Judgement Consolidated Appeals (Nos. 23 and 24 of 1932) from two decrees of the High Court (January 20, 1926) affirming with modifications two decrees of the District Court of Delhi (April 13, 1916). In these consolidated appeals the question was whether the capacity of the father of a joint Hindu family, governed by the Mitakshara, to exercise his power to sell the joint family estate to enforce the pious obligations of his sons to discharge out of their interests his untainted antecedent debts vests in the Official Assignee on the father being adjudicated insolvent under the Presidency Towns Insolvency Act, 1909. The facts and the relevant statutory provisions appear from the judgment of the Judicial Committee. The High Court (Campbell and Dalip Singh JJ.), affirming the trial judge, held that under s. 52, sub-s. 2 (b), of the Presidency Towns Insolvency Act, 1909, the capacity to exercise the insolvents power to sell the joint family properties for his antecedent debts, so far as they were not incurred for immoral or illegal purposes, vested in the Official Assignee. The appeal is reported at ( 1926) I. L. R. 7 Lah. 376. 1936. June 15, 16, 18. Upjohn K.C. and Parikh for the appellants. The joint family, governed by the Mitakshara, consisted of a father and two sons. In the course of his management the father contracted debts, and in September, 1913, he was declared an insolvent under the Presidency Towns Insolvency Act, 1909. The Official Assignee claims that though only one-half of the property was vested in him he had some power to deal with the interest of the part which was not vested in him. The exact point which is left open for the Boards decision is to be found in Sat Narain v. Behari Lal. (( 1924) L. R. 52 I. A. 22, 39.) The direction in the decree of the High Court is objected to on two grounds (1.) That it was limited to unsold property, and thereby excludes properties not mortgaged to the bank which had been sold by the Official Assignee. (2.) It is entirely wrong, and quite inconsistent—-it treats the sons pious duty as by some implication a charge on the sons shares without any step being taken to have such charge declared. (2.) It is entirely wrong, and quite inconsistent—-it treats the sons pious duty as by some implication a charge on the sons shares without any step being taken to have such charge declared. In Brij Narain v. Mangla Prasad (( 1923) L. R. 51 I.A. 129, 139) the doctrine is summed up in a number of propositions, the second and third of which apply to this case. The Insolvency Act, 1909, deals only with the fathers creditors against the fathers estate, and the direction in the decree is wholly outside the action. [Reference was made to the Presidency Towns Insolvency Act, 1909, ss. 2 (e), 9, 46, sub-s. 3; ss. 49, 52, sub-ss. 1, 2; s. 76.] The manager has no power to deal with the family property except for necessity. The pious obligation is not general; it is very much limited. [Reference was made to Fakirchand Motichand v. Motichand Hurruckchand (( 1883) I. L. R. 7 13. 438.); Suraj Bunsi Koer v. Sheo Proshad Singh (( 1878-9) L. R. 6 I. A. 88,106.); and to Mullas Hindu Law, 8th ed., p. 355, para. 295.] This is a general power of sale to be exercised by the father for his own benefit simpliciter, and is a power conferred on him by the Hindu law. His only power to sell is to pay off antecedent debts. No distinction can be drawn between the language in s. 2 (e) and s. 52, sub-s. 2 (b), of the Act of 1909; it is really the same, and referring to it in Sat Narain v. Behari Lal (( 1924) L. R. 52 I. A. 22.) it is said (Ibid. 38.) " Sect. 2 seems to contemplate an absolute and unconditional power of disposal." If that be so, that language is equally applicable to s. 52. The Act does not mean, however, that the Official Assignee is to be put into a position in which he cannot possibly be—the Act cannot put him into the position of the father of the undivided family. In Mullas Hindu Law, 8th ed., at p. 366, s. 298, there is a list of eight classes of debts excluded. The Act does not mean, however, that the Official Assignee is to be put into a position in which he cannot possibly be—the Act cannot put him into the position of the father of the undivided family. In Mullas Hindu Law, 8th ed., at p. 366, s. 298, there is a list of eight classes of debts excluded. When the property is sold it comes into the cash account of the Official Assignee, and then it falls under s. 52, and the proceeds are " property " which is divisible among the creditors s. 49, sub-s. 5, then applies, which is not limited to antecedent debts; it includes all debts in the insolvency. The form of the decree seems to assume that the obligation of the sons to discharge the fathers debt is a charge upon the sons share of the property. There is no justification whatever for that. The latest authorities are set out in the last edition of Mullas Hindu Law, at p. 306. It is quite accurate to say that Official Assignee of Madras v. Ramachandra Ayyar (( 1922) I. L. R. 46 M. 54.) and Sellamuthu Servai, In re (( 1923) I. L. R. 47 M. 87.) decide that where a father has a right to dispose of his sons interest for the payment of his own debts, that right vests in the Official Receiver. That is also the decision in Sita Ram v. Bent Prasad. (( 1924) I. L. R. 47 A. 263.) The Insolvency Act ceases to have any effect as soon as the partition takes place; the Official Assignee would have no right of action against the sons after partition. [Reference was made to Bawan Das v. O. M. Chiene (( 1921) I. L. R. 44 A. 316.); Trevelyans Hindu Law, p. 339; Mullas Hindu Law, 8th ed., p. 309; Official Assignee of Madras v. Ramachandra Ayyar (1); Sellamuthu Servai, In re (2); Subramania Ayyar v. Sabapathy Aiyar (( 1927) I. L. R. 51 M. 361.); Balusami Ayyar, In re (( 1928) I. L. R. 51 M. 417.); Sheo Saran Chaudhri v. Ram Lagan Das (( 1921) I. L. R. 44 A. 64.); Sita Ram v. Beni Prasad (( 1924) I. L. R. 47 A. 263.); and Kishan Sarup v. Brijraj Singh. (( 1929) I. L. R. 51 A. 932.)] Parikh followed. (( 1929) I. L. R. 51 A. 932.)] Parikh followed. The real question is whether the doctrine of pious obligation which has been applied in these special circumstances should be taken as the real proposition and extended to such an extent that on partition of the ancestral property the sons must, under the rule of this pious obligation, pay the antecedent debts of the father. Assuming that the father has the right to alienate the joint family property to pay his own debts, that right ceased to exist in him and did not vest in the Official Assignee on making an order of adjudication against the father, which caused disruption of the joint family and effected separation in interest amongst the coparceners. Separation takes place on the vesting of the insolvents share in the Official Assignee. [Reference was made to Sahu Ram Chandra v. Bhup Singh (( 1917) L. R. 44 I. A. 126.); Venkureddi v. Venku Reddi (( 1926) I. L. R. 50 M. 535.lain); Ram Satan Das v. Bhagwan Singh (( 1929) I. L. R. 52 A, 71.); Madho Parshad v. Mehrban Singh (( 1890) L. R. 17 I. A. 194.); and to s. 229 of the 8th ed. of Mullas Hindu Law.] Dunne K.C. and Andrewes Uthwatt for the respondents the Bank of Upper India, Ld. This point of the alleged disruption of the family on the insolvency was not taken in the Courts below. The pleadings are based on their continuing as a joint family, and it is important that the Board should have the opinion of the Courts below on a point such as this. It was argued that the insolvency of one member of a co-parcenery constitutes in itself a partition of interest of the members in the joint family property, and that from that moment they continue as tenants in common. There is no authority for that proposition, but it is said that as a matter of reason the insolvency has resulted in the dividing of the family estate. Under Hindu law, the Mitakshara, the joint family remains a joint family until there has been some breaking of status. In all the cases it is held that there must be proved some act on the part of one of the members showing an intention to break up that joint status. Under Hindu law, the Mitakshara, the joint family remains a joint family until there has been some breaking of status. In all the cases it is held that there must be proved some act on the part of one of the members showing an intention to break up that joint status. An act of insolvency is no evidence of intention on the part of one of these members of breaking up the family status. The father in the present case remained with all the rights and all the limits on those rights as a member of the joint family at the moment and after the moment of the adjudication. All that has happened is that there are vested in the Official Assignee such rights in the property as the father possessed. All that the Official Assignee can do is to exercise such rights as vested in him by the insolvency, but entirely apart from any question of partition. The power of the insolvent to dispose of his sons shares in joint family property for the purpose of repaying antecedent debts which are neither illegal nor immoral is a power which vests in the Official Assignee under the Presidency Towns Insolvency Act, 1909. The appellants share in such property as remains unsold can be disposed of for meeting the Banks mortgage debt and other debts which are not illegal or immoral. [Reference was made to s. 52, sub-s. 2 (b), and ss. 7 and 49 of the Presidency Towns Insolvency Act, 1909; and to Venkureddi v. Venku Reddi (( 1926) I. L. R. 50 M. 535.); Anand Prakash v. Narain Das Dori Led (( 1930) I. L. R. 53 A. 239.); and Bankey Lal v. Durga Prasad. (( 1931) 1. L. R. 53 A. 868.)] Dunne K.C. and Wallach for the 4th respondent in appeal No. 23 of 1932. Hyam and A. T. Macmillan for respondent No. 8 in appeal No. 23 of 1932. Chinna Durai and Lady Chatterjee for the legal representative of the 12th respondent in appeal No. 23 of 1932. Upjohn K.C. replied. July 13. The judgment of their Lordships was delivered by LORD THANKERTON. Hyam and A. T. Macmillan for respondent No. 8 in appeal No. 23 of 1932. Chinna Durai and Lady Chatterjee for the legal representative of the 12th respondent in appeal No. 23 of 1932. Upjohn K.C. replied. July 13. The judgment of their Lordships was delivered by LORD THANKERTON. These are consolidated appeals from two decrees of the High Court of Judicature at Lahore, dated January 20, 1926, which, subject to some modification, affirmed two decrees of the District Judge of Delhi, dated April 13, 1916, dismissing two suits instituted by the present appellants, who are the two sons of Lala Sri Kishen Das, originally respondent No. 1 to these appeals. Sri Kishen Das, along with the appellants, formed a joint Hindu family, of which he was the managing member. The joint family owned considerable immovable property, and a business, the headquarters of which were at Delhi. On April 5, 1913, Sri Kishen Das mortgaged to respondents No. 3, the Bank of Upper India, Ld., a large part of the immovable property owned by the joint family, in security of his indebtedness to the Bank. On September 26, 1913, Sri Kishen Das was adjudicated insolvent by the High Court of Bombay under the Presidency Towns Insolvency Act, 1909. On April 14, 1914, the Bank instituted a suit in the Court of the District Judge at Delhi for recovery of their mortgage debt, amounting to Rs.4,64,021-15-8, by sale of the mortgaged properties, against Sri Kishen Das, the present appellants, who were then minors, and the Official Assignee, Bombay. The present appellants contested the suit. The Official Assignee also contested the suit, but later he admitted the Banks claim. On October 2, 1914, the present appellants, then minors, through a next friend instituted the first suit now under appeal at Delhi against their father, Sri Kishen Das, the Bank, and the Official Assignee, asking for a declaration that one-half of the mortgaged properties was owned by them and that, to the extent of their share, the mortgage was not binding on them, and also for an injunction to restrain the defendants from selling or alienating their one-half share in the said properties. On January 11, 1915, the present appellants instituted at Delhi the second suit now under appeal against Sri Kishen Das, the Official Assignee, the Bank, and sundry purchasers of immovable properties sold by the Official Assignee, claiming partition and a half share of the immovable properties belonging to the joint family, two lists of which were filed by the plaintiffs, the first list setting out the mortgaged properties in dispute, and the second detailing the properties free from the mortgage. The three suits were tried together by the District Judge, and on April 13, 1916, he delivered judgment in the partition suit and dismissed the suit; for the reasons set forth in that judgment he also dismissed the declaratory suit. On April 27, 1916, he gave a decree in the Banks suit for Rs.4,64,021-15-8 with interest, but made no order for sale, in respect that the larger portion of the mortgaged properties had already been sold by the Official Assignee; this decree has now become final, as an appeal therefrom was dismissed in default. The present appellants appealed from the decrees of the District Judge in the declaratory suit and the partition suit to the Chief Court of the Punjab (now the High Court of Judicature at Lahore), and on January 20, 1926, the High Court delivered a judgment disposing of both appeals. In the declaratory suit a decree was made affirming the dismissal of the suit by the District Judge. In the partition suit it was ordered by decree of the same date that the decree of the District Judge, Delhi, dated April 13, 1916, dismissing the plaintiffs suit be varied " to the extent of giving the plaintiff-appellants a preliminary decree declaring their share in the unsold properties, as detailed below,” (here follow particulars of nine properties) " to be one-half, and directing that division shall only be made after provision for the satisfaction of the remainder of the debt due to the Bank and of such other antecedent debts of Rai Bahadur Sri Kishen Das as the plaintiffs fail to show are immoral or illegal." There was also a variation as to costs, which is not now material. The present appeals are from these two decrees of the High Court, but the decision of the declaratory suit will follow the decision of the two questions raised in the appeal in the partition suit. The present appeals are from these two decrees of the High Court, but the decision of the declaratory suit will follow the decision of the two questions raised in the appeal in the partition suit. In opening the appeals on behalf of the appellants Mr. Upjohn made clear that no question was raised by them as to the joint family properties so far as they were included in the mortgage to the Bank, whether these properties had already been sold or remained to be sold, and that the appeals related only to the joint family properties which were not included in the mortgage. As to these properties, exception was taken to the decree of the High Court in the partition suit in two respects—namely, (a) because it confined the declaration in the appellants favour to these properties so far as unsold, and did not include those which had already been sold, and (b) in regard to the direction as to provision for the remainder of the antecedent debts. Certain of the respondents to these appeals were only interested in the matter as purchasers of some of the properties subject to the Banks mortgage, and, on the second day of the hearing before their Lordships, Mr. Upjohn, on behalf of the appellants, agreed that they should be dismissed from the appeals, as he was no longer challenging these sales. These respondents were respondents Nos. 4, 5, 7 and 8 in appeal No. 23 of 1932 in the partition suit. Their Lordships held that respondents Nos. 4 and 8, who had appeared on the appeal, were each entitled to their costs from the appellants. Another preliminary matter relates to original defendant No. 12 in the partition suit, Ghulam Mohi-ud-Din, who was a purchaser of one of the properties, and who had died more than six months before an application was made on October 4, 1920, by the plaintiffs for substitution of his legal representatives. In fact he had died on March 20, 1918, and, in their judgment of January 20, 1926, the High Court declined to extend the time, and held that the appeal had abated, and rejected the application. The legal representatives of Ghulam Mohi-ud-Din, respondent No. 12 in appeal No. 23 of 1932, are called along with Sheo Baran Singh, who has judicially established his right of pre-emption of the property purchased by Mohi-ud-Din, and who appeared in this appeal. The legal representatives of Ghulam Mohi-ud-Din, respondent No. 12 in appeal No. 23 of 1932, are called along with Sheo Baran Singh, who has judicially established his right of pre-emption of the property purchased by Mohi-ud-Din, and who appeared in this appeal. Mr. Upjohn did not seek to press the appeal as regards this property, and the appeal falls to be dismissed as against respondent No. 12, with costs to the respondent Sheo Baran Singh. Turning to the first contention of the appellants, it is clear that Sri Kishen Das, as father of the two appellants, had the power, so long as it remained undivided, to sell or mortgage the joint family property, including the interest of the appellants, for payment of his own debts, provided such debts were antecedent and were not incurred for immoral or illegal purposes. It is also clear that his interest in the joint family property vested in the Official Assignee, who would be entitled to obtain partition. But the question in these appeals relates to the power of the Official Assignee to deal with the interest of the appellants. Under a previous decision of this Board, in a pre-emption suit instituted by the present appellants, it has been held that the adjudication order did not vest in the Official Assignee the appellants interest in the family property Sat Narain v. Behari Lal (( 1924) L. R. 52 I. A. 22.) But the Official Assignee claims the right to exercise the insolvents power, as father, to sell the joint family property for payment of the insolvents antecedent debts, so far as not incurred for immoral or illegal purposes, by virtue of the provisions of s. 52, sub-s. 2 (b), of the Presidency Towns Insolvency Act. Sect. 52 provides as follows— "52.—(1.) The property of the insolvent divisible amongst his creditors, and in this Act referred to as the property of the insolvent, shall not comprise the following particulars, namely— "(a) property held by the insolvent on trust for any other person; "(b) the tools (if any) of his trade and the necessary wearing apparel, bedding, cooking vessels, and furniture of himself, his wife and children, to a value inclusive of tools and apparel and other necessaries as aforesaid, not exceeding three hundred rupees in the whole. "(2.) Subject as aforesaid, the property of the insolvent shall comprise the following particulars, namely— “(a) all such property as may belong to or be vested in the insolvent at the commencement of the insolvency or may be acquired by or devolve on him before his discharge; "(b) 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 commencement of his insolvency or before his discharge; and "(c) all goods being at the commencement of the insolvency in the possession, order or disposition of the insolvent, in his trade or business by the consent and permission of the true owner under such circumstances that he is the reputed owner thereof "Provided that thing in action other than debts due or growing due to the insolvent in the course of his trade or business shall not be deemed goods within the meaning of clause (c) "Provided also that the true owner of any goods which have become divisible among the creditors of the insolvent under the provisions of clause (c) may prove for the value of such goods. Their Lordships agree with the decision of the High Court that the claim of the Official Assignee is well founded, and that, under s. 52, sub-s. 2 (6), the capacity to exercise the insolvents power to sell the joint family properties for his antecedent debts, these not having been incurred for immoral or illegal purposes, vested in the Official Assignee. The decision of the High Court was based on two decisions of the Madras High Court, and two decisions of the High Court of Allahabad, to which it is unnecessary to refer further Official Assignee of Madras v. Ramachandra Ayyar (( 1922) I. L. R. 46 M. 54.); Sellamuthu Servai, In re (( 1923) I. L. R. 47 M. 87.); Bawan Das v. O. M. Chiene (( 1921) I. L. R. 44 A. 316.); Sita Ram v. Bent Prasad (( 1924) I. L. R. 47 A. 263.); cf. also Balusami Ayyar, In re. also Balusami Ayyar, In re. (( 1928) I. L. R. 51 M. 417.) It was contended for the appellants that the limited class of creditors, who would benefit by such a sale, was not among those classes whose debts are expressly given a priority by s. 49 of the Act, and that to distribute the proceeds of sale among such a limited class would be in contravention of sub-s. 5 of s. 49, which provides that " subject to the provisions of this Act, all debts proved in insolvency shall be paid rateably according to the amounts of such debts respectively and without any preference." But if, as their Lordships hold, s. 52, sub-s. 2 (b), entitles the Official Assignee to exercise the power in question, it is clear that such power must be exercised subject to its limitations, and the provisions of s. 49, sub-s. 5, do not apply. Equally, the provisions of s. 17 are in no way inconsistent with the exercise of the power of sale subject to its limitations. The sales by the Official Assignee in the present case were completed before the partition suit was instituted. Accordingly their Lordships are of opinion that the appeal fails in regard to the joint family properties which are not included in the Banks mortgage and which have been sold by the Official Assignee. As regards the unsold properties, not included in the Banks mortgage, it is not disputed that the appellants are entitled to the preliminary decree declaring their share, on partition, to be one-half; but the appellants maintain that the High Court erred in directing that division should only be made after provision for satisfaction of the remainder of the insolvents antecedent debts, in so far as the appellants fail to show that they are immoral or illegal. In their Lordships opinion, the High Court have rightly made the direction. The fathers power of sale for his debts exists only so long as the joint family property is undivided, and the capacity of the Official Assignee must be similarly limited. In their Lordships opinion, this was rightly held in Balusami Ayyar, In re (( 1928) I. L. R. 51 M. 417.), and the decision in Sita Ram v. Bent Prasad (( 1924) I. L. R. 47 A. 263.) to the contrary effect was incorrect. In their Lordships opinion, this was rightly held in Balusami Ayyar, In re (( 1928) I. L. R. 51 M. 417.), and the decision in Sita Ram v. Bent Prasad (( 1924) I. L. R. 47 A. 263.) to the contrary effect was incorrect. When the family estate is divided, it is necessary to take account of both the assets and the debts for which the undivided estate is liable. The appellants maintained that the pious obligation of the sons was an obligation not to object to the alienation of the joint estate by the father for his antecedent debts, unless they were immoral or illegal; but that these debts were not a liability of the joint estate, for which provision was required to be made before partition. This argument was sought to be supported by the judgment of this Board delivered by Lord Dunedin in Brij Narain v. Mangla Prasad (( 1923) L. R. 51 I. A. 129.), which was a case dealing with the rights of the fathers mortgagee or creditor against the joint estate in the hands of the sons. That decision was important in that it corrected certain obiter dicta in the earlier decision of this Board in Sahu Ram Chandra v. Bhup Singh (( 1917) L. R. 44 I. A. 126.), and made clear (inter alia) that the doctrine was not based on any necessity for the protection of third parties, but was based on the pious obligation of the sons to see their fathers debts paid, and also that it was immaterial to the liability of the family estate whether the father was alive or dead. There can be no doubt that it is a liability of the joint estate, and, in the opinion of their Lordships, it follows that it is right to make provision for discharge of this liability on partition of the joint estate. It was so decided in Bawan Das v. O. M. Chiene (( 1921) I. L. R. 44 A. 316.); reference may also be made to Venkureddi v. Venku Reddi. (( 1926) I. L. R. 50 M. 535, 539.) Accordingly, the appellants second argument must be rejected. It was so decided in Bawan Das v. O. M. Chiene (( 1921) I. L. R. 44 A. 316.); reference may also be made to Venkureddi v. Venku Reddi. (( 1926) I. L. R. 50 M. 535, 539.) Accordingly, the appellants second argument must be rejected. There seems to be a reasonable doubt as to the correctness of the list of properties in the decree of the High Court, and parties were agreed that the matter would be safeguarded by varying the decree in so far as it gives the appellants a preliminary decree so as to read "a preliminary decree declaring their share in the properties not subject to the Banks mortgage and remaining unsold to be one-half, and directing that division shall only be made after provision for the satisfaction of the remainder of the debt due to the Bank and of such other antecedent debts of Rai Bahadur Sri Kishen Das as the plaintiffs fail to show are immoral or illegal." Their Lordships will accordingly humbly advise His Majesty that the appeals should be dismissed, and that the decrees of the High Court, subject to the variation above stated, should be affirmed. The respondents the Bank of Upper India will be paid their costs in these appeals by the appellants. The position of the respondents 4, 5, 7, 8 and 12 has been referred to. As regards their costs Nos. 5 and 7 did not appear, so no question of their costs arises; the appellants must pay the costs of Nos. 4, 8 and of Sheo Baran Singh as representing No. 12, with separate sets of costs to each.