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T.S. Balavenkataseetharama Chettiar and anr. Vs. the Official Receiver and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported inAIR1926Mad994; 97Ind.Cas.825; (1926)51MLJ269
AppellantT.S. Balavenkataseetharama Chettiar and anr.
RespondentThe Official Receiver and ors.
Cases ReferredNichols v. Nixey
Excerpt:
provincial insolvency act (v of 1920), sections 17, 28 - hindu father, adjudication of, as insolvent--power to sell son's share, whether vests in official receiver--death of father before sale, effect of. - krishnan, j.1. the point for decision in this appeal is whether the official receiver in whom the property of an insolvent hindu governed by the law of mitakshara is vested under the provincial insolvency act v of 1920 is entitled to sell the joint family property of the insolvent and his sons for his debts, they being neither illegal nor immoral. the lower court has held that he could and has upheld the sale by him. the appellants contend that he has no such power.2. the rulings of this court have been in favour of recognising such power and holding such sales to be valid both in the presidency town and in the mofussil. [see official assignee of madras v. ramachandra aiyar 68 ind. cas. 898 : 46 m. 54 : 16 l.w 559 : (1922) m.w.n. 653 : 1923 43 m.l.j. 569 : a.i.r. 1923 mad 55, in re.....
Judgment:

Krishnan, J.

1. The point for decision in this appeal is whether the Official Receiver in whom the property of an insolvent Hindu governed by the Law of Mitakshara is vested under the Provincial Insolvency Act V of 1920 is entitled to sell the joint family property of the insolvent and his sons for his debts, they being neither illegal nor immoral. The lower Court has held that he could and has upheld the sale by him. The appellants contend that he has no such power.

2. The rulings of this Court have been in favour of recognising such power and holding such sales to be valid both in the Presidency Town and in the Mofussil. [See Official Assignee of Madras v. Ramachandra Aiyar 68 Ind. Cas. 898 : 46 M. 54 : 16 L.W 559 : (1922) M.W.N. 653 : 1923 43 M.L.J. 569 : A.I.R. 1923 Mad 55, In re Balusawmy Ayyar : AIR1924Mad411 Sankaranarayanan Pillai v. Rajamani : (1924)46MLJ314 and Kuppusami Goundan v. Marimuthu Goundan : AIR1925Mad52 . There was a difference of opinion as to whether the power to sell the joint property alone vested in the Official Assignee or Receiver or whether the undivided share it self of the sons vested in him. In the first three cases quoted above, it was ruled that the power alone vested but in Kuppusami Goundan v. Marimuttu Goundan : AIR1925Mad52 the opinion was expressed that the share itself vested. But all the cases were agreed that the Official Assignee or Receiver was entitled to sell the whole joint property and give a good title to the purchaser provided that the debts were such as the sons were, on account of their pious obligation, bound to pay from their joint property.

3. The question has again been raised now on account of the recent ruling of the Privy Council in Sat Narain v. Behari Lal : (1925)27BOMLR135 and it is contended that the result of that decision is to compel us to hold that neither the shares of the sons nor the power to sell such shares vests in the Official Receiver and that he can proceed against the sons' share if at all only by way of suit. The Privy Council has, no doubt, clearly laid down that the shares of the sons do not vest in the Official Assignee. That decision was under the Presidency Towns Insolvency Act and one of the arguments used by their Lordships to arrive at their conclusion is based on the existence and the language of Section 52 of that Act, a section which finds no counterpart in the Provincial Insolvency Act. Nevertheless as the other arguments apply equally to the latter Act, it seems to me that we must hold that the same principle governs cases under it in the Mofussil. As a result we must overrule the decision in Kuppusami Goundan v. Marimuthu Goundan : AIR1925Mad52 , in so far as it holds that the undivided share of the son itself vests in the Official Receiver.

4. That does not, however, carry the appellants for enough to enable them to succeed in their appeal for, if the Official Receiver has got the father's power to sell the joint property vested in him, he will be entitled to sell the whole joint property himself. It 13 therefore, argued for the appellant that though under the Presidency Towns Insolvency Act, such a power may be vested in the Official Assignee by virtue of Section 52, there is no provision in the Provincial Insolvency Act to so vest it. I do not think the Legislature intended to make any such distinction between the Madras and the Mofussil insolvencies as suggested by this argument. It cannot be said that their Lordships of the Privy Council laid down that such a power will not pass to the Official Assignee ; it was not necessary for them to do so for the purpose of the case before them which was one of a right of pre-emption claimed by the insolvent's son as owner of his share of the family property. The vesting of a power to sell it in the Official Assignee would not interfere with that right till he actually exercises that power and sells; a thing which had not been done in that case. In fact their Lordships expressly say: 'It may be that under the provisions of Section 52 or in some other way that property (i.e., the joint property) may in a proper case be made available for payment of the father's just debts'. The contention, however, is that the effect of their Lordships' judgment is to prevent any vesting of such power in Mofussil cases at any rate as there is no express provision for it in the Mofussil Act. It seems to me, however, that the provisions we have in the Act are sufficient to vest such a power. Section 28, which is the vesting section, vests the whole of the property of the insolvent in the Official Receiver. In the joint family property the insolvent father is not only entitled to his own share but has also got a power to sell the whole property including the son's share for payment of his just debts. It seems to me that under Section 28 itself his share as well as the power will vest in the Receiver as the insolvent's property. It is not necessary to pray in aid the definition of 'property' in Section 2(d) for this purpose. There may be a difficulty in doing so as their Lordships seem to have been of opinion that Section 2(e) of the Presidency Towns Insolvency Act, the wording of which is the same as that of Section 2(d) of the Provincial Insolvency Act, contemplates only an 'absolute and unconditional power of disposal' which a father's power is not as it depends upon the existence of debts liable to be satisfied out of the ton's share. Section 28, how ever, by itself is enough, it seems to me, to vest that power in the Receiver as a species of property, belonging to the father.

5. Now it is argued that a power can never be treated as property and reliance is placed upon the case of Ex parte Gilchrist, In re Armstrong (1886) 17 Q.B.D. 521 : 55 L.J. Q.B. 578 : 55 L.T. 538, especially on the judgment of Fry, L. J., on page 531 Page of (1886) 17 Q.B.D.--[Ed.]. In that case the learned Judges were dealing with what is called a general power of appointment under the English Law which is a very different thing in law from the power of the Hindu Law which we are dealing with. Section 52 of the Presidency Towns Insolvency Act itself speaks of such a power or capacity of the father to sell as a species of property. I hold, therefore, that the Receiver had in this case the power to sell the whole joint property to pay the father's debts as they were neither immoral nor illegal debts and his sale must be upheld.

6. I am fortified in my view as the same view was taken by a Bench of this Court in C.M.A. No. 115 of 1925 unreported and also by the Lahore High Court in Khem Ckand v. Narain Das 89 Ind. Cas. 1022 : 6 L. 493 : A.I.R. 1924 Lab. 41. There is an expression of opinion to the contrary by Macleod, C.J., in Shripad v. Gopalkrishna Chandavarkar : AIR1925Bom416 , who says on page 787 Page of 49 B.--[Ed.] 'Speaking for myself, I do not think that when the manager of a joint Hindu family is adjudicated insolvent the power which he had before his insolvency to dispose of family estate for proper purposes, must be considered as vesting in the Receiver or Official Assignee'. It does not seem to be a considered opinion nor is it shared by Coyajee, J., who sat with him. The Chief Justice makes no reference to Section 52 of the Presidency Towns Insolvency Act. With all respect I am unable to accept the Chief Justice's dictum.

7. In this case one further argument has to be considered and that is that because the insolvent father died before the Receiver effected his sale, the sale was without authority and void. It is argued that the power came to an end with the death of the father and that the Receiver was no longer entitled to exercise it. For this argument reliance is placed on the case of Nichols v. Nixey (1875) 29 Ch. D. 1005 : 55 L.J. Ch. 146 : 52 L.T. 80 : 33 W.R. 840. The answer to this contention is provided for by Section 17 of the Act which deals with cases where the insolvent debtor dies pending proceedings in insolvency 1 hat section enacts that unless the Court otherwise orders, the proceedings shall be continued so far as may be necessary for the realisation and distribution of the property of the debtor. The power of sale can thus be exercised for the realisation of the assets of the insolvent even though he is dead. The English case cited is thus no applicable.

8. The appeal fails and is dismissed with costs, to be paid out of the estate, of the Official Receiver and alienees each one set.

Ramesam, J.

9. As I agree with the judgments of my learned brothers I will briefly give my reasons for doing so.

10. Having regard to the reference to Section 59 of the Act at page 24 Page of 6 L.--[Ed.] of the judgment' in Sat Narain v. Behari Lal I think there is very little doubt that the Privy Council intended to hold that the right of Alienation of a Hindu father in respect of joint family property passes to the Official Assignee under the Presidency Towns Insolvency Act I think the point is not capable of much argument The more difficult question that arises before us is, whether in the case of the Provincial Insolvency Ac the absence of a provision like Section 52 makes any difference, and, if so, what? The question turns upon what construction one may place on the definition of property in Section 2(d) of the Act. This definition identical in language with Section 2(e) of the older Provincial Insolvency Act III of 1807 which has been repealed by the present Act. On the one hand Mr. Varadachari contends that seeing that, under the CPC of 1882 which contained provisions relating to Provincial Insolvency Section 266 should vest in the Receiver and that the Provincial Insolvency Act is only intended to consolidate the preceding state of the law the definition of the word 'proper v' in the Provincial Insolvency Act ought to be construed so as to include the property itself and not merely the father rights over it. To this argument, however, there are three replies. First, the Privy Council have pointed out that decisions under the 0 PT C. ought not to be used for construing the Insolvency Acts. The Code had a history of its own culminating in Section 53 of the present Code of la08. Secondly, the House of Lords in Bank of England v. Vagliano (1891) A.C. 107 : 60 L.J. Q.B. 145 : L.T. 353 : 39 W.R. 657 : 55 J.P. 676 condemned this mode of construing an Act, that is, we ought to look at the Insolvency Act by itself and not to be influenced by the fact that it was a continuation of the previous C.P.C. of 1882. Thirdly, the identical words in the Presidency Towns Insolvency Act have been construed by the Privy Council in Sat Narain v. Behari Lal : (1925)27BOMLR135 , as applying only to property over which the insolvent had absolute power of disposal and until we see a reason to the contrary in the Act we are now considering, I think, if possible, the words in this Act ought to receive the same construction. I must, therefore, reject Mr. Varadachari's contention that the property (including the son's share) itself vests in the Official Assignee. On the other hand, it is contended by Mr. Rangachari that not even the father's rights over the property passed to the Official Assignee. Now, there is no doubt that the word 'property' may include without doing any violence to the term the rights of a Hindu father over joint family property under the Mitakshara Law. This is shown by Section 52 in the Presidency Towns Insolvency Act. The only question is, whether we should construe the word 'property' in the Provincial Insolvency Act so as to exclude such rights. I am not able to see any reason why we should--the absence of a section like Section 52 of the Presidency Towns Insolvency Act throwing no light on the matter. I, therefore, agree with the conclusion of my learned brothers.

11. On the third point, namely, whether the death of the insolvent makes any difference, I agree that it does not.

Venkatasubtaa Rao, J.

12. This appeal raises a very important question, namely, what is the .effect of the decision of the Judicial Committee in Sat Narain v. Behari Lal : (1925)27BOMLR135 The Hindu Law recognises the power of a father, subject to certain conditions and restrictions, to deal with his son's undivided interest in joint family property. On a father being adjudicated an insolvent, what is the nature of the right, if any, that passes to the Official Assignee or the Official Receiver as the case may be This is the question that this appeal raises. The appellants before us are the sons of an insolvent and they challenge the act of the Official Receiver, who, for paying off the father's debts, exercised the power to sell the son's interest also in family proper* ties. The learned District Judge has held that the Receiver could validly exercise such a power in respect of debts not shown to be either illegal or immoral.

13. Mr. Rangachari, the appellant's learned Vakil, contends before us, that the judgment of the Judicial Committee must be taken to amount to a pronouncement, that on a father being adjudicated an insolvent, neither the son's undivided share nor the father's conditional power to dispose of that share, vests in the Official Assignee. The case decides unmistakeably so far as the Presidency Towns Insolvency Act is concerned, that the son's share as such does not vest in the Official Assignee. Does it further decide that the insolvent's conditional power to dispose of his son's interest does not also pass to the Official Assignee?, The case having been decided with reference to the Presidency Towns Insolvency Act, a further question arises, what is the bearing . of that decision on the scope, in this respect, of the Provincial Insolvency Act the Act under which the present appeal has to be decided?

14. The points raised being of considerable importance, this Bench consisting of three Judges, has been specially constituted to hear this appeal.

15. In order to understand properly the decision of the Judicial Committee, it is necessary to have regard, first, to the facts with reference to which the. judgment was given, and secondly, to bear in mind the divergent views on the subject taken by the Courts in India. In the case before the Privy Council, the question arose in regard to the right of pre-emption, which a son as a member of a joint family, claimed to exercise, after adjudication of his father, as an insolvent; and against the son the contention was put forward that the entire property having previously vested in the Official Assignee, the son ceased to have any proprietary interest in the property which would entitle him to exercise the right of pre emption. A Full Bench of the Lahore High Court decided that on ad judication of the father which was before the suit, the son's undivided interest also passed to the Official Assignee and that consequently there was no right left in the son outstanding, which could be enforced in the suit. Did the undivided share of the son vest or not vest in the Official Assignee? This was the question that the Judicial Committee had to decide,- and disagreeing with the Full Bench of the Lahore High Court, their Lordships held that it did not vest. If the High Court had held that what passed to the Official Assignee was not son's undivided interest but the father's conditional power of disposal, the plaintiff's suit would not have been dismissed. In the light of these facts is there anything to show that the Judicial Committee intended to lay down that even the disposing power of the father did not pass? That the Judicial Committee has not said so in express terms is not disputed. The decreeing of the plaintiff's claim is not inconsistent, as I have said, with the recognition of the father's disposing power having passed to the Official Assignee.

16. Then, in regard to the views held by the Indian Courts, there was a sharp divergence of opinion as to what vested in the Official Assignee on the adjudication of a Hindu father belonging to a joint undivided Hindu family. To bring out the real point at issue, I shall refer to a few recerit cases decided by the High Courts in India. In Official. Assignee of Madras v. Ramachandra Aiyar : (1922)43MLJ569 the Official Assignee contended that on the adjudication of the father, the interest of the minor sons of the insolvent in the family property vested in him. Sir Walter Schwabe, C.J., who delivered the judgment of the Court consisting of himself and Coutts Trotter, J., observes that it may be taken as established law, that the Official Assignee is not entitled to have vested in him the shares of the other members, although he can deal with them if the insolvent could lawfully have done so had there been no insolvency. In In re Balusawmy Ayyar : AIR1924Mad411 , the question had to be considered whether the Privy Council decisions in Sahu Ram Chandra v. Bhup Singh : (1917)19BOMLR498 and Chet Ram v. Ram Singh 67 Ind. Cas. 569 : 44 A. 368 : 3 P.L.T. 366 : 31 M.L.T. 50 : 1922 43 M.L.J. 98 : 16 L.W. 89 : (1922) M.W.N. 455 : 4 U.P.L.R. 64 : 3.P.L.R. 1922 : A.I.R. 1922 P.C. 217 : 1922 24 Bom. L.R. 1261 : 27 C.W.N. 150 : 49 I.A. 228 : 21 A.L.J. 114 : 37 Cri.L.J. 79, affected the law as understood, in regard to the Official Assignee's power to deal with the son's interest during the insolvent's lifetime. In each of the three separate judgments that were delivered, the point is emphasized that the accepted law is, that it is the fathers power that vests in the Official Assignee and not the undivided share of the son. Coutts Trotter, J., says thus:

It was decided by a Bench of this Court consisting of two members of the present Bench in Official Assigne of Madras v. Ramchandra Aiyar : (1922)43MLJ569 , that the Official Assignee though it cannot be said that the shares of the minors actually vest in him, has nevertheless the same rights of disposition of the family property in the satisfaction of the debts of the manager as the manager, would himself have been en titled to exercise, if he had not been abjudicated an insolvent

17. Krishna, J., refers to it as settled law, that it the father has the right to sell the whole joint estate to pay off his antecedent debts that power can be exercised by the Official Assignee. In Sankaranarayanan Pillai v. Rajamani : (1924)46MLJ314 , the law was again stated in similar terms. Phillips J observes:

Applying this principle to the present case, we find that the Official Receiver had power to sell not only the share of the adult insolvents but also it vested in him the power of these insolvents as fathers to sell their sons interest in the property for the payment of antecedent debts.

18. In my own judgment in that case I expressed myself thus:

The learned Subordinate Judge has found that the debts of the 1st and 2nd defendants were not incurred for illegal or immoral purposes and it is now a settled rule that the Official Receiver can exercise the right of the father to dispose of the sons' interest in ancestral immoveable estate for the payment of the father's debts not tainted with illegality or immorality.

19. The first two cases arose under the Presidency Towns Insolvency Act and the third under the Provincial Insolvency Act and in each of these cases it was assumed that what vested m the Official Assignee was not the undivided share of the son but the conditional power of disposal possessed by the Hindu father.

20. The point again came up before a Bench of the Madras High Court in Kuppusami Goundan v. Marimuthu Goundan : AIR1925Mad52 That was a case under the Provincial Insolvency Act. It was there decided, contrary to the trend of the authority of this Court that the entire undivided interest of the son vested in the Official Receiver as distinguished from the mere disposing power of the father. Spencer, C.J., thought that Official Assignee of Madras v. Ramachandra Aiyar : (1922)43MLJ569 was wrongly decided owing to a concession erroneously made by the Advocate-General who argued that case and preferred to follow the judgment of the Lahore High Court in Behari Lal v. Sat Narain 69 Ind. Cas. 486 : 3 L. 329 : A.I.R. 1923 Lah. 1, the very same decision which was later upset by the Privy Council in the case cited at the opening of this judgment, Sat Narain v. Behari Lal . Srinivasa Iyengar, J., who concurred with Spencer, O.C.J., felt bound to follow the Lahore decision and held that the share itself vested. He observed, however, that if the matter had been res Integra he would have taken the view that it was the bare power that vested and not the corporeal undivided interest.

21. It was after these cases were decided by the Madras High Court that the question was raised before the Judicial Committee in the appeal from the Lahore case. The Madras cases to which I have made reference illustrate the conflict that prevailed in the Indian Courts on this question. Sir Shadi Lal, C.J., as one of the members of the' Full Bench of the Lahore High Court clearly indicated that if he had not ,been bound by authority he would have held that what vested was only the father's conditional power and not the son's undivided share. The Privy Council directed the whole of their judgment to show that the Lahore High Court's view, namely, that the share itself vested in the Official Assignee, was wrong. When their Lordships expressly say that they disapprove of one of these aforesaid two views, it seems to me that it would be most improper to read into their judgment, an intention to overrule by implication, the other and the exactly opposite view which had been repeatedly taken on this subject. These considerations seem to me to point strongly to the fact that the Judicial Committee could not have intended to lay down the very wide proposition for which Mr. Rangachari contends.

22. A careful examination of the judgment itself leads me, on the contrary, to the conclusion, that their Lordships recognise that although the son's undivided share does not pass, the father's conditional power of disposal does pass. Reference is made to Section 2(e) where the word ' property' is said 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. They then refer to Section 52(2)(6) which enacts that the property of the insolvent shall comprise the capacity to exercise all such powers in respect of property as might have been exercised by the insolvent for his own benefit at the commencement of his insolvency. Under the first of these sections, it is the property that vests, under the second, it is the power that vests, and their Lordships point out that it is difficult to reconcile Section 52 with the proposition that the property itself vests in the Assignee. While thus they reject the doctrine that the property vests, they impliedly accept the theory that the power vests. They again refer to Section 52 as containing a provision which enables the Official Assignee to have recourse to the son's share for the payment of the father's just debts. Section 52 can be invoked only by reason of the fact that under the section, the property that vests in the Official Assignee includes the capacity to exercise a power of disposal. The following sentence in their Lordships' judgment makes their meaning even more clear:

It is certainly a startling proposition that the insolvency of one member of the family should of itself and immediately take from the other male members of the family their interests in the joint property and from the female members their right to. maintenance and transfer the whole estate to an assignee of the insolvent for the benefit of his creditors.

23. It admits of no doubt, that what their Lordships were combating in the whole of their judgment, was' the view that the physical, corporeal, undivided shares of the son immediately vests in the Assignee as contrasted with, and distinguished from the bare right of conditional disposal possessed by the Hindu father. It is also significant that it is stated towards the close of their judgment that the cases cited by their Lordships are not inconsistent with the conclusion at which they have arrived.

24.3 I am, therefore, satisfied that Sat Narain v. Behari Lal is not an authority for the proposition that under the Presidency Towns Insolvency Act, the conditional power of disposal of the father does not vest in the Official Assignee.

25. I shall now proceed to deal with the second part of the question, viz., what bearing has this ruling on the scope of the Provincial Insolvency Act in this respect The argument for the appellant may be shortly put thus: Section 2(e) of the Presidency Towns Insolvency Act is identical in language with Section 2(d) of the Provincial Insolvency Act. The interpretation put by the Judicial Committee on Section 2(d) must, therefore, hold good in respect of Section 2(e).

26. It is next argued that Section 2(e) has been construed as referring only to property over which the insolvent has an absolute and unconditional power of disposal, whereas a Hindu father's right is only a conditional right. The answer is two-fold. Their Lordships were concerned with pointing out that Section 52 which vests merely the power, is irreconcilable with Section 2(e) which vests the property. In regard to Section 2(e) at the top of page 22 Page of 6 Lah.--[Ed.], after saying that property is defined as including any property over which any person has a disposing power which he may exercise for his own benefit, they go on to say:

And it may be said that a Hindu father's power to sell the joint property and apply the proceeds to the payment of his debts, is such a power'. Later on at the same page they observe:And Section 2 seems to contemplate an absolute and unconditional power of disposal.' Their Lordships were clearly pointing out that the definition in Section 2 applied 'unless there is something repugnant in the subject or context', and that Section 52 renders it repugnant to hold that in contravention of its express terms the property itself vests. However this may be, it seems to me to be somewhat far-fetched to suggest that such construction as might be deemd to have been placed upon the words in Section 2(e) was intended to be absolute and final irrespective of the context or the enactment where those words may occur. In the Provincial Insolvency Act there is no provision corresponding to Section 52(2)(b) which refers to the exercise of power over property. In construing, therefore, Section 2(d) in the Provincial Insolvency Act, we are not hampered by the fact of co existence in the same enactment of another provision in apparent or real conflict with that section. These very words have been used by the Indian Legislature in enactment after enactment in pari materia with the Provincial Insolvency Act, to signify the conditional and restricted power possessed by a Hindu father. These identical words are used in' Section 266 of the C.P.C. of 1877 and 1882 and are reproduced in Section 60 of the present Code of 1903. In all these enactments, as in the Provincial Insolvency Act with which we are at present concerned, these words stand alone and are not controlled by a different set of words such as those that occur in Section 52 of the Presidency Towns Insolvency Act. It must be borne in mind that their Lordships throughout in their judgment repeatedly point out that their decision is given in respect of the Presidency Towns Insolvency Act alone. When the Law of Insolvency for the Mofussil was a part of the C.P.C. itself, Section 266 was referred to in Section 354 of the two earlier Codes,-under which section the property of the insolvent vested in the Receiver. I am, therefore, of opinion that whatever be the meaning of the words in Section 2(e) of the Presidency Towns Insolvency Act, the expression in Section 2(d) of the Provincial Insolvency Act includes the qualified and restricted power of a Hindu father.

27. The only difficulty that still remains is, under this section is it the property or the power that vests in the Official Receiver? The Privy Council have in very emphatic terms shown the unsoundness of the position that the property itself vests and although the Presidency Towns Insolvency Act alone was under discussion, their observations are of general application. In the face of those remarks it is impossible to hold that the property itself vests. Sir Shadi Lal, C.J., in the Lahore case after adverting to cases under the C.P.C: felt bound to hold that it is the undivided share and not the qualified power that vests. It seems to me that there is nothing in the case decided under the various Codes that compels one to take the view that the property itself as distinguished from the power vests in the Official Receiver. The Legislature in using the phraseology it did in Section 2(d) of the Provincial Insolvency Act did no more than intend to enact that the insolvent's property includes also, in the case of a Hindu father, his disposing power over his eon's undivided interest. This construction seems to me to be equally applicable whether the words are used in the C.P.C. or in the Provincial Insolvency Act. Till a contrary opinion was expressed in Kuppusami Goundan v. Marimuthu Goundan : AIR1925Mad52 (which must now be regarded as overruled) this is the view that was taken by the Madras High Court in regard to the Presidency as well as the Provincial Insolvency Acts. In my opinion the authority of the Madras cases that hare held that a Hindu father's qualified and restricted power to dispose of his sons undivided interest vests on his adjudication in the Official Receiver has not been shaken by the recent pronouncement of the Privy Council in Sat Narain v. Behari Lal .

28. I may add that my view receives support from two cases decided since the Privy Council ruling, one, a decision of a Bench of this Court (Phillips and Madhavan Nair, JJ.) in C.M.A. No. 115 of 1925, and the other a decision of the Lahore High Court, Khem Chand v. Narain Das 89 Ind. Cas. 1022 : 6 L. 493 : A.I.R. 1924 Lab. 41.

29. In the present case, after adjudication, the insolvent died. Does this fact make any difference? As the learned District Judge points out, Section 17 provides for this contingency, which runs thus:

If a debtor by or against whom an insolvency petition has been presented dies, the proceedings in the matter shall, unless the Court otherwise orders, be continued so far as may be necessary, for the realisation and distribution of the property of the debtor.

30. Nichols v. Nixey (1875) 29 Ch. D. 1005 : 55 L.J. Ch. 146 : 52 L.T. 80 : 33 W.R. 840 has been cited for the proposition that the trustee cannot exercise a power of appointment after the death of the bankrupt, the donee of the power. The obvious answer to this is, that a decision which applies to powers in the ordinary legal sense of that term cannot be treated as an authority in regard to what is an entirely different thing, namely, the right, which has come to be described as power, under the Hindu Law of the father to dispose of his son'3 interest in the joint family property.

31. The appeal fails and is dismissed with costs as provided for in the judgment of my learned brother Krishnan, J.


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