1. The plaintiff sued 1st defendant for maintenance; her pauper petition as plaint is dated 15th July 1920. About a month later 1st defendant filed an insolvency petition and was adjudicated insolvent on 24th January 1921.
2. Both the lower Courts have found the plaintiff entitled to maintenance and they have charged it upon property in the hands of the Official Receiver who by way of abundant caution was added as 3rd defendant. The Official Receiver appeals on the following grounds:
3. (1) In the first place, until she obtains a decree the plaintiff has no charge upon the property such as would give her priority over other creditors. This is conceded, but it is contended that inasmuch as plaintiff had filed her suit before the insolvency proceedings commenced she is entitled to establish her rights independently of those proceedings; and if the Courts thought good to allow and to decree her prayer for a charge upon the property, the proceedings subsequent to her institution of the suit constituted no bar to such action.
4. (2) There appears to be no direct authority on the point. It cannot be said that a right to immovable property is directly and specifically in question, so as to make Section 52, Transfer of Property Act, applicable even as an analogy.
5. No doubt plaintiff has specifically scheduled in her plaint certain property which she wishes to be charged, but her right to the property is not directly in question and it cannot be urged a fortiori that in this suit, plaintiff could under Section 52, Transfer of Property Act, ignore an actual alienation and, therefore, she may certainly ignore the vesting of the property in the Official Receiver.
6. (3) Nor does Order 22, Rule 10, Civil P. C., afford any assistance because the 1st defendant was being sued to perform his personal obligation to maintain the plaintiff and no interest which was being proceeded against devolved upon the Official Receiver. The Official Receiver was not really a necessary party to the suit, though probably plaintiff was well advised to add him so as to avoid complications when she came to execute her decree.
7. (4) On behalf of the Official Receiver it is urged that under the Provincial Insolvency Act V of 1920, he is given a privileged position which precludes plaintiff from working out her rights by suit in this manner. For the purpose of countering this argument, the analogy from Section 52, Transfer of Property Act is more useful. Suppose that plaintiff had been directly and specifically suing for a declaration of title to the property scheduled in her plaint, could her right under her decree be affected by the adjudication which was ordered during the pendency of her suit? Such rights would not be affected by an alienation as provided by Section 52, Transfer of Property Act; and does the Official Receiver occupy a stronger position under the statute than an alienee? Could he plead, as he pleads in the second and fourth grounds of this appeal, that the estate having passed into his hands, the plaintiff must make out her claim to the property before him in the insolvency proceedings?
8. The only section to which my attentention has been called as supporting any such plea is Section 28, Provincial Insolvency Act (Act 5 of 1920). But this section is not applicable. It provides, no doubt, that no creditor to whom the insolvent is indebted in respect of any debt provable under the Act shall have any remedy against the property or commence any suit except with the leave of the Court. But a claim for maintenance is not a debt and proceedings had already been commenced. Section 29 is more applicable which provides that any suit may be allowed to continue on such terms as the Court may impose and if the Court choose to decree the suit and to charge the allowance made for maintenance upon the estate as from the date when the suit was commenced, there is nothing in the Provincial Insolvency Act which prevents that being done.
9. No other ground was pressed. The appeal fails on all grounds and is dismissed with costs.