HANUMANTHA GOWD Vs. OFFICIAL RECEIVER

JUDGEMENT

(1.) The appellant filed a petition under Section 4 of the Provincial Insolvency Act praying for a declaration that the Official Receiver in the insolvency of Hanumantha Gowd was not entitled to the share which would in the absence of any impediment have passed to the insolvent on the death of his brother Bhimana Gowd on the 21 March, 1944. The petitioner is a nephew of the insolvent who was adjudged in 1937. At the time of the adjudication the family consisted of the insolvent, his brother Bhimana Gowd and the petitioner who is the son of a deceased brother. When Bhimana Gowd died in 1944, the result, according to the present petitioner, would be that the share of the insolvent vested in the Official Receiver would not be increased at all by survivorship as a consequence of his brother's death and that the whole of the share of the deceased coparcener would pass by survivorship to the non-insolvent coparcener, the petitioner. This contention has been negatived by the trial Court.

(2.) Section 28(4) of the Provincial Insolvency Act prescribes that all property which is " acquired by or devolves on " the insolvent after the date of the order of adjudication and before his discharge shall forthwith vest in the Court or the Receiver. It cannot now be contended that the insolvency of a coparcener effects a separation of that coparcener from the joint family of which he is a member. He continues to be a coparcener and the decision of Venkataramana Rao, J., in Ldksh-mcman Chettiar V/s. Srinivasa fyengar which was pressed in the lower Court must be deemed no longer good law in the light of the Bench decision in Moony Suryanarayana-murthi V/s. Moony Veeraraju (1945) 1 M.L.J. 292 : I.L.R. 1946 Mad.54 to which one of us was a party. In the latter case it was held that, when the adjudication of a coparcener of a joint Hindu family was annulled, his share of the family property which was vested in the Official Receiver would revert to the former insolvent as family property and not as self-acquired property. That decision postulates the position that, when a man is adjudged an insolvent, his status in the joint family and his rights in the property of the joint family remain unchanged. It would therefore seem to follow that if by a death in the coparcenary the share of the insolvent coparcener is increased the benefit of the increase will accrue to the Official Receiver in whom that share is vested.

(3.) It has been contended that because any decrease in the insolvent's share by the birth of a further member in the family would not take away from the Official Receiver any part of the share of the insolvent as it stood on the date of the adjudication, it must logically follow that any increase of the share of the insolvent would not pass to the Official Receiver. But it seems there is no such logical consequence. The reason why the Official Receiver does not lose that which was vested in him is because the vesting amounts to an alienation which crystallizes the share of the insolvent to which the alienee is entitled as on the date of the adjudication. The reason why the Official Receiver is entitled to any subsequent increase of the insolvent's share is not because the Official Receiver is a coparcener in Hindu Law, but because by Section 28 (4) of the Provincial Insolvency Act he is entitled to all property which is acquired by or devolves on the insolvent; that is to say, it is the insolvent who by Hindu Law becomes entitled to the increase of his share and it is the statutory provision of the Provincial Insolvency Act, Section 28(4) which vests that increase in the Official Receiver.