SANKARANARAYANAN Vs. OFFICIAL RECEIVER TIRUNELVELI

JUDGEMENT

(1.) THERE was one Sankaranarayana Iyer who had two sons by name Sundaram iyer and Ganapathi Iyer. Sundaram Iyer is the second defendant in the suit and ganapathi Iyer the third defendant. Ganapathi Iyer has two sons by name sankaranarayanan and Subramaniam. Sankaranarayanan is the first plaintiff and Subramaniam the minor through his mother and next friend is the second plaintiff. The suit was filed for partition of their (Plaintiff's) one-third share. On 10-11-1961 in I. P. 9 of 1961 defendants 2 and 3 were declared insolvents. The official Receiver was also, therefore, impleaded as the first defendant in the suit.

(2.) THERE are tow items of properties set out in the plaint. The first item of the suit properties is ancestral in character. The second item was said to have been purchased by the second defendant from out of the cash left by his father. Defendants 2 and 3 were said to have started an entirely new business with the cash left by their father and contracted debts. According to the plaintiffs, the debts were avyavaharika in character so as not to bind them or their shares. The first defendant-Official Receiver was said to have brought the whole of the joint family properties including the shares of the plaintiffs for sale for realising the decree debts against defendants 2 and 3 which, according to the plaintiffs, were not binding on them. Hence the suit for declaration of their right to one-third share in the suit properties and for partition was filed.

(3.) THE first defendant I. e. , the Official Receiver filed a written statement taking up the position that on the adjudication of defendants 2 and 3, the entire properties inclusive of any share of their sons vested in him and that the plaintiffs were not entitled to ask for partition. It was claimed that the debts of the insolvents were binding on the sons and that the sons were bounded to discharge the same on the principle of pious obligation. The case of the Official receiver was that item 2 of the plaint schedule properties was the absolute property of the second defendant and that the third defendant or his sons, plaintiffs 1 and 2 had no right thereto. The Official Receiver denied that the debts contracted by defendants 2 and 3 were in any manner liable to be classified as avyavaharika debts. The properties including the shares of the plaintiffs were said to be insufficient to pay the debts in full and that, therefore, provision had to be made by the Court to order the sale of the entire properties including the shares of the plaintiffs for payment of such of those debts which had been proved by the Official Receiver.