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Subramania Iyer, Minor, by Next Friend Sankara Ammal Vs. T.V. Krishna Iyer and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in102Ind.Cas.266
AppellantSubramania Iyer, Minor, by Next Friend Sankara Ammal
RespondentT.V. Krishna Iyer and anr.
Cases ReferredSankaranarayanam Pillai v. Rajamani
Excerpt:
provincial insolvency act (v of 1920), sections 2 and 28 - hindu father--adjudication as insolvent--official receiver, power of, to sell son's interest in family property. - .....of an order of adjudication. section 2 is not an exhaustive definition of 'property,' and if this power of the father to sell his son's interests can be deemed to be property within the meaning of section 28, then this power vests in the court or in the official receiver, although the property over which the power had to be exercised does not so vest. it is contended for the appellant that this power of a hindu father is not property within the meaning of the act and he relies on the common law interpretation of power. it is very clearly laid down in ex parte gilchrist, in re armstrong (1886) 17 q.b.d. 521 : 55 l.j.q.b. 578 : 55 l.t. 538 that a general power of appointment is not property and it is...argued that the power of a hindu father is not property. the english law deals with.....
Judgment:

William Watkins Phillips, J.

1. The question we have to consider is whether the Official Receiver of an insolvent's estate has power to sell the interest of the insolvent's son in the family property, The question has been already decided in this Court in Official Assignee of Madras v. Ramachandra Aiyar : (1922)43MLJ569 where it was held that although the interest of the sons does not vest in the Official Assignee by reason of the adjudication it would be competent to the latter to deal with their shares if the debts of the insolvent were of such a nature as to be binding on their interests Again in Sankaranarayanam Pillai v. Rajamani : (1924)46MLJ314 to which I was a party, it was held that the sale by the Official Receiver purporting to be of the whole of the family estate of the insolvent passed to the vendee the son's share also. It is now contended for the appellant that in view of the recent decision of the Privy Council in Sat Narain v. Behari Lal these cases require reconsideration. In this last case, which was under the Presidency Towns Insolvency Act, it was held that Section 2(e) did not include the son's interests in the family property when the father had been adjudged an insolvent and that the interests of the sons did not vest in the Official Assignee. Their Lordships remark that '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.' Inasmuch as Section 2 of the Act is only to apply unless there is something repugnant in the subject or context, it was held that the disposing power mentioned in Section 2(e) contemplates an absolute and unconditional power of disposal. They, therefore, held that under the definition of property' in Section 2(e) the interests of the sons did not vest in the Official Assignee under Section 17. They, however, remark: 'It may be that under the provisions of Section 52, or in some other way that property may in a proper case be made available for payment of the father's just debts.' This remark clearly indicates that their Lordships had no intention of overruling either of the two Madras decisions I have mentioned above. Although that decision was under the Presidency Towns Insolvency Act, it is hardly possible now to contend that it would not apply to the Provincial, Insolvency Act with which we are here concerned. The definition in Section 2(d) of the latter Act is identical with the definition in the former. Although, therefore, their Lordships refer in their argument to Section 52 of the Presidency Towns Insolvency Act, a section which is missing in the Provincial Insolvency Act, yet it must be taken that the two sections being identical must have the same meaning and that the disposing power in both must be an absolute disposing power, although the question whether a father's right to enforce partition of the family property is an absolute power has not been considered. Apart, however, from Section 2 it appears to me that the question before us can be decided with reference to Section 28 under which the whole of the property of the insolvent shall vest in the Court on the making of an order of adjudication. Section 2 is not an exhaustive definition of 'property,' and if this power of the father to sell his son's interests can be deemed to be property within the meaning of Section 28, then this power vests in the Court or in the Official Receiver, although the property over which the power had to be exercised does not so vest. It is contended for the appellant that this power of a Hindu father is not property within the meaning of the Act and he relies on the Common Law interpretation of power. It is very clearly laid down in Ex parte Gilchrist, In re Armstrong (1886) 17 Q.B.D. 521 : 55 L.J.Q.B. 578 : 55 L.T. 538 that a general power of appointment is not property and it is...argued that the power of a Hindu father is not property. The English Law deals with powers which are created by deed or testamentary disposition, and it is impossible to say that such powers, are in any way analogous to the powers of a Hindu father over the joint family property. No such powers are known to the English Law and they are creations not of deed or testament but of the Hindu Law. There seems, therefore, to be no reason why the word 'property' in the Insolvency Act should be held to exclude the disposing power of a Hindu father. Apart from this, under the English Bankruptcy Act, Section 15, the power of the disposing of property is specifically mentioned as one of the forms of property which vest in the trustee in bankruptcy. Similarly Section 52 of the Presidency Towns Insolvency Act provides that the property of the insolvent divisible amongst his creditors shall compromise among other things 'the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the insolvent for his own benefit at the commencement of his insolvency or before his discharge.' If, therefore, the English Bankruptcy Act and the Presidency Towns Insolvency Act treat this power as the property of the insolvent, there must be very strong reason for holding that the same word 'property' in the Provincial Insolvency Act has a different meaning and excludes such powers. On this ground I think that it must be held that the power of a Hindu father over the family property must be deemed to be property within the meaning of the Act and as such to vest it in the Court or the Receiver. If that is so, the Receiver can exercise such powers, and in doing so, sell the interests of the insolvent's sons.

2. This conclusion may also be put on the ground adopted in Official Assignee of Madras v. Ramachandra Aiyar : (1922)43MLJ569 namely that when the Official Assignee stands in the shoes of the insolvent he can alienate the minor son's interests in the joint property for the purpose of paying the insolvent's debts unless the debts in question were incurred for illegal or immoral purposes. The same principle was applied in Sankaranarayanam Pillai v. Rajamani : (1924)46MLJ314 . There are only two decisions since the decision of the Privy Council in Sat Narain v. Behari Lal namely Khem Chand v. Narain Das Sethi 89 Ind. Cas. 1022 : 6 Lah. 493; A.I.R. 1926 Lah. 41 and Shripad Gopal krishna Chandavarkar v. Basappa Rudrappa Dandi 89 Ind. Cas. 996 : 1835 27 Bom. L.R. 934; A.I.R. 1835 Bom. 416 : 49 B. 786. In the former it was held that the Official Receiver is competent to proceed against all the co-parcenary property because he represents all the creditors and his position is similar to that of a judgment-creditor who can attach and sell the co-parcenary property to recover the debts incurred by the father. This is yet another ground for supporting the conclusion already arrived at. With all respect, therefore, I am not prepared to accept the decision in Shripad Gopalkrishna Chandavarkar v. Basappa Rudrappa Dandi 89 Ind. Cas. 996 : 1835 27 Bom. L.R. 934; A.I.R. 1835 Bom. 416 : 49 B. 786 to the contrary, which is a mere ipsi dixit unsupported by argument.

3. For all these reasons the sale by the Official Receiver must be upheld and this appeal dismissed with costs.

Madhavan Nair, J.

4. I have had the advantage of reading my learned brother's judgment. Sat Narain v. Behari Lal would show that the decision would apply equally to adjudication under the Provincial Insolvency Act also. But in view of the observation 'that the case must be decided on the wording of the Presidency Insolvency Act and that Act alone,' I do not think that their Lordships of the Privy Council intended that an extended application should be given to their decision. The judgment does not deal with the cases decided in this country under the Provincial Insolvency Act. Further Section 52, Clause 2(6) of the Presidency Towns Insolvency Act on which their Lordships place much stress does not find a place in the Provincial Insolvency Act. As pointed out by my learned brother, their Lordships' remark: 'It may be that under the provisions of Section 52, or in some other way, that property may in a proper case be made available for payment of the father's just debts' would indicate that their Lordships did not intend to overrule either Official Assignee of Madras v. Ramachandra Aiyar : (1922)43MLJ569 or Sankaranarayanam Pillai v. Rajamani 83 Ind. Cas. 196 : 47 M. 462 : 46 M.L.J. 314 : 34 M.L.I. 152 : A. I.R. 1924 Mad. 550 : 20 L.W. 357.

5. I agree with the order proposed by my learned brother.


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