T S BALAVENKATASEETHARAMA CHETTIAR Vs. OFFICIAL RECEIVER

JUDGEMENT

(1.) The point for decision in this appeal is whether the Official Receiver in whom the property of an insolvent Hindu governed by the Law of Mitak-shara is vested under the Provincial Insolvency Act V of 1920 is entitled to sell the joint family property of the insolvent and his sons for his debts, they being neither illegal nor immoral. The Lower Court has held that he could and has upheld the sale by him. The appellants contend that he has no such power.

(2.) The rulings of this Court have been in favour of recognizing such power and holding such sales to be valid both in the Presidency Town and in the mofussil. [See Official Assignee of Madras V/s. Ramachandra Aiyar (1922) I.L.R. 46 M 54 : 43 M L J 569, Sellamuthu Servai, In re (1923) I.L.R. 47 M 87 : 46 M L J 86 (F B), Sankaranarayana Pillai V/s. Rajamani (1923) I.L.R. 47 M 462 : 46 M L J 314 and Kuppuswami Goundan V/s. Marimuthu Goundan ]. There was a difference of opinion as to whether the power to sell the joint property alone vested in the Official Assignee or Receiver or whether the undivided share itself of the sons vested in him. In the first three cases quoted above it Was ruled that the power alone vested but in Kuppuswami Goundan V/s. Marimuthu Goundan the opinion was expressed that the share itself vested. But all the cases were agreed that the Official Assignee or Receiver was entitled to sell the whole joint property and give a good title to the purchaser provided that the debts were such as the sons were, on account of their pious obligation, bound to pay from their joint property.

(3.) The question has again been raised now on account of the recent ruling of the Privy Council in Sat Narain V/s. Behari Lal (1924) I.L.R. 6 L 1 : 47 M L J 857 (P C) and it is contended that the result of that decision is to compel us to hold that neither the shares of the sons nor the power to sell such shares vests in the Official Receiver and that he can proceed against the sons share if at all only by way of suit. The Privy Council has no doubt clearly laid down that the shares of the sons do not vest in the Official Assignee. That decision was under the Presidency Towns Insolvency Act and one of the arguments used by their Lordships to arrive at their conclusion is based on the existence and the language of Section 52 of that Act, a section which finds no counterpart in the Provincial Insolvency Act. Nevertheless as the other arguments apply equally to the latter Act it seems to me that we must hold that the same principle governs cases under it in the mofussil. As a result we must overrule the decision in Kuppuswami Goundan V/s. Marimuthu Goundan in so far as it holds that the undivided share of the son itself vests in the Official Receiver.