IN THE MATTER OF: N. THIRUPATHISWAMI CHETTI OFFICIAL ASSIGNEE, MADRAS Vs. N. VENKAYYA MINOR BY GUARDIAN K.T. SESHAIAH

JUDGEMENT

(1.) Sri M. P. Sundararajan at this stage raised the contention that at the most only a declaration can be given in an application under S. 7 of the Presidency Towns insolvency Act about the binding nature of the debts on the son's share but the Official Assignee will not have a power of sale because some of the creditors of the father had already attached the share of the son in proceedings in execution of the decrees obtained by them against the father or against the father and son.

(2.) In, ILR (1939) Mad 853: : AIR 1939 Mad 702 there was a contract of sale by the members of the joint family. then there was an attachment by an execution creditor and later there was insolvency. In the insolvency proceedings the Official Receiver executed a sale deed in performance of the contract of sale. It was urged that the sale was invalid, the contention being that with the attachment by the execution creditor the Official Receiver's power of sale was at an end and the cases relied on by Sri Sundararajan, except the case in, ILR (1939) Mad 585: : AIR 1939 Mad 572 which was decided later, were relied on. Varadachariar J. expressed the opinion that the right of the creditor of the father to seize the son's share was a right to which the coparcenary right of the son was subject and therefore the right of the creditor of the father to seize the son's share could not be defeated even by attachment of the son's share by the execution creditor of the son. He emphasised that the effect of attachment is that embodied in S. 64 C. P. C. by which only the son whose share was being attached would be precluded from effecting a private sale of that share, and even there any private sale effected by the son after such attachment would not be altogether void but would be void only in respect of the attachment effected by the execution erector.

(3.) In : AIR1942Mad330 Venkataramana Rao J. and Somayya J. followed the above decision of Varadachariar J. and Gentle J. In : AIR1942Mad330 an execution creditor, namely, the 16th defendant, had made an attachment of the son's share but had not yet brought the property to sale. It was held that in view of the circumstance the Official Receiver was entitled to sell the son's share though the purchaser from the Official Receiver would have to give way to the necessary extent to the claims of the attaching creditor, namely, the 16th defendant. Somayya J. pointed out pertinently that even after the claims of the attaching creditor are satisfied there may be a large surplus left and it would be wrong to hold that the Official Receiver cannot lay any claim even to the surplus. For instance, the son's share may be worth Rs. 10000 and the attachment by the son's creditor may be only for Rs. 1000. Somayya J. pointed out that the balance must be available to the Official Receiver. It is interesting to note that Somayya J. was a party to the decision in, ILR (1939) Mad 585: : AIR 1939 Mad 572.