BHAGWANDAS Vs. LAKSHMI CHAND

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for declaration as to the plain- tiff's ownership in a certain property. Munna Lal and his three sons were carrying on an ancestral business under the name of firm Gobind Ram Munna Lal and became heavily indebted. On the application of some of the creditors the firm was declared insolvent on 1 August 1922. In the application the firm had been described as the firm Gobind Ram Munna Lal through Munna Lal Radhe Lal and Brij Mohan, and the name of Arnolak Chand, the youngest son of Munna Lal, was somehow omitted from the application. But it is noteworthy that it was the firm itself which was adjudicated as insolvent and not the individual members of the family.

(2.) The present defendant-appellant obtained a decree against the firm through the four persons on 14 November 1922. An objection had been taken in the suit that the defendants were insolvents and they could not be sued separately but the Court overruled that objection on the ground that a decree could be given on certain conditions and pointed out that the decree-holder would of course take the decree to the insolvent; Court and get a rateable distribution of the assets along with the other creditors. In the Insolvency Court a composition scheme was submitted and approved by the Court on 16 May 1924, to which the present appellants also agree. In accordance with the composition scheme one Ram Babu was appointed receiver to the estate and he took charge of the entire family property including the undivided shares of all the members. In order to strengthen the position of the receiver Amolak Chand, whose name had been left out from the application, executed a deed of release on 10 July 1924, relinquishing all claim to any share in, the family property. It was after this release that the present defendant in execution of the decree got Amolak's share attached on 14 May 1925. On 5 February 1925, Ram Babu the receiver sold the property to the present plaintiff. It, was after the sale that the defendant-appellant purchased Amolak's share at auction. We are not concerned with the result, of the finding in a previous proceeding which took place in 1927 to which neither the official receiver nor the present respondent was a party.

(3.) The Courts below have disallowed the pleas of the defendants and have decreed the claim holding that the property validly passed to the present plaintiff in preference to the defendant. There are several grounds on which the defendant's case must fail.