KANHAIYALAL MARWADI Vs. DAHLIA BARI

JUDGEMENT

(1.) ON his own petition one Bapu was adjudged insolvent on 22nd September 1928 and the appellant, who is one of the creditors, was appointed a receiver to take charge of Bapu's estate. At the instance of the receiver warrants for attachment of the insolvent's property were issued and some property was attached. The respondent Dablia, a nephew of the insolvent, filed an objection against the attachment of one of the three attached houses and certain mango trees on the ground that the house belonged to him because of its having been allotted to his share at the private partition made between him and the insolvent about five years previously and that the trees were purchased by him from the insolvent on 10th August 1927. The insolvency Court held that there was no partition between the objector and the insolvent as alleged by the former, that both of them still formed a joint Hindu family and that therefore the attached property belonged to the joint family : the sale of the trees was held fraudulent. On these findings the insolvency Court passed the following order : This is not a case where the objection has been filed by a son of the insolvent. Therefore the receiver cannot sell the interest of the objector even if the insolvent may be a manager of the family. Therefore I order the release of the undivided interest of the objector in the house and mango trees in question.

(2.) AGAINST this decision both the objector and the receiver appealed to the District Judge, but both the appeals were dismissed. On the receiver's appeal the learned Judge held that since on the insolvency of the manager of a joint Hindu family neither the entire joint family property nor the manager's power of disposing of it for the satisfaction of the joint family debts vests in the receiver, the decision of the insolvency Court releasing the property in question was correct. It is against this appellate order that the receiver has filed the present second appeal. On the strength of certain observations in Vithal v. Ramchandra it was contended on behalf of the appellant that since the entire joint family property had vested in the receiver upon the adjudication of Bapu,. the manager, as insolvent, the objector,. Dablia, being a member of the coparcenary had no right to prefer any objection against the attachment of his interest in the joint family property and that the Courts below therefore erred in releasing his undivided interest in the house and the mango trees in question. It was also urged that if the entire joint property had not vested in the receiver, the manager's power of disposal had so-vested and the receiver, in consequence-of this, could attach the entire family property.

(3.) AS the correctness of the decision in Vithal's case was doubted the matter was referred to a Bench. The parties agree that the Bench should decide all questions raised by the appeal. The principle underlying the decision in Vithal v. Ramchandra was not approved by their Lordships of the Privy Council in Sat Narain v. Behari Lal , where it was expressly ruled that on the insolvency of the father in a joint Hindu family the undivided interests of the other members in the joint family property do not vest in the receiver in in-solvency, but that the power of disposal over the joint family estate, which a Hindu father governed by the Mitakshara law possesses, does so vest because it falls within the purview of the definition of the word "property" in Section 2 (e), Presidency Towns Insolvency Act, which is identical in language with Section 2 (d), Provincial Insolvency Act. At the top of p. 22 of the report after stating that : 'property' is defined as including any property over which any person has a disposing power which he may exercise for his own benefit." their Lordships go on to say : "and it may be said that a Hindu father's power to sell the joint property and apply the proceeds to the payment of his debts is such a power."