SAT NARAIN Vs. BEHARI LAL

JUDGEMENT

(1.) This is an appeal by the plaintiff in the suit from a decree of the High Court at Lahore, which dismissed his suit. The suit was brought on March 17,1915, by the plaintiff, then a minor, through his next friend, in the Court of the District Judge of Delhi for possession of a house in Delhi by pre-emption. The District Judge gave the plaintiff a decree, but the High Court in appeal dismissed the suit on the sole ground that hit, father bad been adjudicated insolvent on September 27. 1918, under the Presidency-towns Insolvency Act, 1909, the High Court being of opinion that on that adjudication of insolvency the plaintiff had ceased to have a right to pre-empt the house in question.

(2.) The question on which this appeal depends is, what is the right or interest which an official assignee acquires under Sir John Edge Act III of 1909, the Presidency-towns Insolvency Act, 1909, in the joint and unpartitioned immoveable property of a Hindu joint family governed by the law of the Mitakshara on, and solely by virtue of, an adjudication by a High Court that one of the coparceners of the joint property is insolvent ? The question is one of importance and it depends on the true construction of the Presidency-towns Insolvency Act, 1909. In considering that question it has to be borne in mind that it is well established law that in families governed by the law of the Hitakahara no coparcener has in the joint family property any separate and defined share, although in Northern India at least a coparcener of such joint family property has a right to obtain a partition and on such partition he will obtain it separated and denned share of the joint family property. A creditor of a coparcener may, under certain circumstances, obtain a partition of his debtor's share in joint family property, and when in executing a decree a Court sells what is joint family property as the property of the judgment debtor the purchaser at the Court sale may under certain circumstances obtain a good title to what he purchases,

(3.) The facts of the present case are as follow :-Rai Bahadur Sri Kishen Das and his two sons, who were minors and the elder of whom is Sat Narain, the plaintiff, were Hindus governed by the law of the Mitakshara, and were possessed of joint family property as coparceners. It is not suggested that the property was self- acquired property of Sri Kishen Das. Sri Kishen Das on behalf of himself and his two sons was the manager of the property. On September 27, 1913, Sri Kishen Das by an order of the High Court of Bombay was adjudicated insolvent, and, by Section 17 of the Presidency-towns Insolvency Act, 1909, his property vested in the official assignee and became divisible among his creditors. Section 52 of the Act defines the property of an insolvent which shall or shall not be divisible among his creditors thus:- 52. (1) The property of the insolvent divisible amongst his creditors and in this Act. referred to as the property of the insolvent, shall not comprise the following particulars, namely:- (a) property hold by the insolvent on trust for any other person (b) the tools (if any) of his trade and the necessary wearing apparel, bedding, cooking vessel, and furniture of himself, his wife and children, to a value inclusive of tools and apparel and other necessaries as aforesaid not exceeding three hundred rupees the whole; (2) subject as aforesaid the property of the insolvent shall comprise the following particulars, namely:- (a) all such property as may belong to or be vested in the insolvent at the commencement of the insolvency or may be acquired by or devolve on him before his discharge; (b) the capacity to exercise and the take proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the insolvent for his own benefit at the commencement of his insolvency or before his discharge; and....