NILKANTHA NARAYAN TEWARI Vs. DEBENDRA NATH RAY

JUDGEMENT

(1.) This appeal arises out of a suit brought by the appellant, a Hindu son, to recover the whole of, or his interest in, the ancestral property, which was sold to the defendants by a receiver appointed in the insolvency of the plaintiff's father. The appeal therefore raises the question, which has often been agitated in the Courts in this country, regarding the effect on the interest of a Hindu son when his father is adjudicated an insolvent. Section 28(2), Provincial Insolvency Act (1920), is as follows: On the making of an order of adjudication, the whole of the property of the insolvent shall vest in the Court or in a receiver as hereinafter provided, and shall become divisible among the creditors....

(2.) The procedure for dividing the property of the insolvent among his creditors is provided by Section 59 of the Act which, in so far as is material, is in these terms: Subject to the provisions of this Act, the receiver shall, with all convenient speed, realise the property of the debtor and distribute dividends among the creditors entitled thereto, and for that purpose may (a) sell all or any part of the property of the insolvent.

(3.) It is quite clear from a perusal of these two sections that what vests in the receiver on an order of adjudication is the "property of the insolvent" and what the receiver is authorised by Section 59 to sell for the purpose of providing dividends for the creditors is the whole or any part of the "property of the insolvent." The question that falls for determination in the present case, therefore, is whether the undoubted right which the father would have had to sell the whole of the ancestral property, including his son's interest therein, in satisfaction of his own debt, provided that the debt was neither for an illegal or immoral purpose, is "property of the insolvent" within the meaning of the statute. By Section 2(1)(d) of the Act, it is provided that "property" includes Any property over which or the profits of which any person has a disposing power which he may exercise for his own benefit.