Mattapalli Appa Rao vs Ch. Ramamurthi and Others

Kunhi Raman, J.—This Civil Revision Petition arises out of certain insolvency proceedings pending in the Court of the learned Subordinate

Judge of Cocanada (I.A. No. 204 of 1937 in I.P. No. 29 of 1932). The petitioner was adjudged insolvent and all his properties became vested in

the Official Receiver of East Godavari. On an application made by the petitioner u/s 66(2) of the Provincial Insolvency Act, it is stated that a

monthly allowance of Rs. 50 out of the estate has been made in his favour by the learned Subordinate Judge. While this order was in force, the

petitioner presented another application for an allotment of Rs. 4,000 to be made for celebrating the marriage of his daughter who had just attained

the age of 14 years. It was conceded in the Subordinate Judge''s Court that this amount included a sum of Rs. 2,000 which petitioner wanted for

''katnam'' (dowry). The balance of Rs. 2,000 was claimed by him for meeting the actual expenses of the marriage. The learned Subordinate Judge

has held that in any event, the petitioner was not justified in claiming Rs. 2,000 to enable him to give it as dowry at the time of the marriage of his

daughter and that it was not open to him to claim the balance of Rs. 2,000 u/s 66(2) of the Provincial Insolvency Act. In the course of his order the

learned Subordinate Judge has recorded that in his opinion, a sum of Rs. 500 would be sufficient for meeting the expenses of the marriage of the

petitioner''s daughter. This however was only an observation made by him in the course of his order.

On appeal to the learned District Judge of East Godavari, the order made by the learned Subordinate Judge was confirmed and the appeal was

dismissed. It is against this order that the present revision petition is filed.

The learned advocate for the petitioner contends that the property of the insolvent must be deemed to have vested in the Official Receiver

subject to all the liabilities that could have been enforced against it in the hands of the insolvent himself. In support of this proposition he has cited

certain English decisions where the view taken is that the trustee in bankruptcy stands in the position of the bankrupt, that he takes the property of

the insolvent subject to rights of third parties and that he is in effect, the legal representative of the bankrupt. Ex parte Holthausen : In re Scheibler

(1874) 9 Ch. Ap. 722, In re Eastgate : Ex parte Ward (1905) 1 K.B. 465 and In re Mapleback : Ex parte Caldecott (1876) 4 Ch. D. 150. He

has also cited the case reported in Sheobaran Singh v. Kulsum-un-nissa (1927) 52 M.L.J. 658 : L.R. 54 IndAp 204 : ILR 49 All. 367 , where a

right of pre-emption to which a third party was entitled with regard to certain property of the insolvent was enforced subsequent to insolvency. The

substance of these decisions has been summarised in Mulla''s commentaries on the Provincial Insolvency Act where the learned author states that

the property which the Official Receiver takes is the property of the bankrupt exactly as it stood in his person with all its advantages and all its

burdens.

The learned advocate for the respondent, on the other hand, argues, that according to Hindu Law the creditor''s rights are recognised as

supreme even as against the sons of the insolvent and that there is no warrant for the claim put forward on behalf of a daughter. He cites the

decision reported in Sundan Animal v. Subramania Aiyar ILR (1902) 26 Mad. 505, in support of his contention. There a wife had expended

moneys for celebrating her daughter''s marriage and subsequently sued her husband for recovering the amount so expended but it was held that she

was not entitled to recover. He also relies on the decision reported in Jawahar Singh v. Parduman Singh ILR (1932) 14 Lah. 399, where it is

observed in the judgment that:

It is settled law that the debts contracted by a Hindu governed by Mitakshara school take preference over the right of maintenance of his wife and

minor children.

In Mayne''s Hindu Law at page 429, the case-law relating to this subject has been summarised:

In cases governed by the Mitakshara law a father may sell or mortgage not only his own share but also the share of his male issue in family

property, for the purpose of satisfying antecedent debts of his own not incurred for any family necessity or benefit, provided they are not immoral

or illegal, and the sale or mortgage may be enforced against his sons by a suit or proceedings to which they are not parties...

A creditor may enforce payment of the personal debt of a father not being illegal or immoral, by attachment or sale of the entire interest of father

and sons in the family property and it is not absolutely necessary that the sons should be parties either to the suit itself or to the proceedings in

execution.

In view of these authorities, it is not possible for the petitioner to contend that the daughter is entitled as a matter of right to claim the amount

mentioned in the petition from out of the estate of the insolvent as against the creditors of the insolvent. The application, as already stated, was

presented u/s 66(2) of the Provincial Insolvency Act. This clause of the section is worded as follows:

The Court may from time to time make such allowance as it may think just to the insolvent out of his property for the support of himself and his

family but such allowance may at any time be varied or determined by the Court.

It will be seen that the making of the allowance is left to the discretion of the Court. It is not possible to hold that an application like the present

where a lump sum claimed on behalf of the insolvent for meeting the marriage expenses of his daughter will come strictly within the scope of this

section. I am prepared to hold that under the category of ""allowance for the support of himself and his family"" the expenses that may be necessary

for celebrating the marriage of the daughter of the insolvent may be brought. Therefore, the proper course for the petitioner to adopt is to ask for

an increase in his allowance for the period during which he contemplated celebrating the marriage of his daughter. Such an application would be

dealt with by the Court bearing in mind the considerations that ought to prevail indisposing of applications u/s 66(2) of the Provincial Insolvency

Act. The claim can certainly not be made as a matter of right for there is no authority for holding that the insolvent has a right to claim out of his

estate the expenses that he contemplates incurring for celebrating the marriage of his daughter. In these circumstances, I am not satisfied that the

view taken by the lower Courts is wrong. The petitioner may, if so advised, make an application for increasing the allowance already made to him

by the learned Subordinate Judge but the petition that was filed by him in the learned Subordinate Judge''s Court out of which this revision petition

arises was clearly not sustainable. This Civil Revision Petition must therefore be dismissed. I make no order as to costs.