IN RE: A N B BALUSWAMY IYER AND A N B NARASIMHA IYER; THE OFFICIALASSIGNEE OF MADRAS Vs. ANRAMACHANDRA IYER

JUDGEMENT

(1.) This appeal was argued on the assumption that the decision in Jagannatha Rao v. Viswesam (1924) I.L.R. 47 Mad. 621 : 46 M.L.J. 590 was correct, but when arguments were completed judgment was reserved until the decision of the Full Bench, to which the question of the correctness of the above ruling-had been referred, was available. That decision in Subramania Aiyar V/s. Sabapathi Aiyar (1927) I.L.R. 51 Mad. 361 : 54 M.L.J. 726 (F.B.) has now confirmed Jagannatha Rao V/s. Viswesam (1924) I.L.R. 47 Mad. 621 : 46 M.L.J. 590 and therefore the original arguments hold good.

(2.) In this case the insolvent was adjudicated on 2nd December, 1919, and a partition deed executed on 26 November, 1919 has been held to be void as against the Official Assignee. On 1 April, 1920, the Official Assignee took out a notice of motion asking that the partition deed should be declared void and for an order that the interest of the minor sons in the family property should be vested in the Official Assignee. This motion formed the subject-matter of O.S.A. No. 49 of 1921 and the judgment is reported in Official Assignee of Madras v. Ramachandra Aiyar (1922) I.L.R. 46 Mad. 54 : 43 M.L.J. 569. It was then held that the interest of the minor sons in the property did not vest in the Official Assignee but that, inasmuch as the Official Assignee stood in the shoes of the insolvent, he could alienate the minor sons interest in the joint property for the purpose of paying the insolvent's debts unless the debts were incurred for illegal or immoral purposes. It was also ordered that the Official Assignee should take possession of the joint property. The question to what extent the Official Assignee could sell the interest of the minors in order to discharge their father's debts was left undecided, but his right to exercise the powers of the father was duly recognised and the minor sons were parties to the order. O.S.A. No. 49 of 1921 was presented on 21 April, 1921 and the order was passed on 1 August, 1922. Subsequently the sons filed a suit O.S. No. 157 of 1922 in the Sub-Court of Madura for partition and what we have now to decide is what effect the filing of this suit has upon the rights of the Official Assignee, the contention on the part of the minors being that the filing of the suit constituted a separation of status in the family and that therefore the father's power to sell their interests is extinguished. Mr. K.S. Krishnaswami Aiyangar for the Official Assignee contested this proposition on three grounds. He first contended that the power of sale of his sons interest that is vested in the father under the Hindu Law arises from and is co-extensive with the sons pious obligation to pay the father's debts. There is a great deal of force in this argument, for it has frequently been held that the father's power to sell is derived from the sons pious obligation to pay and consequently the logical conclusion might well be that the power and the obligation are co-extensive. The question does not appear to have been discussed in any of the reported cases, but it is now I think too late to put forward such a proposition for it has frequently been taken for granted that the father's power to sell ceases as soon as the sons acquire a separate divided interest in the property. This principle was enunciated in Krishnaswami V/s. Ramaswami (1899) I.L.R. 22 Mad. 519 : 9 M.L.J. 127 where the proposition was taken for granted, it being observed that. The father under the Hindu Law is entitled to sell on account of such debt the whole of the ancestral estate. This necessarily implies that at the time the property is seized it remains the undivided estate of the father and the son. If the estate were divided the father could not sell what does not fall lo him in the division.

(3.) This case was followed in Rathna Naidu V/s. Aiyanachariar , and treated as authority for holding that where the estate is divided the father cannot sell what does not fall to him in the division. In Kameswaramma V/s. Venkatasubba Rao (1915) I.L.R. 38 Mad. 1120 : 27 M.L.J. 112 it was held that although a Hindu son is liable for the surety debt of his father to the extent of joint family property which came to his hands at partition, yet a decree for such debt obtained against the father before partition is not executable after partition against the son and the joint family property allotted to him, the decision being put upon the ground that when execution was taken out the property had ceased to be joint family. Again in Venkanna v. Srinivasa Deekshatulu (1918) I.L.R. 41 Mad. 136 : 33 M.L.J. 519 Wallis, C.L., observes- This Court has adhered to the view of Turner, C.J. in Ponnappa V/s. Pappuvayyaugar (1882) I.L.R. 4 Mad. 1 and has held in a series of cases that, as the effect of partition is to put an end to the father's right to sell the son's share for an antecedent debt, it also puts an end to the creditor's right to sell the son's share to sale during his lifetime.