CHITTURI PERRAJU ALIAS SARADHI Vs. CHITTURI CHINA PERRAJU

JUDGEMENT

(1.) The plaintiffs are the appellants in this appeal. They sued for partition and delivery of separate possession of their 1 /6th share of their family properties free from the claims of purchasers at a sale held by the Official Receiver in the insolvency of their paternal grand-father the first defendant. Defendants 2 to 4 are the sons of the fist defendant and the plaintiffs are the sons of the second defendant. The ist defendant was adjudicated an insolvent in I.P. No. 23 of 1936 in 1937. The Official Receiver in whom the properties of the insolvent vested sold them to various purchasers in the course of administration. The sales by the Official Receiver were effected in 1939. The case of the plaintiffs was that the sales by the Official Receiver did not convey their shares in the joint family properties or even the share of their father the second defendant and all that the purchsers got under the sale effected by the Official Receiver in their favour was the 1 /4th share of the first defendant, the insolvent, in the family properties. There was no challenge by the plaintiffs that the debts incurred by the first defendant were tainted by immorality or illegality or were such as would not be binding on the plaintiffs' share of the family properties by reason of their pious obligation to discharge the debts of their paternal grand-father. In the Court below, the plaintiffs were met by the defence that under section 28-A of the Provincial Insolvency Act V of 1920 the property of the insolvent comprised the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the insolvent for his own benefit at the commencement of his insolvency and that the Official Receiver had exercised the power of the insolvent to sell the shares of his grand-sons.

(2.) It is well-known that the effect of the enactment of section 28-A of Act V of 1920 in 1948 was to supersede the decision of the Full Bench of the Madras High Court in Ramasastrulu v. Balakrishna Rao,(1942) 2 M.L.J. 457 : I.L.R. (1943) Mad. 83 (F.B.). which laid down that the insolvency of the father of a Mitakshara joint family would not vest in the Official Receiver the power of the father to sell the sons' shares for the discharge of debts binding on the sons either on the ground of family necessity or of pious obligation. The amendment of the law by the enactment of section 28-A was intended to be retrospective and was expressed to be such. It was contended on behalf of the alienees that the sale by the Official Receiver conveyed not only the interest of the insolvent but the entire interest in the property including the interest of the insolvent's sons and grand-sons. The alienees relied upon the amendment of the law by the enactment of section 28-A in support of their contention that on the adjudication of the first defendant as an insolvent not only his share but also his power to dispose of the shares of his sons and grand-sons vested in the Official Receiver under section 28 of the Provincial Insolvency Act.

(3.) In the Court below, a prolonged and strenuous argument was directed to establish that section 28-A. of the Provincial Insolvency Act was ultra vires the Central Legislature in-as-much as it affected rights in or over land and the transfer, alienation and devolution of agricultural land comprised in entry 21 of List II of the Provincial Legislative list of the Constitution Act of 1935. This contention was negatived by the learned Subordinate Judge in an exhaustive judgment. It was elaborately dealt with by Subba Rao and Panchapakesa Ayyar, JJ., in Kolandayammal v. Sinnavelappa Goundan, (1951) 2 M.L.J. 438. and the learned Judges came to the conclusion that section 28-A was intra vires the Dominion Legislature and the power to sell the entire joint family property including the shares of the sons vested in the Official Receiver on the insolvency of the father of a Mitakshara joint family. It is unnecessary for us to deal at length with the reasons that have been given by the learned Judges in support of their conclusion and it is enough to say that we are in respectful agreement with the decision.