P M ABUBAKAR Vs. AMMINIKUTTY THAMPATTI

JUDGEMENT

(1.) The Official Receiver of the District Court at Alleppey is the appellant. He had filed the petitions, C.M.P. 6286/1118 and C.M.P. 1401/1121, before the Insolvency Court praying for a declaration that the properties covered by the sale deed Ext. A dated 9.10.1115 in favour of the counter petitioner, really belong to the insolvent and that the counter petitioner is only a benamidar for the insolvent. He also prayed for removal of the obstruction caused by the counter petitioner and for being out put in possession of the properties. These petitions were opposed by the counter petitioner who maintained that the properties purchased by her under Ext. A belong to herself absolutely and exclusively and that the insolvency court cannot adjudicate upon her title to those properties. She also stated that she does not submit to the jurisdiction of the insolvency court to enquire into the question of her title to the properties purchased by her under Ext. A. The insolvency court upheld her objections and found that in the nature of the objections raised by the counter petitioner the claim put forward by the Official Receiver has to be properly investigated and adjudicated upon in a regular suit. Accordingly the petitions put in by the Official Receiver were dismissed by the insolvency Court. This appeal is against that order.

(2.) It is argued by the learned Advocate for the appellant that under S.4 of the Travancore Insolvency Act (Act VIII of 1106) the insolvency court has full power to decide all questions whether of title or of priority or of any nature whatsoever and whether involving matters of law or of fact, which may arise in any case of insolvency coming within the cognisance of the court, or which the court may deem it expeditious or necessary to decide for the purpose of doing complete justice or making a complete distribution of the property in any such case and that the lower court has gone wrong in refusing to exercise such a jurisdiction conferred on it by the statute. No doubt S.4 Cl.(1) of the Insolvency Act has conferred on the insolvency court ample powers to investigate and adjudicate upon all claims arising in any case of insolvency coming within the cognizance of the court. But an express limitation has been placed upon this power by the proviso to Cl.(1) of S.4, which runs as follows: Provided that unless all the parties agree the power hereby given shall not be exercised for the purpose of adjudicating upon any claim not arising out of the insolvency. It follows therefore that the insolvency court could proceed to investigate and adjudicate upon the claim put forward by the Official Receiver in the present instance only if it is satisfied that the claim is one arising out of the insolvency of the debtor or only if the counter petitioner has agreed to such an investigation and adjudication by the insolvency court.

(3.) The debtor in this case was adjudicated an insolvent on 18.3.1114. At that time he was only a junior member in his undivided tarwad. He is a Kshathriya by caste and as such governed by the provisions of the Kshathriya Act (Act VII of 1108) S.46 of this Act is to the effect that until partition no member of a Kshathriya tarwad shall be deemed to have any definite share in the tarwad properties. It was only by the execution of Ext. B partition deed dated 9.10.1115 that the insolvent became a divided member of his tarwad. But it is seen that under Ext. B no immovable properties have been set apart to his share. It cannot therefore be said that any properties obtained by him towards his share in the tarwad properties have been transferred by him to his wife, the counter petitioner respondent. The properties claimed by the Official Receiver are those covered by the sale deed, Ext. A. Even though the insolvent is one of the executants of Ext. A, it was a sale by his tarwad as a whole, and hence it cannot be said that any separate property belonging to the insolvent was conveyed under Ext. A. Ext. A prima facie shows that it was a sale for proper and valid consideration. The balance of the properties left with the tarwad after the execution of the sale deed Ext. A, have alone been partitioned under Ext. B, and as such the insolvent could have claimed his share only out of those properties. The earlier sale under Ext. A by his tarwad could not be said to be a sale by the insolvent.