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Judgment
Horwill, J.—The present petition is against a very short order of the District Judge of Nellore dismissing the petitioner''s application to
appeal in forma pauperis.
The facts as represented by Mr. Umamaheswaram are that the petitioner''s suit was to set aside a partition of property belonging to the
petitioner and his brothers and to re-partition the property. During the pendency of the suit the petitioner became an insolvent and the Official
Receiver was added as a supplementary plaintiff. The suit was subsequently dismissed. As the Official Receiver refused to appeal, the petitioner
sought to do so in forma pauperis. Thereupon, the District Judge passed this short order, "" The insolvent cannot be permitted to appeal by himself
in forma pauperis. No notice is necessary on this. Dismissed.
Mr. Umamaheswaram contends that the learned District Judge erroneously assumed that no insolvent can appeal. He contends that what vests
in the Official Receiver is merely the property of the insolvent and that unless the suit--and therefore the appeal--relates to the insolvent''s property,
there can be no objection to the filing of a suit or an appeal by an insolvent. He refers to a recent decision of a Full Bench of this Court in
Chidambaram v. Sellakumara ILR (1942) Mad. 1 in which it was considered whether a creditor had a right to file a suit u/s 53 of the Transfer of
Property Act to set aside an alienation made by an insolvent. The learned Judges held that the creditor could; and for two reasons : one was that a
very important right was given to a creditor u/s 53 of the Transfer of Property Act and Section 28 of the Provincial Insolvency Act cannot be
deemed to take away that right. The second reason was that the alienation made by the insolvent was merely voidable and not void and that
therefore the creditor was litigating not with regard to the property of the insolvent but with regard to property that belonged to the alienee. Even
though that principle be applied to the case under consideration, the order of the District Judge dismissing the petitioner''s application would still be
right. It may be true that the suit related to property which belonged to the petitioner''s brothers under the earlier partition and had not yet become
the property of the insolvent; but it is equally true that the suit related to the property that fell to the share of the petitioner in the partition and is still
his. A suit for partition being one and indivisible, it cannot be regarded as a suit with regard to (a) the property of the insolvent with regard to which
he cannot prosecute a suit or an appeal; and (b) a suit with regard to property belonging to the brothers with regard to which the insolvent can
prosecute a suit or an appeal. The suit and appeal do therefore relate to the property of the insolvent. That being so, both a suit and an appeal by
the insolvent are incompetent.
The petition is dismissed with costs.