KANHYALAL BHARGAVA Vs. BANWARI LAL

JUDGEMENT

(1.) This is an application for adjudication as insolvents of 19 members of a joint Mitakshara Hindu family who are alleged to be carrying on business under the firm name of Kishorelal Mukundlal at various addresses in Calcutta. That firm is alleged to be indebted to the petitioners in a sum of about rupees 75,000 on Khatapeta account. The petitioners were three members of a Mitakshara family trading as Radha Kisen Beniprasad at 10 Cotton Street, Calcutta. Kanhyalal is said to be the Karta of the family, Manoharlal is his brother and Baikuntha is the infant son of Kanhyalal who acts as his next friend. The petition was presented on 18 April 1935 and was ordered to be served on the debtors, the hearing being fixed for 21 May. The third petitioner Manoharlal died on 2 May, and his interest devolved on his brother Kanhyalal. Owing to Manohar's death the hearing was adjourned to 18 June and has since been adjourned on various occasions by consent. On 24 January 1935, a letter of demand was sent to the debtors and a reply was received dated 30 January from solicitors for 4 of the alleged debtors viz., Banwarilal, Budriprasad, Sangamlal and Samsunder who are represented on this application by the learned Standing Counsel.

(2.) The debtor family are the descendants of Dwarkaprasad who had 5 sons and for convenience I shall refer to the various alleged debtors according to the 5 branches of his family which these sons represent: (1) Harnamdas, (2) Mohanlal. These two branches are represented before me by Mr. Sen, (3) Kisorilal's branch represented by the learned Standing Counsel, (4) Kanhyalal represented by the learned Advocate-General, and (5) is Mukundlal's branch which is unrepresented. In January 1926, Protab Chandra, a member of branch 2, filed a suit for partition of the joint family properties. A preliminary partition decree was made on 14 February 1927 by the Subordinate Judge of Allahabad. There was an appeal from that decree and and on 13 January 1931 a consent decree was passed. It is clear from the pleadings in the partition suit that the Calcutta business of Kishorilal Mukundlal was included in the joint family properties being valued in the plaint at Rs. 30 lakhs. There were also numerous other businesses carried on under differrent names in the large towns of India and in Burma. They include a business in Allahabad where the partition suit was brought and where many of the alleged debtors reside.

(3.) The alleged debtors oppose this application on the ground that they ceased to be "partners" in the firm of Kishorilal Mukundlal on the filing of the partition suit in January 1926, which they claim formed a severance of the joint family and a cessation of the joint family business. Alternatively, they contend that their interest, at any rate in the Calcutta business, ceased in February 1927, the date of the preliminary decree, or in January 1931 when the decree was made by the appeal Court embodying the terms of settlement. They further contend that no act of insolvency has been committed and branches 1, 2 and 4 plead that it has not been established that this Court has jurisdiction within the meaning of Section 11, Presidency Towns Insolvency Act. I will deal first with the alleged acts of insolvency. These are based on Section 9 (g), Presidency Towns Insolvency Act, and are said to be notices of suspension of payment of debts. Two oral notices are alleged: (1) 28 February 1935 and (2) 5 March 1935, and two written notices in the form of letters dated respectively 30 January 1935 and 6 March 1935.