OM PRAKASH Vs. MOTI RAM

JUDGEMENT

(1.) This appeal arises out of certain insolvency proceedings. One Lachhman Das became an insolvent and the Official Receiver, B. Moti Ram, took possession of a certain property of the insolvent and sold the same to a certain party. Two sons of the insolvent put in a petition before the learned District Judge praying that two- thirds of the property should not be delivered to the purchaser, but should be reserved for themselves. They said that the father had only a third share in the property, and that alone should go to the purchaser. The Official Receiver produced the case of Bawan Das V/s. C.M. Chiene AIR 1922 All 79 before the learned Judge, and following that case the learned Judge dismissed the petition of the sons. The sons have appealed.

(2.) It has been argued that the authority of this Court should be treated as having been overruled by a recent pronouncement of their Lordships of the Privy Council to be found reported in Sat Narain V/s. Behari Lal .

(3.) It has been said on the respondent's behalf that in this Court and in otherCourts the view has always been taken that where a father in a Hindu family governed by the Mitakshara law has been declared an insolvent, the receiver is entitled to sell not only the share of the father that will fall on him on the partition, but the entire property in his hand belonging to the whole family consisting of himself and his sons. This view is supported by the ruling of this Court referred to above. The case of Official Assignee V/s. Ram Chandra Ayyar AIR 1923 Mad 55 also takes the same view. Let us now consider the Privy Council case quoted by the learned Counsel for the appellant. A certain Hindu father, Rai Bahadur Srikishen Das, had two sons. The father was declared an insolvent. Thereafter the sons brought a suit for pre-emption with respect to certain property sold in the neighbourhood. The defence raised was that the father having been declared an insolvent, the entire family property vested in the receiver, and that, therefore, the sons had no such right left in the family property as would entitle them to maintain the suit for pre-emption. Their Lordships of the Privy Council considered several sections of the Presidency Towns Insolvency Act III of 1897 and came to the conclusion that the insolvency of the father did not deprive the sons of their right to maintain a suit for pre-emption. The following words from the judgment will bear quotation: It may be that under the provisions of Section 62 or in some other way that property (property of the sons) may in a proper case be made available for payment of the father's just debts; but it is quite a different thing to say that by virtue of his insolvency alone it vests in the assignee, and no such provisions should be read into the Act.