LAKSHMANA VASUDEVA CO Vs. GOPALAN

JUDGEMENT

(1.) The respondent was adjudged insolvent by the Subordinate Judge, Tellicherry in I. P. 1/1949. He applied for discharge under S.41 of the Provincial Insolvency Act. The petitioner who was the principal creditor opposed the grant of an order of absolute discharge on two grounds, viz., (i) that the respondent was guilty of fraud and (ii) that if at all only a conditional discharge should have been granted as the respondent was entitled to a share in Tavazhi properties. These objections were overruled by the court of first instance and an order of absolute discharge was given. This was confirmed in appeal and the petitioner has come up in revision challenging the correctness of the concurrent orders.

(2.) The first ground urged by the learned counsel for the petitioner is that the respondent was guilty of fraudulent conduct in as much as he executed a release of his share in Tavazhi properties to his sister before applying for adjudication. The Tavazhi was undivided at that time and as pointed out by the courts below, the transfer was absolutely inoperative. The property belonged to the Tavazhi and the respondents mother was alive on the date of the transfer so that he could not ask for partition. It cannot be said that the respondent who was a member of the Tavazhi had a definite alienable share in such properties at that time. This cannot, in my opinion, be treated as a valid ground for refusing discharge.

(3.) The second ground is more substantial. Even if the respondent had no transferable share in Tavazhi properties on the date of his adjudication, he would have obtained a share after the life time of his mother. In such a case it is open for the court to make the discharge conditional and to direct that such share when acquired should vest in the Official Receiver. The decision in Abdul Jabar v. Din Muhammed (AIR 1934 Lahore 659 (1) is in point. That was a case of an appeal from a conditional order of discharge and the condition was that the insolvent should hand over to the Official Receiver all the assets which he might inherit from his father It was held that the court was competent to impose such a condition under S.41(2)(c) of the Provincial Insolvency Act and that the possibility of the insolvents father not dying for a long time or not leaving any property for his son was no ground for making the discharge unconditional. I accept this view and hold that the order of discharge should have been subject to a similar condition that the insolvents share in Tavazhi properties when obtained should vest in the Official Receiver. It has also to be pointed out that even though the insolvent could not enforce partition during his mothers life time according to Marumakkattayam law as it stood at the time of the decision by the courts below, the position has become altered by the Madras Marumakkattayam (Amendment) Act (26 of 1958, Kerala) which has conferred a right to enforce partition even during the mothers life time. It is therefore clear that the respondents share in his Tavazhi properties should vest in the Official Receiver for the benefit of his creditors.