MINOR KANDASWAMI PILLAI Vs. TNCKANDASWAMI PILLAI

JUDGEMENT

(1.) On 18 April, 1933, I.P. No. 27 of 1933 was filed to adjudicate the father of the petitioners herein an insolvent; and he was adjudged an insolvent on the 1st November, 1934. On the 8 March, 1940, the adjudication was annulled, because the insolvent had not applied for discharge within the time allowed; but at the same time the Court passed an order directing that the property should continue to vest in the Official Receiver. The first petitioner was born in April, 1934, and the second petitioner in May, 1939. They filed O.P. No. 37 of 1944 for permission to sue in forma pauperis to have the sale of their shares in the properties sold by the Official Receiver in 1939 and 1942 set aside. The learned Subordinate Judge dismissed the petition on the ground that the allegations contained in the draft plaint showed no cause of action.

(2.) It is argued here that as far as the first petitioner was concerned, he was born before his father was adjudicated an insolvent and so was entitled to share in the family properties as soon as he was born. It is further argued that in any event on the 8 March, 1940, when the adjudication was annulled, the petitioners acquired a right to the properties, which were family properties, and were therefore entitled to maintain a suit to have the alienation set aside.

(3.) With regard to the first point there is no doubt that the learned Subordinate Judge was right. Section 28(7) of the Provincial Insolvency Act states, An order of adjudication shall relate back to, and take effect from, the date of the presentation of the petition on which it is made.