BONDALAPATI KANYAKA PARAMESWARAMMA Vs. MANDAVA VENKATARAMAYYA

JUDGEMENT

(1.) The question raised is, whether the father's adjudication defeats the decree-holder's rights in respect of the sons share in the property. The attachment was of the lands, that is to say, of the interest not only of the father but also of the sons. Subsequent to the attachment, the father was adjudicated an insolvent. It has been held in Seetharama Chettiar V/s. The Official Receiver, Tanjore and is now settled law, that what passes to the receiver on a father's adjudication, is not only the father's share in the property but also his power of disposal, under the Hindu Law, over the shares of the sons; it is equally clear that when the sons shares are attached, the attachment puts an end to the father's power of disposal. When therefore an attachment has been effected of the sons shares before the father's adjudication, there is no power of disposal which can pass to, and vest in, the Receiver.

(2.) What happened in the present case was, that the Official Receiver, in whom the father's share vested on his adjudication, sold not only his interest in the lands but also that of the sons. The decree-holder (the Petitioner) thereupon sought in execution, by way of a prohibitory or del", to attach the money in the Receiver's hand, representing the sale proceeds of the sons shares in the property. The Lower Court, upholding the Receiver's objection, has held that he is not liable to pay the amount to the decree-holder. This conclusion is clearly wrong. If the Receiver had not intervened, the decree-holder would have been entitled to bring to sale the sons shares and, when the sale is effected, to receive the proceeds towards his decree. How the purchaser of the son's shares has to work out his rights, is a matter with which the decree-holder is not concerned. The position cannot, in law, be altered, by reason of the mere fact that what was immoveable property has been converted into money. The Official Receiver, Coimbatore V/s. Arunachalam Chettiar (1933) 66 M.L.J. 412 (decided by Beasley, C.J., and Bardswell, J.,) is a case on all fours and fully supports my view. Instead of the sons shares being sold by the Court, the Official Receiver sold them, wrongfuly in my judgment, and that circumstance cannot deprive the judgment-creditor of his right. I must therefore set aside the lower Court's order and hold that the petitioner is entitled to 5/6ths of the sale proceeds. The lower Court will ascertain the amount and direct the Official Receiver to pay it to the petitioner.

(3.) The Civil Revision Petition is allowed and as regards the costs, I direct the Official Receiever to pay them personally. He persuaded the lower Court to uphold his objection and, as a public officer, he ought to have either appeared here, to support the judgment or intimated in some way, that he was not going to oppose the petition; that is why I make him liable for the costs personally.