AI Structured Summary
Not yet generated for this judgment
Judgment
Norman Macleod, Kt., C.J.—The plaintiff sued for a declaration that the suit property was not liable for the satisfaction of the decree obtained by defendant No. 1 against defendant No. 2 in Suit No. 564 of 1914 in the Court of the Subordinate Judge at Bagalkot on November 1, 1915. The first defendant had obtained a decree against the second defendant and his father, who was adjudicated an insolvent on November 10, 1916, in the Court of the Subordinate Judge, Belgaum. The plaintiff was a receiver of the estate of the insolvent father of defendant No. 2. The suit property had been attached before judgment in Suit No. 564 on December 20, 1914. After succeeding in the suit defendant No. 1 filed dark hast No. 271 of 1916 in the Court of the Subordinate Judge at Bel gaum, on June 29, 1916, and the property in suit was again attached by that Court. When the second defendant''s father was adjudicated insolvent, the attachment on his interest of the property would have to be released, and his interest in the property would vest in the receiver. In the last decision on the point (Sat Narain v. Behari Lal (1924) L.R. 52 IndAp 22 27 Bom. L.R. 135), it was held by the Privy Council that-
Upon a Hindu being adjudicated an insolvent under the Presidency-towns Insolvency Act, 1909, the property of the joint Hindu family consisting of himself and his two sons does not thereby become vested in the official assignee, although u/s 52, Sub-section 2, of the Act, or in some other way, that property may be made available for the payment of his just debts.
So that the interest of the second defendant would not vest in the receiver on the insolvency of his father, and the plaintiff in order to get the declaration he asked for had to contend that the right of the father of a joint Hindu family to dispose of family property for legal necessity had become vested in him. Speaking for myself, I do not think that when the manager of a joint Hindu family is adjudicated insolvent, the power which he had before his insolvency to dispose of family estate for proper purposes, must be considered as vesting in the receiver or Official Assignee. The first defendant, therefore, is entitled to execute his decree against the solvent son irrespective of the rights which were vested in the receiver with regard to the interest of the second defendant''s father.
The appeal is dismissed with costs.
Coyajee, J.
I concur in holding, on the facts of this case, that the decree of the lower appellate Court is right.