BEJOY KUMAR SAHA REPRESENTED BY HIS NEXT FRIEND AND GUARDIAN MOTHER, KUNTALABALA DASI Vs. RAMAPATI BASU, RECEIVER

JUDGEMENT

(1.) The facts giving rise to these connected appeals may be shortly stated as follows: There were five insolvency proceedings started by certain creditors against five debtors, to wit, Doman Chandra Saha, Sibadas Saha, Bholadas Saha, Damini Sundari Dasi and Lilabati Dasi, who together with Bijoy Saha an infant who is the appellant before us, constituted a joint Hindu family carrying on business at Sainthia under the names of Doman Chandra Saha, Kunja Lal Saha, and Kunja Lal Saha and Sons. The District Judge of Birbhum by his order dated 14 September 1935 while holding that the debts due by each of the debtors exceeded. Rs. 500 in amount, and that there were acts of insolvency committed by all of them, dismissed the applications for insolvency on the technical ground that they were not properly signed and verified by the petitioning creditors. Against this order, there were five appeals taken to this Court, and this Court by its order dated 13 June 1939 set aside the judgment of the trial Judge and adjudicated all the five debtors insolvents on the petition of one of the creditors named Dhansukh Das Hiralal. The learned Judges did not think it necessary, in these circumstances, to consider the applications of the other creditors. On 22nd September 1939 Ramapati Bose the respondent before us was appointed a receiver in respect of the estates of the insolvents. On 27 January 1940 the receiver reported to the Court that in taking possession of the properties o? the insolvents he had to take possession of the undivided 1/6 share of Bijoy the infant cosharer in the joint estate, although he was not adjudicated an insolvent, and he solicited directions from the Court as to whether the rents and profits in the minor's share should be handed over to him. The matter was heard in the presence of the guardian of the minor, and by his order dated 16 March 1940, it was held by the learned District Judge that as Doman Chandra Saha, the manager of the joint family was adjudicated an insolvent, the power which he had of disposing of the entire property, including the share of the minor for payment of joint business debts, vested in the receiver, and that the receiver could exercise these powers for the benefit of the creditors. It is the propriety of this order that has been challenged on behalf of Bejoy who is the appellant in these five appeals before us.

(2.) Mr. Chowdhury who appeared in support of the appeal has contended before us that under Section 28(2), Provincial Insolvency Act, all that vests in the receiver is the property of the insolvent and it can not be said that the right if any of the manager to alienate the joint estate, under certain conditions, for the purpose of satisfying family debts is a property within the meaning of Section 2(d), Provincial Insolvency Act, which would vest in the receiver under Section 28 of the Act. There are a number of cases, decided by other High Courts in India, where this question was agitated; though there is no authoritative pronouncement on the subject by this Court as yet. The question was raised in Indubala Dassi V/s. Bakkeswar Baneyi but the learned Judges expressly left it undecided. As regards cases coming under the Presidency Towns Insolvency Act, it is now settled by two recent decisions of the Judicial Committee that when a father, who together with his sons constitutes a Mitakshara joint family, is adjudicated insolvent, the undivided interest of the sons in the joint estate does not vest in the Official Assignee as a property of the insolvent under Section 17, Presidency Towns Insolvency Act. The power or authority of the father however to make the sons interest liable for his debts contracted not for illegal or immoral purposes, vests in the Official Assignee under Section 52(2)(b), Presidency Towns Insolvency Act, and the power can be exercised by the Official Assignee subject to all the limitations under which the father "himself could exercise it: Sat Narain V/s. Behari Lal and Sat Narain V/s. Sri. kishen Das .

(3.) In the first of these cases, the plaintiff appellant claimed right of pre-emption over an adjoining house on the ground of contiguity. The defence was that as the plaintiff's father who was the karta of a Mitakshara joint family, had been adjudicated insolvent under the Presidency Towns Insolvency Act, the plaintiff's interest in the property by virtue of which the right of pre-emption was claimed, vested in the Official Assignee, and hence no longer existed. The trial Court negatived the defence and gave the plaintiff a decree. On appeal to the Lahore High Court, the learned Judges who heard the appeal made an order referring to a Pull Bench the following question: Does an order of adjudication against a father vest in the Official Assignee his son's interest in the joint family property ?