GHANASHAM Vs. YOOWARJ

JUDGEMENT

(1.) 1. The applicant has been adjudicated as an insolvent by an order of the Additional District Judge, Bhandara, on 22nd November 192S. Subsequently he applied for a discharge, but the application was opposed by the creditors, two of whom stated that he owned 24 acres of land, which was "all tenancy land of occupancy right and of which the annual letting value was Rs. 500. They further stated that they were willing to take that land on lease at Rs.500 a year. Another creditor stated that he was willing to take all the land of the applicant for the year 1930-31 for the sum of Rs. 601, of which Rs. 51 would be payable for the rent of the holding and Rs. 100 should be paid to the insolvent for his maintenance. Upon that the Judge of the insolvency Court passed an order leasing out the land of the insolvent to this last creditor Ratansingh for the year 1930-31 for Rs. 600. The Judge added in his order that the amount of Rs. 450 would be available for distribution among the creditors and stated that, as the debts amounted to Rs. 5000, if the creditors continued to. take the land on lease for about five years, namely, eight annas in the rupee would be paid off.

(2.) A lease for 1930-31 "Was therefore granted and the order for discharge was postponed. That order was passed on 16th January 1930, An appeal was preferred to the District Judge oh the ground that the insolvency Court had no right to lease out the occupancy land of the insolvent, because by Section 12(2) C.P. Tenancy Act, the land did not vest in the insolvency Court. The District Judge however found that the insolvency Court had the power Under Section 12(1) of the Act to lease out the land for a period not exceeding one year. Another ground was raised about the lease having been granted more than two months before the commencement of the agricultural year, but that was held against the insolvent and has not again been raised in revision. The only question therefore to be considered is whether the insolvency Court has the power to lease out occupancy land belonging to an insolvent or whether such land is completely exempt and cannot be touched by an insolvency Court.

(3.) THE learned counsel for the non-applicants cited Chairman, District Board, Monghyr v. Sheodntt Singh 1926 Pat 438, Haridas Himatlal v. Lallubhai Mulchand 1931 Bom 50 and Kanhaiyalal v. Dabila 1933 Nag 150 to show that an insolvency Court should proceed against the estate of the insolvent in certain matters, even though the property did, not vest. I would however point out that all the cases cited refer to a Hindu joint family and the powers of an insolvency Court against a. member of such a family, who has been, adjudicated an insolvent, and his share in the family property. Such decisions however are not analogous to the present case, where there is an express prohibition against alienation and where it has been clearly held that the property does not vest in the insolvency Court, I hold therefore that the view taken by the lower Courts is incorrect and that an insolvency Court has no power to lease out occupancy land of an insolvent even for the period of one year. The order of the insolvency Court regarding the lease of the land is there-; fore set aside. Costs of this application will be borne by the non-applicants. I fix pleader's fees at Rs. 25. Costs of the appeal in the lower Court will be borne by the respondents.