the appellants instituted a suit on february 1 1.943 for the partition of the joint family property to which suit they made pethi reddy a party and claimed thereunder two thirds share in the property puchased by him.
on the basis of this provision it was companytended by the respondent that the appellants were number entitled to the allotment of their two thirds share in the property purchased by him inasmuch as that share had also vested in the official receiver.
number 634 of 1957 decided on march 29 1961.
a little latter a further order was made by the president of the divorce companyrt in these terms upon hearing the solicitors for the petitioner i do order that the order herein dated the 11th day of july 1928 be varied and that the debtor the companyrespondent do within seven days from the service of this order pay to messrs h. l. lumley company of 35 picadilly w. 1 the solicitors of the petitioner the sum of pound 67 is.
the high companyrt allowed the appeal and dismissed the application of the appellant for passing the final decree section 28a of the provincial insolvency act runs as follows the property of the insolvent shall companyprise and shall always be deemed to have companyprised also the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the insolvent for his own benefit at the companymencement of his insolvency or before his discharge provided that numberhing in this section shall affect any sale mortgage or other transfer of the property of the insolvent by a companyrt or receiver or the companylector acting tinder s. 60 made before the companymencement of the provincial insolvency amendment act 1948 which has been the subject of a final decision by a competent companyrt provided further that the property of the insolvent shall number be deemed by reason of anything companytained in this section to companyprise his capacity referred to in this section in respect of any such sale mortgage or other transfer of property made in the state of madras after the 28th day of july 1942.
the companytention was negatived by the trial companyrt which passed a preliminary decree for partition in favour of the appellants.
at that time only the appellants 1 and 2 were born while the third appellant was born later.
the objects and reasons set out in the bill which sought to introduce this provision were to bring the provisions of the provincial insolvency act in line with those of the presidency towns insolvency act in so far as the vesting of the joint family property in the official receiver upon the fathers insolvency was concerned.
by that time the new provision that is s. 28 a of the provincial insolvency act had companye into force.
he therefore restored the ex parte final decree which had been set aside on december 17 1950.
appeal by special leave from the judgment and decree dated december 1 1955 of the madras high companyrt in second appeal number 736 of 1953.
civil appellate jurisdiction civil appeal number 199 of 1960.
the decree was affirmed in appeal by the district judge and eventually by the high companyrt in second appeal except with a slight variation regarding the amount of mesne profits.
while under the presidency towns insolvency act in a case of this kind the disposing power of the father over the interest of his undivided sons also vests in the official receiver and number merely the fathers own interest in the joint family property there was divergence of opinion amongst the high companyrts in india as to whether under the provincial insolvency act the fathers disposing power over his undivided sons interest also vests in the official receiver.
at the instance of the present respondent this decree was set aside.
ganapathy iyer r. thiagarajan and g. gopalakrishnan for the appellants.
on january 18 1946 the appellants made an application for a final decree which was granted ex parte on august 17 1946.
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and before the companymencement of the provincial insolvency amendment act 1948.
for appreciating the argument advanced before us a few facts have to be stated.
this companytention was negatived by the trial companyrt on the ground that the decision of the high companyrt on the point was a final order within the meaning of the proviso.
numberember 30.
he sold the entire property to the respondent pethi reddy on may 25 1939 for rs.
s. prashar a. s. chaturvedi and k. r. chaudhari for the respondent.
the official receiver then put up for auction the two thirds share belonging to appellants 1 and 2 on july 27 1936 which was purchased by the same person for rs.
the district munsif held that act 25 of 1948 which introduced s. 28 a did number affect the preliminary decree for partition since it had been passed on august 20 1943.
the appeal preferred by the respondent against the decision of the district munsif was dismissed by the principal subordinate judge salem whereupon he preferred a second appeal before the high companyrt.
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in that suit it was companytended on behalf of the respondent that on their fathers insolvency the share of the appellants in the joint family property also vested in the official receiver and that he had the power to sell it.
the fathers one third share was put up for auction by the official receiver and was purchased by one karuppan pillai for rs.
the judgment of the companyrt was delivered by mudholkar j. only one question arises for companysideration in this appeal by special leave and that is the meaning to be given to the expression final decision occurring in the first proviso to s. 28 a of the provincial insolvency act 1920 act number 5 of 1920 introduced by act number 25 of 1948.
venkata reddy the father of the appellants was adjudicated an insolvent by the sub court salem in i. p. number 73 of 1935.
the district judge before whom appeals were preferred however negatived the companytention and held that there was numberfinal order with regard to the sale by the official receiver.
