HARIDAS HIMATLAL Vs. LALLUBHAI MULCHAND MEHTA

JUDGEMENT

(1.) One Himatlal Maganlal was a member of a joint Hindu family along with his son, Haridas. He was adjudicated insolvent under the Provincial Insolvency Act V of 1920. A receiver of the insolvent's estate was appointed and he desired to sell by auction the share in the joint family property, not only of the insolvent, but also of the minor son. The latter by his mother opposed the sale of his own share, and the lower Courts decided that the receiver had power to sell it, the insolvent's debts not having been proved to have been incurred for an immoral purpose. The minor appeals. And the question, in this appeal, is whether the receiver has power to sell the minor's share for the benefit of the insolvent's estate.

(2.) The argument for the appellant is as follows:- The estate is different from the power to dispose of it and the power now in question is not property under Section 2 (d) of the Provincial Insolvency Act. That Act contains no provision corresponding to Section 52 of the Presidency-towns Insolvency Act; nor do Secs.37 and 67 of the Provincial Insolvency Act, which correspond to Secs.23 and 76 of the Presidency-towns Insolvency Act, contain any provision for the return of the surplus to the minor son. The power of a joint Hindu father to dispose of the joint son's property towards the payment of the father's debt is a personal power, which does not vest in the receiver.

(3.) The question whether upon a Hindu being adjudicated an insolvent under the Presidency- towns Insolvency Act 1909, the property of the joint Hindu family consisting of himself and his son did or did not vest in the Official Assignee was the subject of some difference of opinion until the decision of the Privy Council in Sat Narain V/s. Behari Lal (1924) L.R. 52 I. A. 22 : s.c. 27 Bom. L.R. 135. In that case, their Lordships held that the property of the son did not vest in the Official Assignee and did not come within the meaning of property as defined in Section 2 (e) of the Presidency-towns Insolvency Act, Act III of 1909, although under Section 52 (2), or in some other way, that property might 1)8 made available for the payment of his just debts. Their Lordships, in their judgment, considered Secs.23 and 76 of the Presidency- towns Insolvency Act.