A L S P P L SUBRAMANIAM CHETTIAR BY AGENT NARAYANAN AIYAR Vs. ANNAMALAI CHETTIAR BY AGENT RAMASWAMI AIYAR

JUDGEMENT

(1.) This petition raises a question with regard to the right to rateable distribution given by Section 73 of the Civil P. C., but when the authorities are examined it is clear that they negative the petitioner's contention. In 1931 the petitioner obtained a money decree against a grandfather, his son and his son's son. The respondent had previously obtained a money decree against the grandfather and the son, but not against the grandson. In 1931, in separate proceedings, the grandfather and the son were adjudicated insolvents. In 1937 the petitioner filed an application for execution of his decree and asked for the attachment of the grandson's interest in the family property. Attachment was ordered and the grandson's interest was sold on 31 August, 1937. Before the sale took place the respondent filed an application for the execution of his decree, and he also asked for the attachment and sale of the grandson's share in the family property. On the strength of this application the respondent claimed to be entitled to share rateably in the sum of Rs. 800, which was the amount realised in the execution proceedings instituted by the petitioner. The petitioner objected to the respondent's claim to rateable distribution, but his objection was overruled by the District Munsif of Dharapuram in whose Court the execution petitions were filed and the assets realised. The District Munsif, in rejecting the petitioner's contention, relied on the decision in Palaniappa Chettiar V/s. Palani Goundan . The petitioner asks this Court to set aside the District Munsif's order under its revisional powers.

(2.) It is now well settled law that where a father who is joint with his son becomes insolvent, the right of realising the son's share in the family estate under the pious obligation rule devolves upon the Official Assignee or the Official Receiver as the case may be. But, if before the Official Assignee or the Official Receiver takes steps to en force that right, a judgment- creditor of the father attaches the son's interest in the estate, the power of the Official Assignee or Official Receiver to sell the son's share is lost. See Sat Narain V/s. Behari Lal (1924) 47 M.L.J. 857 : L.R. 52 I.A. 22 : I.L.R. 6 Lah. 1 (P.C.), Seetharama Chettiar V/s. Official Receiver, Tanjore , Sat Narain V/s. Sri Kishen Das : Same V/s. The Bank of Upper India (1936) 71 M.L.J. 812 : L.R. 63 I.A. 384 : I.L.R. 17 Lah. 644 (P.C.), Gopalakrishnayya V/s. Gopalan and Arunachalam V/s. Sabaratnam Therefore, as the result of the petitioner's attachment of the grandson's share the Insolvency Court lost all its interest in that share, which then became available to the petitioner as the executing creditor and to all persons who became entitled to rateable distribution under Section 73 of the Civil P. C.. Before the proceeds of the grandson's property were brought into Court, the respondent field his application for execution and thereupon became entitled to rateable distribution.

(3.) On behalf of the petitioner the argument has been advanced, that the respondent's decree was not obtained against the same judgment-debtor and therefore Section 73 does not apply, but this argument cannot be accepted. There is ample authority for holding that where a money decree is passed against a grandfather who is joint with his son and grandson it must be taken to be a decree passed against the son and the grandson to the extent of their interests in the family property as they are liable to that extent for his lawful debts. In Ramanathan Chettiar V/s. Subramania Sastrial , where the decree of one of two judgment- creditors was against the father while the decree of the other judgment creditor was against the father and his son, but the properties from which the assets had been realized by sale were the ancestral properties of the family of which the father and son were undivided members, White, C.J., held that the decrees were "against the same judgment-debtor" for the purpose of Section 295 of the Code of 1882, to which Section 73 of the present Code corresponds. In Ramakrishna Chettiar V/s. Viswanathan Chettiar (1935) 69 M.L.J. 276 : I.L.R. 26 Mad. 179, a Full Bench of this Court (Beasley, C.J., Cornish and Pandrang Row, JJ.) held that the legal representative of a deceased person against whom a decree was passed in his life time but which was sought to be executed against his property in the hands of his legal representative-was the same judgment-debtor within the meaning of Section 73. Pandrang Row, J., in whose judgment Beasley, C.J., concurred, observed that it was obvious that a strict literal construction of the expression, "the same judgment-debtor" could not be adopted in the sense that the decrees must be against the same persons eo nomine, and the weight of authority appeared to favour a liberal construction of the expression "the same judgment- debtor". The decision of White, C.J., in Ramanathan Chettiar V/s. Subramania Sastrial , was referred to with obvious approval.