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Bondalapati Kanyaka Parameswaramma Vs. Mandava Venkataramayya and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in164Ind.Cas.853; (1936)71MLJ294
AppellantBondalapati Kanyaka Parameswaramma
RespondentMandava Venkataramayya and ors.
Cases ReferredCoimbatore v. Arunachalam Chettiar
Excerpt:
provincial insolvency act (v of 1920), section 28 - decree against hindu father--attachment of son's share--subsequent insolvency of father--receiver, whether entitled to sell son's share--decree-holder's rights. - .....the receiver had not intervened, the decree-holder would have been entitled to bring to sale the sons shares and, when the sale is effected, to receive the proceeds towards his decree. how the purchaser of the sons' shares has to work out his rights, is a matter with which the decree-holder is not concerned. the position cannot, in law, be altered, by reason of the mere fact that what was immovable property has been converted into money. the official receiver, coimbatore v. arunachalam chettiar 66 mlj 412 : 148 ind. cas. 787 : (1934) mwn 113 : 39 lw 338 : air 1934 mad. 217 : 6 rm 538, decided by beasley, c.j. and bardswell, j.) is a case on all fours and fully supports my view. instead of the sons' shares being sold by the court, the official receiver sold them wrongfully in my.....
Judgment:

Venkatasubba Rao, J.

1. The question raised is, whether the father's adjudication defeats the decree-holder's rights in respect of the sons' share in the property. The attachment was of the lands, that is to say, of the interests not only of the father but also of the sons. Subsequent to the attachment, the father was adjudicated an insolvent. It has been held in Seetharama Chettiar v. The Official Receiver, Tanjore 49 M 849 : 97 Ind. Cas. 825 : 51 MLJ 269 : 24 LW 345 : (1926) MWN 743 : AIR 1926 Mad. 994, and is now settled law. that what passes to the Receiver on a father's adjudication is not only the father's share in the property but also his power of disposal, under the Hindu Law, over the shares of the sons ; it. is equally clear that when the sons' shares are attached, the attachment puts an end to the father's power of disposal. When therefore an attachment has been effected of the son's shares before the father's adjudication, there is no power of disposal which can pass to, and vest in, the Receiver.

2. What happened in the present case, that the Official Receiver, in whom the father's share vested on his adjudication, sold not only his interest in the lands but also that of the sons. The decree-holder (the petitioner) thereupon sought in execution, byway of a prohibitory order, to attach the money in the Receiver's hands, representing the sale proceeds of the sons' shares in the property. The lower Court, upholding the Receiver's objection, has held that he is not liable to pay the amount to the decree-holder. This conclusion is clearly wrong. If the Receiver had not intervened, the decree-holder would have been entitled to bring to sale the sons shares and, when the sale is effected, to receive the proceeds towards his decree. How the purchaser of the sons' shares has to work out his rights, is a matter with which the decree-holder is not concerned. The position cannot, in law, be altered, by reason of the mere fact that what was immovable property has been converted into money. The Official Receiver, Coimbatore v. Arunachalam Chettiar 66 MLJ 412 : 148 Ind. Cas. 787 : (1934) MWN 113 : 39 LW 338 : AIR 1934 Mad. 217 : 6 RM 538, decided by Beasley, C.J. and Bardswell, J.) is a case on all fours and fully supports my view. Instead of the sons' shares being sold by the Court, the Official Receiver sold them wrongfully in my judgment and. that circumstance cannot deprive the judgment-creditor of his right. I must, therefore, set aside the lower Court's order and hold that the petitioner is entitled to 5/6ths of the sale proceeds. The lower Court will ascertain the amount and direct the Official Receiver to pay it to the petitioner.

3. The Civil Revision Petition is allowed and as regards the costs, I direct the Official Receiver to pay them personally. He persuaded the lower Court to uphold his objection and, as a Public Officer, he ought to have either appeared here, to support the judgment or intimated in some way, that he was not going to oppose the petition; that is why I make him liable for the costs personally.


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