WASUDEO KESHAO KHANDELKAR Vs. DEVIDAS GOVINDRAO GANORKAR

JUDGEMENT

(1.) THE question that has been referred to us for decision is as follows: Whether the power of a Hindu father to sell the interests of his sons in the joint family property for the discharge of his antecedent debts, which are not tainted with illegality or immorality, vests, on his adjudication as an insolvent under the Provincial Insolvency Act, in the insolvency Court or the Receiver appointed by the Court and whether the Court or the Receiver, as the case may be, has a right to sell the interests of the sons of the insolvent for the satisfaction of the debts of the insolvent? and the reason why this question has been referred to the Pull Bench is clearly set out in the referring order.

(2.) AS the order states, neither the Court of the Judicial Commissioner nor this Court has ever entertained any doubt as to the right of the Receiver in an insolvency case to sell, in the case of the insolvency of a Hindu father, the interests of his sons in the joint family property to satisfy his antecedent debts, provided such debts are not tainted with illegality or immorality. The extreme view that the interests of the sons in the joint family property itself passed on with the interests of the father, which is a pro-position that was negatived in Sat Narain v. Behari Lal has never been held here. In Kanhaiyalal v. Dablia Bari it was laid down that when the manager of a joint Hindu family governed by the Mitakshara Jaw, is adjudicated an insolvent, then, assuming that the debts payable by the manager are such as are binding on the coparceners, their undivided' interests in the joint family property do not vest in the Receiver; but the power of disposal of such interests which the manager possesses under the Hindu law for satisfaction of such debts, passes on to the Receiver under Section 28(2), Provincial Insolvency Act. It will be noted that this case is one of a manager. The argument is of course stronger in the case where the manager is the father.

(3.) SUBSEQUENT to the decision of their Lord-ships of the Privy Council in the connected-cases of Sat Narain v. Behari Lal and Sat Narain v. Sri Kishen Das there have been two diametrically opposed interpretations, the earlier being a Pull Bench decision of the. Patna High Court in Biswanath Sao v. Official Receiver and the later a Pull Bench decision of the Madras High Court in Ramasastrulu v. Balakrishna Rao A.I.R. 1942 Mad. 682. There is also the decision in Bijay Kuma v. Rama Pati Basu but that was a decision concerning the power of the manager to deal with the property of his coparceners under the Dayabhaga school. Any dicta concerning what the law might be in the case of the karta of a Mitakshara Hindu joint family would be obiter and do not, in our opinion, call for consideration. 3. It has been contended before us in support of the view that these connected decisions of their Lordships of the Privy Council have disrupted the view, taken not only in this Court but universally in India, of the power of a Receiver to sell the son's interests in the joint family of which the father and manager have become insolvents, that the direct ruling of their Lordships that the power does exist is applicable only; to cases arising out of the Presidency Towns Insolvency Act and is based on a consideration, of the terms of Section 52(2)(b) of that Act, corresponding provisions of which do not exist in the Provincial Insolvency Act of 1920, and that it has been laid down by their Lordships that this power to sell is not "property" as defined in the appropriate clause of Section 2, the definition section of either Act and that consequently as it is not "property" and nothing corresponding to Section 52 exists in the Provincial Insolvency Act, there re-mains now no power in the Receiver to sell or to apply the power in the way the insolvent father could have applied it. That is the view taken in the Madras High Court in contra-distinction to the view expressed some six years earlier in the Patna High Court. Their Lordships of the Madras High Court have referred to the Patna view in the following words: The only High Court which has considered the question since the delivery of the judgment in Sat Narain v. Sri Kishen Das is the Patna High Court. In Biswanath Sao v. Official Receiver . Full Bench of that Court held that the father's power to sell vested in the Official Receiver under the Provincial Insolvency Act. We have considered that judgment, but we do not find anything in it which tends to shake the opinion which we have just expressed.