIII was executed and as he was of opinion that the transaction contained in that sale- ' deed was a nominal one, he granted leave to R. W. 7 'to prove before the Official Receiver by a full disclosure of all the accounts, of the capital advanced and of the debts due to the family, for any sum that may be found due to him on this family yarn business'. Similarly, the transaction covered by Ex. IX was not upheld by the District Judge as he was of the view that R. W. 1 (the alienee under that sale-deed) was 'acting only as the agent of the insolvent,' did not intend 'to take family property from the insolvent his cousin' and 'there was no good faith in a transaction that had for its object the concealment of a large amount of property from the creditors out of all proportion to the debts intended to be discharged thereby.' But as the learned Judge was not sure that R. W. 1 had not paid even a small fraction of consideration to Venkatasubbiah Chetti towards the discharge of Nagappa's debts, he permitted R.W. 1 to prove the payment made by him if the debt due by Venkatasubbiah Chetti were really true. In regard to the other alienations, the trial Court's order was not modified.
3. On the basis of these modifications by the learned District Judge, it is contended by Mr. Rajah Aiyar, learned Counsel for the petitioners, that the transactions could not have been set aside as sham or fictitious unless the learned District Judge was of opinion that they were brought about without any consideration at all. In fact, he urged that the findings of the learned District Judge were to a certain extent inconsistent. He argued that in any case it was incumbent upon the lower Courts to come to a definite finding whether any consideration had been due to or paid by the vendees when these sale-deeds were executed in their favour and not to annul them if they were of opinion that the sale-deeds were executed for genuine consideration. ' I am not, however, impressed by that contention. The real question for the lower Courts to decide was whether the transactions were either wholly or at least to the extent of Nagappa's share or of what he could dispose of intended to be genuine, that is to say, whether the title to the properties had been to that extent intended to be conveyed to the alienees. If that was not the intention,, the mere fact that the alienee happened to be a creditor or that one of the alienees, had paid some money to one of the creditors of the insolvent under his direction would not be enough. In the first case, the alienee's debt would not be extinguished; in the other, if any money was advanced by the alienee, he would be entitled to be reimbursed by or on behalf of the insolvent. The question whether the transactions were of a genuine character or otherwise is a question of fact and once it has been determined by both the Courts on a full consideration of all the facts and circumstances it is not, in the absence of anything that would vitiate that finding, possible for me to interfere in revision.
4. The main legal contention on which attention has been devoted by learned Counsel for the parties is whether having regard to this conclusion, the transactions have to be set aside only to the extent of the insolvent's share or of what he had disposed of himself both on his behalf and on behalf of the minors or as a whole. It has been contended by learned Counsel for the petitioners that it is impossible for the Court to set aside the alienations as a whole,
(a) as Elumalai was, being an adult, himself a parry to the sale-deed and the lower Courts had no jurisdiction to set aside the alienation so far as his share was concerned when he was not even a party to the insolvency proceedings;
(b) as whatever may be said in regard to the share of the insolvent's son which would be liable to be sold for the debts of the insolvent if they were not illegal or immoral and. in respect of which the insolvent had a power of disposal, the same cannot be said in regard to the shares of the others (his minor brother and minor cousin) whose shares were not liable to be sold by the insolvent as they were under no pious obligation to discharge his debts and as to which he had the power of disposal only when the debts for which these alienations were effected were found to have been incurred for family benefit or necessity;
(c) as the powers of an insolvent (who happens to be a manager or kartha of a joint family) to dispose of the right title and interest of such other members of his family in the family property as did not happen to belong to his sons cannot vest in the Official Receiver. But if even if this were not so. the Official Receiver cannot. it was urged by learned Counsel for the petitioners, have the power to recover the property conveyed by the insolvent. And this is because the power of disposal has been exercised by the insolvent and exhausted. To hold otherwise would amount to conferring a right on the Official Receiver to recover the property with the object of exercising his power of disposal. The right to recover joint family property could only vest, according to Mr. Rajah Aiyar, in the members of the joint family and not in the Official Receiver; and
(d) as it was not open to Nagappa to derogate from his own grant and to contend that the alienations by him on behalf of the minors were infructuous and in so far as the Official Receiver cannot be held to have any larger powers at least in this respect, he could not attack the alienations on behalf of the minors either.
5. It was, on the other hand, contended by Mr. Sitarama Rao, learned Counsel for the respondent, that the Insolvency Court might have had a limited power under (section 53 or 54 of the Provincial Insolvency Act but had a much wider power under Section 4 of the Act. If the transactions were sham and fictitious, the insolvent's power of disposal over the property purported to have been alienated under Ex. IV and Exs. VII to IX remained intact and the Insolvency Court as competent to decide the question that the properties dealt with under these documents still continued to vest in the joint family and to remove the cloud which' had come to rest on them not only by Nagappa's action but by the action of Elumalai as well. The manager's power to deal with the joint property was according to learned Counsel for the respondent, itself 'property' within the meaning of Section 2 (d) of the Insolvency Act and must be held to vest in the Insolvency Court or the receiver under Section 28 (2) of the Act. As for the alienation effected on behalf of the minors, it was urged that in so far as they were members of a joint Hindu family, it was not possible for Nagappa to act as their guardian and he must be held to have acted in his capacity as a kartha of the family. And if the alienation is found to be sham, it has got to be so declared not only to the extent of Nagappa's individual share in the joint family property but to the extent of the other's share which he attempted to do away with in his garb as a guardian. As for the participation of Elumalai in these alienations, he contended that an alienation before partition by a junior member of a joint Hindu family of his share in the property for value even in provinces like Madras where he was entitled to dispose of it was not an alienation of his share in the family property but only that of an equity as held by a Division Bench of this Court in Nanjaya Mudali v. Shanmugha Mudali (1913) 26 M.L.J. 576 : 38 M. 684, and by a Full Bench in Koduru Venku Reddi v. Mugunta Venku Reddi (1926) 52 M.L.J. 387 : 50 M. 535, and if the alienations are found to be sham and fictitious and his share continues to be liable for the debts of the family, they must fail in their entirety and could not be validated either wholly or even partially as the only adult number of the family had joined the kartha in effecting them. It was urged that his participation in the alienations in question was merely with the object of showing his concurrence to the valid family purpose for which they were being effected and should not be taken as proof of the fact that he was transferring his own share in the joint family property as distinct from the shares which Nagappa had been trying to alienate on behalf of himself and for the other minor members of his family.
6. The property of the insolvent vests in the Court or in the Receiver on the making of an order of adjudication under Section 28 (2) of the Provincial Insolvency Act. .The term 'property' is denned in Section 2 (d) of the Act and is stated to include 'any property over which or the profits of which any person has; a disposing power which he may exercise for his own benefit.' It would therefore! follow that the 'disposing power' possessed by a person which 'he may exercise for his own benefit' would vest in the Court or in a receiver under Section 28 (2) s of the Act. It is unnecessary in my opinion to think of cases in which a person cannot exercise the disposing power. If he can in a given set of circumstances exercise that power for his own benefit, it would fall within the term 'property' and would vest in the Court or Official Receiver. There can be no manner of doubt that a Hindu father can dispose of his son's property for the payment of his own debts if they were not immoral or illegal and for which his own share of the joint property or his own personal property was liable to be sold. The payment of such debts would be obviously for the father's benefit.
7. There is a very learned and elaborate discussion as to the meaning of the term 'property' by a Full Bench of five Judges in Anand Prakash v. Narain Das Dorilal I.L.R. (1930) All. 239, and I find myself in respectful agreement with what was the majority view expressed by Mr. Justice Mukerji in his leading judgment. The facts mentioned by the learned dissenting Judge that 'the undivided interest of the sons in the joint ancestral property is not the property of the insolvent' or that a father 'has no absolute power of disposal and can exercise it only when 'certain conditions are fulfilled or that he cannot make a gift of the property in whole or in part in praesenti' or that 'he cannot transfer his undivided share by testamentary devise' are, in my opinion, irrelevant. Nor is the fact that the Provincial Insolvency Act happens to be 'a general statute applicable to Hindus, Mohammedans, Christians, Buddists and Sikhs' of any consequence. What does it matter if anyone of these is possessed of certain powers under his personal law which he can exercise in respect of property belonging to his son for his own benefit but which a person following another faith does not possess? It is unnecessary that every insolvent of every faith must have the same kind of property. I fail to see what bearing have the questions whether a Hindu father is 'competent to sell that power and can the purchaser exercise the power in his own account' on the point whether the disposing power falls within the definition of the term 'property' given in Section 2(d) of the Act. The disposing power of a person would fall within that term whether he is competent to sell it or not. Alienability of that power has not been stated to be the determining factor in the definition of that term but the capability of exercising the same for his own benefit is the test. Moreover, one should not confuse a right of ownership with a power of disposal. They are two different things. A right of disposal is ordinarily involved in the' right of ownership but the possession of a mere right of disposal does not necessarily indicate ownership. If the distinction between the right of ownership in the share of the property which a. Hindu son undoubtedly has before partition and the father's power of disposition of his son's share were to be kept in mind, the decision of their Lordships in Sat Narain v. Behari Lal (1924) 47 M.L.J. 857 : I.L.R. 6 Lah. : L.R. 52 IndAp 22, would be easily understandable. The mere fact that the father is found to possess a disposing power does not take away by itself the right of the sons from out of the joint property and it was on the : basis of that ownership that the son's right of premption was allowed to prevail in that case. 'Before the exercise of the disposing power which Rai Bahadur Sri Kishendas possessed, his son, who was the plaintiff in that suit, could not be said to have lost his right in the property on the basis of which the suit for pre-emption was instituted. It was in that connection that their Lordships pointed out in their judgment that the father's power of disposal of joint property was not 'absolute but conditional on his having debts which are liable to be satisfied out of that property.' They did not hold that the disposing power of the father (which can only be exercised on certain conditions) would not on his insolvency vest in the receiver but their decision was only to the effect that the share of joint property which the plaintiff had could not be held to have vested in the Official Receiver on his father's insolvency so as to deprive him of his right to bring the suit for pre-emption.
8. My attention was drawn to a decision of Sundaram Chetti, J., in A.L.S P.B.L. Subramaniam Chettiar v. Subbaraya Goundan : AIR1935Mad246 , where the learned Judge held that the alienation on behalf of the sons could not be viewed as a transfer by the insolvent for the purposes of Sections 53 and 54 of the Insolvency Act. But the learned Judge did not take the definition of the word 'property' into consideration and (here is nothing in that judgment which comes into conflict with what I have stated above. The learned Judge was guided by the only consideration that the transfer by the insolvent was different from the transfer by him of his son's share, [laving given a reply to that question, he assumed that on the annulment of one, the other would not follow as a matter of course. If the transaction was sham or fictitious and if the title to the property was not intended to be conveyed by the father either on behalf of himself or on behalf of his sons, the property would have continued to vest in the father and in the sons in spite of its apparent but fictitious transfer and as long as the property remained in the insolvent and. his sons, the father's right of disposal over his son's share would remain intact Raoji Bapuji Pandarkar v. K.L. Bawachekars : AIR1935Bom316 . I am inclined to respectfully accept the view taken by my esteemed brother Pandrang Row, J., in S.P.P.L. Palamiappa Chettiar v. Official Receiver, Madura : AIR1937Mad791 , and agree with the observation that if a transfer is made by an insolvent, the whole of it could be, in certain circumstances, annulled by the Court. I have looked through the judgment' in (1939) 2 M.L.J. 43 (short notes) but it gives no reasons and may be supported, on the ground (as I shall show later) that the alienation was effected in that case by a person on behalf of his minor brother. This makes a considerable difference 'in my judgment. The only other decision which was brought to my notice was that of Panckridge, J., in Re Tilakchand Koyal, Ex-parte the Official Assignee 46 C.W.N. 256. The judgment is very brief and apriears to have been based on a misapprehension of the decision in Sat Narain. v Beharilal (1924) 47 M.L.J. 857 : 52 I.A. 22 : I.L.R. 6 Lah. 1. It is now well settled that the disposing power of a Hindu father in regarded to the property of his sons vests on his insolvency in the Official Receiver. (See T. S. Balavenkata Sitarama Chettiar v. Official Receiver, Tanjore : AIR1926Mad994 ; Lakharaghula Sundaramma v. Desika Venkatachalamiah A.I.R. 1939 Mad. 438, and lastly the recent decision of the Privy Council in Sat Narain v. Sri Kishen Das (1936) 71 M.L.J. 812 : 63 I.A. 384 : I.L.R. Lah. 644. I would therefore hold that in the absence of a valid alienation by Nagappa, Subratnaniam's share continued to vest in him (i.e., Subramaniam) and the right to dispose of that share came, on Nagappa's insolvency, to vest in the Official Receiver.
9. The next question to decide is whether the power of the insolvent to deal with the share of his minor brother and minor cousin would also fall under Section 28. It is not easy to agree that the manager's power to dispose of the property for a family benefit or necessity can also be held to be covered by the definition of the word 'property' in Section 2 (d) of the Act, although I find that an eminent Judge of this Court was inclined to take that view in Rangayya Chetti v. Thanikachala Mudali I.L.R. (1895) Mad. 74. The learned Judge appears to have made no distinction between the disposing power of a father and that of a manager in dealing with the coparcenary or family property. After holding that the father could dispose of the family estate for his own benefit at least prima facie and subject only to the rights on which the sons could rely in particular cases, he proceeded to observe as follows:
Nor as to the 2nd defendant am I able to see any sound distinction in principle between his case and that of the case of the other defendants just referred to. For if the son's share is property which the father has power to dispose of for his own benefit in the restricted sense explained by West, J., . . . . how can the share of any other undivided coparcener which the managing member can convey for debts incurred by him for legal necessity, be treated different.
The answer to that question is, in my opinion, to be found in the definition of the word 'property'. A father's power of disposal falls within the term 'property' as he can exercise it for his own benefit but the manager's power to dispose of the family property would not be so as he could not exercise it for his own benefit but only for the benefit of the family. And in this view I am supported by what Mr. Srinivasa Aiyangar has stated in his edition of Mayne's Hindu Law at page 457 in paragraph 350-a. It is true that the observations in the Official's Assignee of Madras v. Allu Ramachandra Aiyar : (1922)43MLJ569 , are rather general and refer to the insolvency of a managing member of a joint Hindu family but it must not be overlooked that the learned Chief Justice and Coutts-Trotter, J., (as he then J was) were only called upon to decide whether the disposing power of the father, so far as it could be exercised by him for his own benefit did not vest in the Official Assignee and if so, whether the latter was not as a representative of the insolvent, entitled to possession of the joint property. In view of the facts of that case, the expression 'the managing member' must be held to refer to the father which he undoubtedly was and the word 'member' to the sons. The decision in the Official Assignee, Madras v. Allu Ramachandra Aiyar : AIR1929Mad166 , could not be held to be against the meaning I am inclined to assign to the term 'property'. I am aware of the decision in the Official Receiver, Anantapur v. Ramacharidrappa : AIR1929Mad166 , where Devadoss, J., had on a difference between Odgers, J. and Curgenven, J., taken the view that the power of a manager to dispose of joint family property for debts vests in the Official Receiver. But this was mainly because of the decision in Rangayyq, Chetti v. Thanikachala Mudali I.L.R. (1895) Mad. 74, to which I have already referred--although if he had considered himself free to decide, he would have taken the extreme view that even the power of a Hindu father to dispose of his son's share did not vest in the Official Receiver. I find nothing however, restraining me from giving effect to the conclusion at which I have arrived on an interpretation of Section 2 (d) and Section 28 of the Provincial Insolvency Act. The decision in Shankaranarayana v. Official Receiver, South Kanara (1932) 36 L.W. 581', does not touch the question under consideration as the learned Judge had only decided in that case that an Official Receiver was, on a father's insolvency, entitled to be in joint possession -with his sons and had a right to grant lease and collect rents even in respect of the son's share for the purpose of paying his father's debts.
10. It may be stated here that one of the contentions advanced by learned Counsel for the petitioners was that inasmuch as Nagappa had purported to alienate the property on behalf of his minor brother and cousin as their guardian and not as a kartha of the family, it will be wrong to treat that transaction as having been effected by him in his capacity as a kartha. Reliance was placed in this connection on the following observation of a Full Bench decision of this Court in Narayana Aiyar v. Venkataramana Aiyar I.L.R. (1901) Mad. 220,
But it seems clear that, when a creditor deals, not with the managing member only of a family, but with all the members of the undivided family as co-obligors and on that footing enters into a transaction thereby avoiding any question as to whether the transaction was really for the benefit of the family he cannot rely upon an acknowledgment of the liability, made by one of them, as an acknowledgment duly made on behalf of all the co-obligors, by reason only that the person acknowledging is in fact the managing member of the family consisting of the co-obligors.
I am not prepared to accede to this contention as Nagappa could not legally act as a guardian on behalf of his minor brother and cousin (see Gharib Ullah v. Khalak Singh (1903) L.R. 30 IndAp 165 : I.L.R. All. 407,) and in so far as he happened to be kartha of the family, his description as a guardian in the sale-deeds will have to be characterised as erroneous although found to be immaterial (Kona Adinarayana v. Dronavalli Venkatasubbiah : AIR1937Mad869 , and Dhapo v. Ramachmdra I.L.R. (1934) All. 374).
11. It has been concurrently found by both the lower Courts--and the finding has been accepted by me--that Nagappa did not intend to convey any title to the property by these sale-deeds. It must therefore be held that no title was conveyed by him on behalf of his minor brother and minor cousin as well. These minors must therefore be found to be owners of their shares in the joint family property. But as I have found that the disposing power of a manager does not fall within the I definition of the term 'property' as denned in the Provincial Insolvency Act and i does not therefore vest in the Official Receiver, he is not entitled to ask for an I annulment under Sections 53 or 54 of the Act.
12. The question then to decide is whether the Court would be, in the circumstances, justified in dealing with the minors' shares in the joint family property* if the debts due by Nagappa were such as would be binding on the family. The applications made by the Official Receiver to the Insolvency Court were under .. Sections 4, 53 and 54 and it is obvious that in view of the interpretation that I have placed on the term 'property', the alienations by Nagappa, although ineffectual, could not be annulled by the Court under Sections 53 and 54. It was contended by Mr, Sitarama Rao that the terms of Section 4 are wide enough and the insolvency Court has under that section
full power to decide all questions whether of title or priority, or of anything whatsoever . . . which may arise in any case of insolvency coming within the cognizance. of the Court or which the Court may deem it expedient or necessary to decide for the purpose of doing complete justice or making a complete distribution of property in any such cases.
Learned counsel for the petitioners on the other hand urged that the insolvency Court would have no jurisdiction to go into the alienations effected by Nagappa on behalf of the minors. He cited the decision in Palaniappa Muaali v. Official Receiver, Trichinopoly (1916) 32 M.L.J. 84, in support of his contention. But that case has, in my opinion, no application as the sale in that case was not made by the insolvent alone but also by his father and grandfather who were not adjudicated as insolvents. It was only in regard to the sales by the insolvent's father and grandfather that the Court was held to have no jurisdiction. Whatever may be the effect of this decision in regard to Elumalai's alienation, the fictitious sales by Nagappa as a kartha on behalf of the minor members stand on a different basis. If there had been no alienations of their shares at all so far, their shares would be liable for the debts incurred by Nagappa for the family benefit or necessity. And if Section 4 of the Provincial Insolvency Act provides a machinery for the expeditious disposal of all matters arising directly or indirectly, in the course of the administration of the estate and invests the insolvency Court with the power to decide all questions whether of title or priority or of any nature whatsoever which arise for its determination, as in my judgment it does, there is no reason why this question should not have been determined by the Insolvency Courts. There are a number of decisions in which the Courts have exercised the jurisdiction under this or under the corresponding Section 7 in the Presidency Towns Insolvency Act. (See Doriappa Aiyar v. The Official Assignee, Madras (1921) 42 M.L.J. 141, Akella Ramasomayajulu v. Official Receiver, Godavari (1926) 23 L.W. 80, Anwar Khan v. Muhammad Khan I.L.R. (1929) All. Official Assignee, Madras v. Narasimha Mudaliar : (1929)57MLJ145 Palanivelu Odayar v. Official Receiver, West Tanjore : (1931)61MLJ763 , A.N. Ramachandra Iyer v. Official Assignee, Madras (1930) 61 M.L.J. 66 : I.L.R. Mad. 739, Biseswara Chauduri v. Kanhai Singh I.L.R. (1931) Pat. 9, and Badilam Narayanamma v. Neti Venkatasomayalulu (1934) 67 M.L.J. 616).
13. There is no force in the contention that it is not open to the Official Receiver to attack the sale-deed executed by Nagappa as Nagappa himself could not derogate from his own grant and could not contend that the alienations on behalf of the minors were infructutous. The Official Receiver is not always a representative of the insolvent only. He has more often than not to fight out the insolvent and to represent the body of creditors frequently. He Could certainly show that the debts due by Nagappa were of such a nature as would be binding on the other minor members and the device adopted by the insolvent in attempting to do away with their property did not have the desired effect.
14. As for Elumalai's share however, I am of opinion that since he had disposed of the property himself, the alienations by him could not be, as held in Palaniappa Mudali v. Official Receiver, Trichinopoly (1916) 32 M.L.J. 84, challenged in insolvency proceedings although the purchaser of his undivided share could not have got anything more than an equity to enforce his rights in a suit for partition and would only take the share when partitioned subject to such liabilities as his vendor might have been liable to discharge before the date of his alienation.
15. For the above reasons, I must accept the revisions and refuse to set aside the alienation in regard to Elumalai's share which is admitted by the parties to be one-sixth. As to the rest the revisions fail and are dismissed.
16. Since the petitioners have only partially succeeded the most appropriate order appears to be, in the circumstances to order them to take and to pay proportionate costs according to their success and failure in this Court, i.e., five-sixths and one-sixth.