Judgment.- This is a revision petition under section 75 of the Provincial Insolvency Act, by one Venkatarama Naicker, hereinafter called the opposing creditor, against the judgment and decree of the District Judge of Tirunelveli, in C.M.A. No.5 of 1945, dated 12th March, 1946, allowing the respondents hereinafter called the proving creditors, to prove certain debts of theirs holding them to be recoverable from the estate of the insolvent, Narayanappa Naicker, to the extent held to be true and binding. The memorandum of cross-objections is against the debts not allowed to be proved as they were held to be not true and binding on the insolvent. The facts are briefly these: Narayanappa Naicker, the insolvent, was adjudged insolvent in I.P.No.40 of 1923 on the file of the District Court, Tirunelveli. He was the father of one Venkatasami Naicker who predeceased him and was said to have been the manager of the joint family. Venkatasami Naicker had also several children who were minors at the time of the I.P. The I.P. had been filed by the opposing creditors and others for adjudicating Venkatasami Naicker, Narayanappa Naicker and Venkatasami’s minor children, all insolvents on the ground that they had executed a mortgage deed, Exhibit A, in 1923, in favour of the proving creditors, in fraudulent preference under section 54 of the Provincial Insolvency Act. and also as void, regarding part of the consideration recited therein, under section 53 of the Provincial Insolvency Act. The opposing creditor had in his I.P., relied on certain debts due to him contracted by Narayanappa, Venkatasami and Venkatasami’s sons, for running a trade in cotton and a ginning factory. There were two aspects of this trade, one being run by Venkatasami Naicker, Narayanappa Naicker and their family members alone, and the other by the family members in partnership with one Appadurai Ayyappa Naicker. Venkatasami died during the pendency of the I.P. By his order dated 10th December, 1923, the District Judge, Tirunelveli, adjudicated Narayanappa and Venkatasami’s minor sons as insolvents. Narayanappa and the minors filed an appeal to this Court. On 18th November, 1927, Phillips and Madhavan Nair, JJ., delivered their judgment (Exhibit SS) in the appeal. As the wording of the judgment is somewhat important for other purposes, and as the judgment itself is short, it is. Narayanappa and the minors filed an appeal to this Court. On 18th November, 1927, Phillips and Madhavan Nair, JJ., delivered their judgment (Exhibit SS) in the appeal. As the wording of the judgment is somewhat important for other purposes, and as the judgment itself is short, it is. extracted below: “The only question for decision is whether the trade carried on by the deceased second respondent was a family trade or his own private trade. It was carried on under the vilasam of A.N.V. Venkatasami Naick, which is the name of the second respondent. The clerk who was employed in the trade says that it was a family trade and that the fust appellant used to assist in the business as well as looking after the family lands. It is also alleged by P.W. 4, one of the creditors, that the trade was a family trade and the fact that it is in the deceased’s name is accounted for by the fact that he was the managing member of the family. It is alleged that the patta was transferred in his name by his father, and, although the father denies this, he has not produced the patta in his own name. Finally, when the deceased incurred debts in his trade all the family property as well as the family house were mortgaged to borrow money and the executants of the mortgage were the 1st appellant, the deceased and his minor sons. The District Judge has believed the evidence of the witnesses and we see no reason to differ from his conclusions. He has however made a mistake in adjudicating the minor respondents 3 to 7 insolvent and in that respect his order must be modified. The appeals are dismissed with costs,” It will be noticed that the learned Judges held in that order that the cotton trade and the ginning factory were carried on as a family trade by Venkatasami, Narayanappa and other members of the family, and that Narayanappa, the first appellant, used to assist in the business as well as look after the family lands, and that the debts of the creditors who filed the I.P. were incurred for such family trade, though they stood in the name of Venkatasami, as he was the managing member of the family, all the family properties and the family house being mortgaged subsequently by all the family members to borrow money. Of course, the adjudication of the minor sons of Venkatasami was set aside as they could not be held to be personally liable for the debts, but only liable to pay them out of the joint family debts, for which they were, of course, not personally liable. After the adjudication by the District Judge, the Official Receiver filed O.P. No.30 of 1925, in the Sub-Court, Tuticorin, for setting aside the mortgage deed, Exhibit A, under sections 53 and 54 of the Provincial Insolvency Act. The proving creditors filed O.S.No.28 of 1925 on the file of the Sub-Court, Tuticorin, for recovering the first instalment of Rs.2,500 due under the mortgage deed, Exhibit A, which was for Rs.46,500 and consisted of seven items, including the debts now allowed by the learned District Judge to be proved. The Subordinate Judge decreed O.S.No.28 of 1925 and dismissed O.P.No.30 of 1925. The Official Receiver did not prefer any appeal against the decree in O.S.No.28 of 1925, but preferred an appeal against the order in O.P.No.30 of 1925, namely, C.M.A. No.4 of 1927, on the file of the District Court, Tirunelveli. The District Judge, Tirunelveli, allowed C.M.A.No.4 of 1927, on 29th September, 1928, and set aside the mortgage deed, Exhibit A, under sections 53 and 54 of the Provincial Insolvency Act. The gist of his finding lies in the following sentence: “I declare the mortgage to be void as against the Official Receiver both because it is not fully supported by consideration, and also because it is, and was, intended to be a fraudulent preference and made with a view of removing the insolvent’s properties from the powers of his creditors.” The proving creditors, who were thus affected by the cancellation of the mortgage deed, took the matter in appeal to this Court. This Court, by its judgment, dated 12th December, 1932, confirmed the order of the District Judge setting aside the mortgage, and dismissed the appeal. As the mortgage was thus set aside, the proving creditors the mortgagees filed I.A.No.45 of 1941 for proving the very debts included in the mortgage deed after deducting the Rs.2,500 for which they had got a decree in O.S.No.28 of 1925, and adding a sum of Rs.500 the unrealised balance, i.e., in all for Rs.44,500. As the mortgage was thus set aside, the proving creditors the mortgagees filed I.A.No.45 of 1941 for proving the very debts included in the mortgage deed after deducting the Rs.2,500 for which they had got a decree in O.S.No.28 of 1925, and adding a sum of Rs.500 the unrealised balance, i.e., in all for Rs.44,500. The Official Receiver found that out of the 7 items comprised in the mortgage deed, Exhibit A, and sought to be proved in the insolvency of Narayanappa, items 1, 2, 3, 4 and 7 were true, but that items 5 and 6 were not proved to be true or binding. He also found the additional Rs.500 claimed by the proving creditors to be true. But he thought that the proving creditors could not claim anything in the insolvency proceedings of Narayanappa because the mortgage deed, Exhibit A, had been declared by the District Judge, Tirunelveli, to be void against the Official Receiver, and this order had been confirmed by the High Court on appeal, and further, that the proving creditors should exhaust all their remedies against the assets of Venkatasami Naicker and his sons before proceeding against the insolvent’s estate. His order, dated 14th December, 1941, to that effect, was carried in appeal to the Subordinate Judge, Tuticorin, by means of I.A.No.45 of 1941. On 15th December, 1943. the learned Subordinate Judge pronounced an order holding that items 1, 2, 4 and 7, recited in Exhibit A, were true, as also the additional Rs.500, and that all these were recoverable in the insolvency, and that items 5 and 6 were not true. In respect of item 3, he remanded the matter to the Official Receiver for a fresh finding after taking all the facts into consideration. The Official Receiver gave a finding that only Rs.8,186-5-10 out of the Rs.10,000 and odd, covered by the third item, was true. The first item covered a liability of Rs.8,500, item 2 covered a liability of Rs.11,500, item 3 to the extent found liable, covered a liability of Rs.8,186-8-10, item 4 covered a liability of Rs.10,000 and item 7 a liability of Rs.5,000. Items 5 and 6, the disallowed items, covered liabilities of Rs.3,300 and Rs.2,700 respectively. The first item covered a liability of Rs.8,500, item 2 covered a liability of Rs.11,500, item 3 to the extent found liable, covered a liability of Rs.8,186-8-10, item 4 covered a liability of Rs.10,000 and item 7 a liability of Rs.5,000. Items 5 and 6, the disallowed items, covered liabilities of Rs.3,300 and Rs.2,700 respectively. Eventually, after some amendments of defective decrees, etc., the learned Subordinate Judge allowed proof of items 1 and 2, the portion of item 3 found to be true, item 4, item 7 and the extra Rs.500 claimed by the proving creditors, and disallowed items 5 and 6. The opposing creditor filed C.M.A.No.5 of 1945 before the District Judge of Tirunelveli, against the order of the Subordinate Judge allowing proof of the debts to the extent he did. The proving creditors filed a memorandum of cross-objections regarding the items disallowed. Various points of facts and law were raised by both sides before the learned District Judge, but, after a thorough discussion and an exhaustive judgment dealing with all the points raised, the learned District Judge dismissed both the appeal and the memorandum of cross-objections, and directed both the parties to bear their own costs. Hence this revision petition and memorandum of cross-objections. We have perused the entire records, and heard the learned counsel on both sides. It is obvious that the memorandum of cross-objections must be dismissed, as no memorandum of cross-objections will lie in a revision petition, and as Mr. V. Ramasami, for the proving creditors, was unable to show how it will lie. It is accordingly dismissed with costs. Now we come to the revision petition itself. Though there were numerous contentions raised in the revision petition, Mr. T.M. Krishnaswami Iyer, the learned counsel for the opposing creditor, who argued the petition, raised only three contentions before us. The first was that the learned District Judge ought to have held that the mortgage deed, Exhibit A, having been set aside under sections 53 and 54 of the Provincial Insolvency Act, as partially void and in fraudulent preference, the proving creditors could not be allowed to prove in insolvency the debts covered by Exhibit A as unsecured creditors even to the extent allowed by the lower Court. It was urged that the lower Court ought not to have allowed the proving creditors to rely on their fraud in getting Exhibit A, which had also been partly carried out by filing the suit, O.S.No.28 of 1925, and getting a decree therein for the first instalment, and to prove the very debts included in Exhibit A, thus allowing them to continue their fraud and get away with it. We cannot agree. As the learned District Judge has pointed out, after discussing, various rulings, and in particular, the Full Bench ruling in Venkataramayya v. Pullayya1, in order to prevent a person who has been a party to a fraudulent transaction from pleading his own fraud, the intended fraud must have been effected or there must have been a substantial part-performance of the intention to defraud, and a mere fraudulent intention evidenced by the transaction is not sufficient. In other words, if the fraud or the illegal transaction is not carried out, but comes to an end, for whatever reason, and the parties are put back in the same situation as they were in before the illegal transaction was determined upon, the intended fraudulent or illegal transaction will not prevent a party to it from claiming the remedy he will be entitled to. In the present case, it is clear that despite the mortgage, Exhibit A, which was set aside under sections 53 and 54 of the Provincial Insolvency Act, and a suit, O.S.No.28 of 1925, and a decree therein for the first instalment due under the mortgage, there has been no substantial part-performance of the fraudulent intention to prefer some of the creditors to others, under Exhibit A (under section 54 of the Provincial Insolvency Act), and that no harm has been actually done, and that the parties have virtually been put back to their original position by the cancellation of Exhibit A, as by the compromise in the Full Bench case quoted above. We cannot agree with Mr. Krishnaswami Aiyar’s argument that the Full Bench judgment contains contradictory observations, and that in one portion of it the principle laid down above was watered down to the extent of practically dissenting from it. A perusal of the entire judgment with the arguments of Mr. K. Subba Rao (as he then was) and the observations of the learned Judges, have convinced us of this. A perusal of the entire judgment with the arguments of Mr. K. Subba Rao (as he then was) and the observations of the learned Judges, have convinced us of this. Thus, in reply to the observation of Mr. Subba Rao to the effect that the fraud was no doubt ultimately-frustrated but the fraudulent object was in part carried out, namely, the object of securing the property in question to the father himself, the learned Chief Justice, who delivered the judgment of the Full Bench, remarked: “At the most there was a claim to the exclusion of the property in question from the partition, but that claim was not persisted in, and nobody was damaged. So no fraud has been effected”, and King, J., remarked “the fraudulent object was abandoned, and nobody has been damaged”. In this case too, the fraudulent object has been abandoned and nobody has been damaged, and so the ruling of the Full Bench will apply with full force here. Sections 53 and 54 of the Provincial Insolvency Act merely say that the transfer of the property under the deed so set aside is void, and not everything connected with it. The judgment of the District Judge, Tirunelveli, in C.M.A.No.4 of 1927, also only declared the mortgage deed, Exhibit A, to be void against the Official Receiver, as it was not fully supported by consideration and was intended to be a fraudulent preference of some creditors over others, and did not make the debts included in it void. So, that order made only the security offered under Exhibit A void, and did not purport to, and could not, wipe out the debts comprised in that mortgage deed. The dissociation of the debts included in the mortgage deed from the security is a familiar notion in law, from time immemorial, and has been forcibly brought out in the Privy Council decision in The Imperial Bank of India v. The Bengal National Bank in liquidation1. So, even though the mortgage deed, Exhibit A, was cancelled, the debts comprised in it were not cancelled, and the status quo ante, before the mortgage deed was executed, would automatically revive. So, even though the mortgage deed, Exhibit A, was cancelled, the debts comprised in it were not cancelled, and the status quo ante, before the mortgage deed was executed, would automatically revive. Many cases have been relied on by the learned District Judge for his view that though the mortgage deed is annulled under sections 53 and 54 of the Provincial Insolvency Act, the mortgagee thereunder could rely on the debts included in the mortgage deed and prove those debts in insolvency as an unsecured creditor. We agree with this view which is obviously the only sound one. The mortgagee need not, it is obvious, plead any fraud for proving these debts as for proving the mortgage. It is also not as if this view takes away the effect of cancelling the mortgage deed. The mortgagee, who was a secured creditor and could recover his dues in full under the mortgage set aside, is, owing to the cancellation of the mortgage, relegated to the position of a mere unsecured creditor, entitled only to the dividend (a mere fraction) of his dues, like the remaining unsecured creditors. That is a substantial difference, and it cannot be said that the cancellation of the mortgage deed, Exhibit A, by the District Judge and High Court, is rendered illusory by the view taken by the learned District Judge that the ex-mortgagees, the proving creditors, can prove the debts included in the mortgage as unsecured creditors in the insolvency. The next contention of Mr. Krishnaswami Aiyar, pressed before us, was that the whole proceedings before the learned District Judge, till the stage of arguments, had gone on the footing that Narayanappa, the insolvent, was only liable for the debts of the proving creditors as a member of the joint family, liable to pay the joint family debts, and that only at the stage of arguments was it urged that he is liable personally to pay those debts, as a partner in the trade along with his son, Venkatasami, taking an active part in the conduct of the business, and therefore liable personally for the debts incurred along with Venkatasami and that, therefore, the debts allowed to be proved by the lower Court should only be proved and allowed for in a partition suit brought by the proving creditors who have bought the shares of Venkatasami’s minor sons. It was urged further that the High Court’s judgment in Exhibit SS, quoted above, only held the debts incurred by Venkatasami for the cotton and ginning business carried on by him in his own name, and not in partnership, to be debts binding on Narayanappa also personally, and not also the debts incurred in the business conducted in partnership with Appadurai Ayyappa Naicker, and that, in any event, only the debts of the creditors who filed the insolvency petition had been admitted by the opposing creditor to have been contracted by Venkatasami for the cotton and ginning business carried on by the family, either by itself or in partnership with Appadurai Ayyappa Naicker. Mr. Ramaswami Iyer, for the proving creditors, urged that nobody can, under our law, be adjudicated insolvent for a mere liability for joint family debts, and that a man can be adjudicated only for debts for which he is personally liable, relying on the ruling in Kalagara Purnayya v. Cherukuri Basava Kottayya1 and similar rulings. He, therefore, urged that the mere fact that Narayanappa was adjudicated insolvent would prove that he was liable personally to pay the debts covered by the insolvency petition and all other debts contracted for the cotton and ginning business run by the family, either by itself or in partnership with Appadurai Ayyappa Naicker. Mr. Krishnaswami Iyer retorted that, even if the debts of the creditors in the insolvency petition have been held to be payable personally by Narayanappa, it is not proved that the debts of these proving creditors were contracted for the cotton and ginning business run by the family, by itself or in partnership with Appadurai Ayyappa Naicker, and that, without some formal proof to that effect, it would be preposterous to allow these debts to be proved by the proving creditors in the insolvency of Narayanappa Naicker, relying on mere arguments and inferences. We agree. It is clear to us from the records, and it is indeed mentioned by the learned District Judge also in his judgment that there was no formal proof of Narayanappa’s personal liability for the debts contracted from the proving creditors and allowed to be proved in this insolvency, in the proofs submitted by these creditors. Nor was it made clear in the Sub-Court and the District Court till the stage of arguments. Nor was it made clear in the Sub-Court and the District Court till the stage of arguments. Narayanappa’s personal liability was evidently taken for granted by the proving creditors because of his joining in the mortgage deed, Exhibit A. But, the moment Exhibit A was cancelled, that basis for his personal liability disappeared, and his personal liability had to be formally proved by some evidence let in for that purpose. Of course, we agree with Mr. Ramaswami Iyer that in view of the judgment of this Court in Exhibit SS, and of the Subordinate Judge and District Judge, and for the reasons given in all the three judgments all debts contracted by Venkatasami Naicker, the managing member of the family business, whether carried on by the family itself or in partnership with Appadurai Ayyappa Naicker, would be debts for which Narayanappa, who had interfered in the partnership and assisted in the management of the business, would be personally liable. We cannot go behind this. The law undoubtedly is that a person liable for debts merely on the ground that he is a member of a joint family and that the debts are payable by the joint family cannot be adjudicated insolvent for those debts, and those debts cannot be proved in his insolvency and will have only to be allowed for preliminarily in a partition suit brought by the purchasers of the other share or shares (as here, by the proving creditors who have bought the minors’ shares): see the ruling of the Privy Council in Sat Narain v. Sri Kishendas2 and Yagnavalkya’s specific directions in his Smriti and directions to that effect in the Mitakshara. But there are also undoubtedly circumstances which will make such a person personally liable for the debt, such as his being a member of a trading firm and holding himself out as a partner, and the debts being contracted for that trade. There is no need to wait then for a partition suit for allowing such debts which can be proved in the insolvency of the person who had made himself personally liable for the debts in addition to being liable for them from out of his share in the joint family properties: see the ruling in Kalagara Purnayya v. Cherukuri Basava Kottayya1. We are, therefore, of opinion that the matter must be remanded to the Subordinate Judge, Tuticorin, for proof by the proving creditors that the debts held to be true, by the Subordinate Judge and District Judge, were incurred for the cotton and ginning trade carried on by Venkatasami and the family members, either solely or in partnership with Appadurai Ayyappa Naicker. Once it is so proved, the proving creditors will be allowed to prove the debts of items 1, 2, 3 (to the extent allowed already), 4 and 7, and the Rs.500, without further ado. The findings of fact of both the Courts below, regarding the truth and validity of the above items and the non-proof of the truth and validity of items 5 and 6, matters within their jurisdiction and competence, cannot be interfered with or disturbed by us, in revision, and we see also no reason to do so. Lastly, Mr. T.M. Krishnaswami Aiyar urged that the lower Court went wrong in holding that the debts allowed to be proved were not liable to be scaled down under the Madras Agriculturists Relief Act. He contended that under section 21 of the Madras Agriculturists Relief Act, the debts ought to have been scaled down as they were debts of an insolvent whose insolvency proceedings were still pending on 1st October, 1937, 22nd March, 1938 and the date of the application, the three crucial dates, and a dividend has not been declared out of his assets prior to the coming into force of the Act on 22nd March, 1938, and he would have been an “agriculturist,” within the meaning of the Act, but for his adjudication in insolvency, and that his death before 1st October, 1937 or the sale of all his properties before that day by the Official Receiver, in insolvency, would be totally irrelevant and immaterial. We cannot agree. Section 21 of the Madras Agriculturists Relief Act runs as follows: “Nothing contained in this Act shall apply to the debts payable by any person who has been adjudicated an insolvent, if prior to the coming into force of this Act, a dividend has been declared out of his assets. We cannot agree. Section 21 of the Madras Agriculturists Relief Act runs as follows: “Nothing contained in this Act shall apply to the debts payable by any person who has been adjudicated an insolvent, if prior to the coming into force of this Act, a dividend has been declared out of his assets. if a dividend has not been so declared this Act shall apply to the debts payable by such person if he would have been an agriculturist, within the meaning of this Act but for his adjudication in insolvency.” In our opinion, it is essential for the application of that section that the insolvent should be an “agriculturist” on 1st October, 1937, 22nd March, 1938, and the date of the application for scaling down, the three crucial dates, but for the adjudication in insolvency. In other words, he should have all the qualifications prescribed for an “agriculturist” entitled to scaling down by the Madras Agriculturists Relief Act on the three crucial dates, the only concession given by section 21 being the ignoring of the fact of adjudication and the consequent vesting of the properties in the Official Receiver. If a man has no lands whatever on 1st October 1937, 22nd March 1938, or the date of the application and could not, therefore, have been an “agriculturist” entitled to scaling down even if there were no adjudication, there will be no question of his being entitled to any scaling down. No Court can speculate on what would have happened but for the insolvency, and whether the insolvent might have had some lands left after discharging his debts privately or by evading his creditors and avoiding sales. In the present case, it was proved that all the lands of the insolvent were sold by the Official Receiver in 1933 itself, years before the Madras Agriculturists Relief Act was on the anvil. There was no proof of the allegation that he had some other lands left. Indeed, we agree with the learned District Judge that nothing more was left after the sale in 1933. So, we are of opinion that Narayanappa, even if he had not been adjudicated in insolvency, would not have been an “agriculturist” entitled to scaling down, on 1st October, 1937 or on 22nd March, 1938 and on the date of the application, the three crucial dates. So, we are of opinion that Narayanappa, even if he had not been adjudicated in insolvency, would not have been an “agriculturist” entitled to scaling down, on 1st October, 1937 or on 22nd March, 1938 and on the date of the application, the three crucial dates. In our opinion, the question of the applicability of section 21 can only be raked up at the time of the application for scaling down. If on that date, but for the adjudication, the insolvent would have had lands, and would be an “agriculturist”, section 21 would apply. If on that date he had no lands at all, for whatever reason, there will be no question of applying section 21. It is something, like a provision removing the disqualification of imprisonment for a political crime regarding employment in Government service. It is only the disqualification which is removed. The other qualifications which are necessary for Government service, like being a graduate, eligible S.S.L.C, etc., will still remain. No appointing authority can be allowed to speculate as to whether the person in question would have qualified himself educationally and got the requisite qualification but for the imprisonment intervening. All such speculations would be out of place in the matter of fact world of law. In this view there is no need to consider whether the death of Narayanappa before 1st October, 1937, would also have deprived him or his legal representatives or the Official Receiver of the right to have the debts scaled down. We hold that the learned District Judge was right in holding that the debts allowed by him to be proved by the proving creditors were not liable to be scaled down. No other point was argued before us. In the result, the petition (I.A.No.45 of 1941) is sent down to the Subordinate Judge of Tuticorin for proof by the proving creditors that the debts covered by items 1, 2, 3 (to the extent allowed already) 4 and 7, and the Rs.500 allowed to be proved by the proving creditors, were debts contracted for the cotton and ginning business of Venkatasami Naicker and his family, either run solely by the family members or in partnership with Appadurai Ayyappa Naicker. On such proof, the above debts will all be held to be proved in the insolvency of Narayanappa Naicker, who would be held personally liable for them. On such proof, the above debts will all be held to be proved in the insolvency of Narayanappa Naicker, who would be held personally liable for them. All the parties will be free to adduce all relevant oral and documentary evidence in connection with this. Costs of this petition will be suitably provided for by the Subordinate Judge when disposing of the petition afresh. K.S. ----- Petition remanded.