SITA RAM Vs. BENI PRASAD

JUDGEMENT

(1.) This is a second appeal in insolvency proceedings. One Bam Prasad was declared an insolvent on 18 May, 1914, and a Receiver was appointed on 3rd June, 1914. At that time the insolvent's father, Basanti Lal, was dead, while his grandfather Girdhari Lal and three brothers, Shambhu Nath and others of his father Basanti Lal were alive. The receiver desired to take possession of a portion of the property in the possession of Girdhari Lal on the ground that it was joint ancestral property and that Ram Prasad had a share therein. Girdhari Lal objected and the insolvent Court held, on 10 September, 1915, that the property was the self-acquired property of Girdhari Lal in which Ram Prasad had no share. After the death of Girdhari Lal, the Receiver claimed ownership by right of succession of the insolvent to a one-fourth of the property left by Girdhari Lal, whereupon he was stopped by Shambhu Nath and others who claimed the entire property as beneficiaries under a will of Girdhari Lal. The matter was inquired into by the insolvency Court which decided, on 12 November 1917, in favour of the genuineness of the Will.

(2.) In 1921 two minor sons of Ram Prasad sued Shambhu Nath and others and also their father Ram Prasad for partition of their one sixth share, that is, two thirds of one-fourth, which according to them devolved on Ram Prasad by right of survivorship. A preliminary decree for partition was passed in their favour on 29th June, 1923. Before a final decree could be prepared, the parties compromised and the sons received a house and Rs. 8,000 in cash as their one-sixth of ancestral property.

(3.) One of the creditors, Beni Prasad, thereupon moved the insolvency Court to direct the Receiver to take possession of this property of sons for payment of their father's debt. This application was dismissed by the trial Court of the Judge of Small Causes on 24 September, 1923, on the ground that it was barred by previous orders of the Court under Section 11 of the Civil P. C.. The provisions of the Civil Procedure Code are made applicable to insolvency proceedings under Section 5 of the Act No. V of 1920. On appeal to the District Judge by the creditor the order of the trial Court was set aside and the Receiver was directed to take possession of the house and cash allotted to the sons on partition and to distribute the proceeds among the creditors.