BINDYA WASINI PRASAD VERMA Vs. DHARAMNATH PRASAD

JUDGEMENT

(1.) The question of law which arises for decision in this appeal by the plaintiff is whether an official receiver appointed in an insolvency case can alienate privately the shares of the sons of the insolvents, for making payments to the creditors of the proved debts incurred by insolvents for legal necessities and which are not tainted with immorality or illegality after a decree for partition has been passed in favour of the sons in a suit between them and the insolvents. No oral evidence was adduced by either of the parties in the court below and no other question of fact or law has to be decided in this appeal.

(2.) The facts of the case, which are not in dispute, may briefly be stated. There was an Insolvency Case, No. 4 of 1952 in the court of the District Judge, Darbhanga, for declaring defendant second party Sitaram Sah, Baijnath Prasad, Banarsi Prasad, Kashinath Prasad and one Bishwanath Prasad as insolvents. During the pendency of that case the defendants first party, i. e. Dharamnath Prasad son of Baijnath Prasad, Amarnath Prasad son of Sitaram, Chandra Sekbar Prasad son of Banarsi Prasad and Ashok Kumar, Sashi Kumar and Nirmal Kumar sons of Kashinath Prasad instituted Partition Suit No. 136 of 1953 in the court of Subordinate Judge of Darbhanga for partition of the family properties. Defendants second party of this suit were defendants in the said partition suit. A preliminary decree was passed on 10th of June, 1954. Defendants second party declared insolvent in the said Insolvency Case No. 4 of 1952 by the District Judge of Darbhanga by his order dated 12th of April 1956 and the plaintiff of the present suit was appointed official receiver. On 8th of May, 1956 defendants, first party filed an application before the Subordinate Judge, Darbhanga for making the plaintiff of the present suit a party to the partition suit. The application was allowed on the very date and the official receiver was impleaded as a party to the final decree proceeding which was pending before the subordinate Judge. The pleader commissioner submitted his report in May, 1958 and it was confirmed by the Subordinate Judge by his order dated 12th of June, 1958 but the final decree could not be sealed and signed before 25th of January 1960. On 27th of March, 1961 the official receiver instituted the present suit alleging inter alia in the plaint that the allotment of separate properties to the defendants first party stood as an impediment to the sale of their share and he was left with no other choice but to institute the suit for a declaration that the debts of the insolvency petition which were proved before the District Judge. Darbhanga in the said insolvency case, were debts of the joint family of the defendants first and second parties and were incurred for legal necessities or in any view of the case they were debts not tainted with immorality or illegality and as such the shares of the defendants first party were liable for sale in satisfaction of the said debts

(3.) In their written statement major defendants nos. 1 and 2 who contested the suit, denied that the debts were of the joint family or were incurred for legal necessities 01 were not tainted with anv immorality or illegality They further challenged the plaintiffs right to sell the properties after the decree in the partition suit and pleaded that the suit was barred by res judicata and hit bv Section 42 of the Specific Relief Act.