KOLANDAYAMMAL Vs. SINNAVELAPPA GOUNDAN

JUDGEMENT

(1.) The plaintiff-respondent in this case challenges the constitutional validity of the Provincial Insolvency Amendment Act, 1948, in so far as it affected the agricultural land. The facts are in a small compass and may briefly be stated.

(2.) The plaintiff and defendants 2 and 3 are the sons of the first defendant. The 14th defendant is the wife of the first defendant. They constituted members of a joint Hindu family of which the first defendant was the manager. He became heavily involved and was adjudged an insolvent in I.P. No. 63 of 1931 on the file of the Court of the Subordinate Judge, Coimbatore. The plaint schedule properties were sold in his insolvency by the Official Receiver. Some items were purchased by one Srinivasa Ayyar on 24th July 1933 under Ex. p-2 and other properties by the fourth defendant under Ex. P-4, dated 12-12-1935. Defendants 4 to 13 are the alienees or their successors-in-interest. Usufructuary mortgage interest in the second item devolved on the 15th defendant and he is in possession of the same. The plaintiff filed O.S. No. 109 of 1944 on the file of the Court of the Subordinate Judge, Coimbatore for partition and possession of his one-fourth share in the plaint schedule properties mainly on the ground that the Official Receiver had no power to sell the shares of the members of the family other than the first defendant. Pending the suit defendants 2, 3, 4, 5, 7, 8, 11, 12, and 10 have entered into a compromise with the plaintiff and a compromise decree was passed in respect of them. The learned Subordinate Judge relying upon the provisions of the Provincial Insolvency Act as it then stood, held that the Official Receiver had no power to sell the son's shares in the family properties. He gave a decree to the plaintiff for the recovery of one-fourth share of the properties in the possession of the 9th defendant and the 15th defendant The 15th defendant under the decree would be entitled to possession only after depositing a sum of Rs. 2,500 in Court. The 15th defendant has preferred the above appeal, and defendants 2 and 3 have preferred cross-objections in so far as the lower Court did not give them a decree for partition and possession of their share.

(3.) Pending the appeal the Provincial Insolvency Amendment Act 1948 was passed by the Dominion legislature, and, under the amending Act, the power of the father to sell his son's shares was declared to be property within the meaning of Section 28 of the Provincial Insolvency Act. If the Amending Act is valid, the decree of the lower Court would be wrong.