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Ramasankara Iyer and anr. Vs. the Firm of V.K.R. Krishna Iyer and Sons Represented by One of Its Partners V.K.R. Venkateswara Iyer and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in97Ind.Cas.393
AppellantRamasankara Iyer and anr.
RespondentThe Firm of V.K.R. Krishna Iyer and Sons Represented by One of Its Partners V.K.R. Venkateswara Iyer
Excerpt:
provincial insolvency act (v of 1920), section 6(c) - act of insolvency--separate property of one partner, attachment and sale of, in execution of decree against partnership--other partners, liability of, to be adjudicated insolvent. - .....for payment of money. the contention on behalf of the 1st respondent is that the attachment and sale of property of a partner is sufficient to bring the appellant within the provision of section 6(e). sub-section (3) refers only to the property of the person against whom an application for adjudication is made. it cannot be said that the property of the partner becomes the property of the other by reason of the other being partners. it is not contended that the property that was brought to sale on the 23rd of june was partnership property. if the partnership property had been brought to sale within three months of the presentation of the petition for adjudication, all the members of the partnership could be adjudicated insolvents. here, only the separate property of a partner was.....
Judgment:

1. This is an appeal by the 2nd respondent in the lower Court against the order of the District Judge of Tinnevelly adjudicating him an insolvent. The learned Judge finds that the 1st respondent's property was attached and sold on the 23rd June, 1922, and that amounts to an act of bankruptcy on the part of the appellant. The appellant and the 2nd respondent herein were partners in trade. A decree was obtained against the partnership and the property of the 2nd respondent herein was attached and brought to sale. Under Section 6(c) of the Provincial Insolvency Act, a person commits an act of insolvency if any of his property has been sold in execution of a decree of any Court for payment of money. The contention on behalf of the 1st respondent is that the attachment and sale of property of a partner is sufficient to bring the appellant within the provision of Section 6(e). Sub-section (3) refers only to the property of the person against whom an application for adjudication is made. It cannot be said that the property of the partner becomes the property of the other by reason of the other being partners. It is not contended that the property that was brought to sale on the 23rd of June was partnership property. If the partnership property had been brought to sale within three months of the presentation of the petition for adjudication, all the members of the partnership could be adjudicated insolvents. Here, only the separate property of a partner was attached and sold and that cannot be held to mean that the property of the appellant was brought to sale. So far as the property of the partners is concerned, that is liable only in case the partnership assets are not sufficient to satisfy the creditor's claims. Even then the separate property of the pattners remains as such and the mere fact that it is liable for partnership debts would not make it partnership property. The appellant not having committed an act of bankruptcy within three months of the presentation of the application, the order of adjudication is illegal. We, therefore, allow the appeal with costs.


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