MULRAJ JETHABHAI v. SHIVKUMAR BHAGVANDAS — 1975 DIGILAW 100 (GUJ)

B. K. MEHTA, J. ( 1 ) ONE Narandas Gordhandas Khajadia of Bombay filed a suit against Jethabhai Naranbhai Rajada (hereinafter referred to as the insolvent for the purposes of this judgment) Mulraj Jethabhai who happened to be the son of the insolvent and two other persons namely Ramakant Dwarkadas and Jaisinh Narandas for recovery of a sum of Rs. 50 0 in the High Court of Bombay by his suit No. 328 of 1356 on the original side of the said High Court. A decree was passed by the High Court of Bombay on 27 January 1960 against the insolvent alone on the admission made by the insolvent that he was indebted to the said Narandas Gordhandas Khajadia in a sum of Rs. 50 0 The other defendants of the said suit namely Mulraj Jethabhai Ramakant Dwarkadas and Jaisinh Narandas were absolved of the liability. The aforesaid decree-holder Narandas Gordhandas Khajadia therefore took out a notice on 6th May 1960 in the High Court of Bombay in its insolvency jurisdiction being Notice No. N. 136 of 1950 calling upon the insolvent Jethabhai Narandas Rajada to pay the said sum of Rs. 50 0 within thirty five days after the service of the notice failing which he was informed that he would have deemed to have committed an act of insolvency on which insolvency proceedings would be initiated. As the insolvent Jethabhai Narandas Rajada failed to pay the said amount within the time stipulated in the aforesaid notice the decree-holder Narandas Gordhandas Khajadia applied for adjudicating Jethabhai Narandas Rajada as insolvent by his Petition No. 66 of 1960 in the High Court of Bombay on the ground that he has failed to comply with the requisition made in the aforesaid insolvency notice No. N. 136 of 1960. This insolvency petition was filed on 21 June 1960 The High Court of Bombay by its order of 6th July 1960 adjudicated Jethabhai Naranji Rajada as insolvent and also ordered that all the estate and effects of the said insolvent should vest in the Official Assignee of Bombay. Accordingly the suit house along with other proper. ties of the insolvent vested in the Official Assignee. At appears that on 16 June 1964 the insolvent died. Accordingly the suit house along with other proper. ties of the insolvent vested in the Official Assignee. At appears that on 16 June 1964 the insolvent died. It appears further that the Official Assignee of Bombay put the suit property along with another property which was a residential house adjoining the suit property to sale by public auction which was held on 14th September 1964 through Public Auctioner M/s Gandhi and Company of Bombay. In the course of auction held on the aforesaid date the plaintiff-respondents offered bid for the suit house and the said offer being highest it was accepted by the Official Assignee. On 5th October 1964 he made a report to the High Court of Bombay for confirmation of the sale. By the order of 6th October 1964 the High Court of Bombay confirmed the sale. In pursuance of the said order of confirmation a sale deed was executed by the Official Assignee in favour of the plaintiff-respondents on 21st July 1965 The plaintiff-respondents therefore took out a notice of motion on 16th December 1966 for possession. However on objection being taken by the defendant-appellants that the Official Assignee was not competent to sell the suit property as it did not vest in him and what was sold and conveyed to the plaintiff-respondents was merely the share of the insolvent and his right title and interest in the property the said notice was discharged. The plaintiff-respondents therefore filed a suit in the Court of Civil Judge (S. D.) Jamnagar on 13th February 1967 being Civil Suit No. 7 of 1957 for declaration that he was the owner of the suit property and for possession from the defendant appellants or in the alternative for partition of the said property. ( 2 ) THE suit was resisted by defendants Nos. 1 to 9 who filed their common written statement as defendants Nos. 1 to 4 happen to be the sons defendants Nos. 5 to 8 happen to be the daughters and defendant No. 9 happens to be the widow of the insolvent. They inter alia contended that the plaintiff was not entitled to claim declaration and possession in respect of the entire suit property namely house No. 659 of Khambhalia as it was never sold by public auction. 5 to 8 happen to be the daughters and defendant No. 9 happens to be the widow of the insolvent. They inter alia contended that the plaintiff was not entitled to claim declaration and possession in respect of the entire suit property namely house No. 659 of Khambhalia as it was never sold by public auction. They also contended that the Official Assignee was not empowered to sell even the right title interest and share of the insolvent. They objected to the sufficiency of stamp on the sale deed. They contended that the suit property was ancestral property which has come to the share of the insolvent in the partition with his brothers and whatever improvements made in the said property were accretion and would anure for the benefit of the coparcenary property and therefore the insolvent did not acquire any exclusive right of property which would vest in the Official Assignee. They had also objected to the valuation of the suit property and 3rd contended that the Court-fees paid were insufficient. Defendant No. 10 who was a tenant on the suit property contested the suit by his written statement filed at Ex. 14 and contended that the plaintiff had no right to file suit against him and he was wrongly involved and therefore he should be awarded special costs. He admitted that he was a tenant of the suit property but there was no cause of action against him and no relief for possession should be granted in favour of the plaintiff. ( 3 ) ON the aforesaid pleadings the learned Civil Judge (S. D.) Jamnagar raised necessary issues. He rejected all the contentions of the defendant appellants and held that the suit property had vested in the Official Assinee and that the plaintiff-respondent was a purchaser at a public auction of the entire suit property and he was therefore entitled to possession In view of his findings he passed a decree for declaration and possession. as prayed for. It is this judgment and decree of the Civil Judge (S. D.) Jamnagar which is the subject matter of this first appeal. ( 4 ) AT the time of hearing of this appeal Mr. as prayed for. It is this judgment and decree of the Civil Judge (S. D.) Jamnagar which is the subject matter of this first appeal. ( 4 ) AT the time of hearing of this appeal Mr. J. R. Nanavati the learned advocate appearing on behalf of the defendant- appellants raised the following for contentions:1 The learned Civil Judge was in error in granting declaration and awarding possession in respect of the suit property inasmuch as he has failed to appreciate on the clear documentary evidence which has been put on the record of the trial Court that what was the estate put up for sale what the Court intended to sell and what the purchaser intended to buy and did buy and pay was only the share of the insolvent in the suit property. 2 The learned Civil Judge was clearly in error in holding that on the adjudication of the father of a joint Hindu family as insolvent the fathers power to sell the interest of the sons for satisfaction of his debts vests in the Official Assignee subject to any contentions on behalf of the sons that the debts of the father had been contracted for illegal or immoral purpose inspite of the established fact that the father died on 16th June 19643 The learned Civil Judge also was in error in finding that the super structure of the suit property was constructed by the insolvent from his exclusive funds which finding was not warranted by any reliable and cogent evidence on record. 4 In any case the parties treated the suit property for all intents and purposes as joint family property. 6 In the view which we are taking on the first contention urged by Mr. Nanavati on behalf of the defendant-appellants we do not intend to decide about the remaining two contentions advanced by him for our consideration. We are therefore of the opinion that having regard to the documentary evidence adduced on behalf of the defendant-appellants the conclusion is irresistible that what was put up for sale and what the Court intended to sell and purchaser intended to buy and did buy and pay for was only the share of the insolvent in the suit property. ( 5 ) MR. Shah for the respondent-plaintiffs however contended that under sec. ( 5 ) MR. Shah for the respondent-plaintiffs however contended that under sec. 52 of the Presidency Towns Insolvency Act 1909 all the properties of an insolvent except those mentioned in Clauses (a) and (b) of sub-sec. (1) are divisible amongst the creditors and such properties shall comprise inter alia the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of the property as might have been exercised by the insolvent for his own benefit at the commencement of his insolvency or before his discharge and therefore the power of the father being a Manager of the undivided Hindu family to alienate or transfer the joint family property including the undivided shares of the other coparceners also vests in the official assignee and therefore when the official assignee in this case put up for sale the insolvents right title and interest in the suit property the right of the father to alienate or transfer the undivided shares of the sons for debts was exercised and the sons interests were also conveyed to the respondent defendants. Mr. J. R. Nanavati learned advocate however sought to repel this contention by urging that it is an established fact that the father died on 16th June 1964 in the present case and therefore the official assignee could not have conveyed the undivided interests of the sons after his death as the right of the official assignee was co-extensive with that of the father. His contention in other words was therefore that this right could have been exercised only in the life time of the father and if that had not been done it could not have been exercised after his death since what is vested in the official assignee is merely the power or the capacity of the father and not the property of his sons. Mr. Shall however refuted this contention by urging that under sec. 93 of the Presidency Towns Insolvency Act 1909 the proceedings in the matter of insolvency of a deceased debtor unless otherwise directed by the Court are continued as if he were alive. Mr. Shall however refuted this contention by urging that under sec. 93 of the Presidency Towns Insolvency Act 1909 the proceedings in the matter of insolvency of a deceased debtor unless otherwise directed by the Court are continued as if he were alive. ( 6 ) THE neat question therefore which arises is: what is the effect of the death of an insolvent on the rights and powers of the official assignee in respect of the undivided interests of the coparceners in the properties of the Joint Family of which the deceased insolvent was a member ? ( 7 ) IN SAT NARAIN AND ANOTHER V. SRI KISHAN DAS AND OTHERS A. I. R. 1926 1936 PC 277 the scope of the power of the official assignee under sec. 55 (2) of the Presidency Towns Insolvency Act 1909 has been considered. The contention urged before the Privy Council on behalf of the sons was that the insolvent as the father of the two appellants had the power so long as it remained undivided to sell or mortgage the joint family properties including the interest of the appellants for payment of his debts provided such debts were antecedent and were not incurred for immoral or illegal purpose. Dealing with this contention the Privy Council observed as under: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 A. I. R. 1925 PC 18 ). 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 sec. 52 (2) (b) Presidency Towns Insolvency Act. . . . . . . . . THEIR Lordships agree with the decision of the High Court that the claim of the official Assignee is well founded and that under sec. 52 (2) (b) Presidency Towns Insolvency Act. . . . . . . . . THEIR Lordships agree with the decision of the High Court that the claim of the official Assignee is well founded and that under sec. 52 (2) (b) 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. . . . . . . . . . . . . BUT if as their Lordships hold sec. 52 (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 see. 49 (5) do not apply. Equally the provisions of sec. 17 are in no way in consistent with the exercise of the power of sale subject to its limitations. The sale by the Official Assignee in the present case were completed before the partition suit was instituted. . . . . . . . . . . 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 Re Balusami Ayyar 51 Madras 417 and the decision in SITARAM V. BENI PRASAD 41 ALLAHABAD 263 to the contrary effect was incorrect. IT is a settled position of law therefore that fathers power to alienate undivided interest of his sons is not a property but merely a capacity or a right which is included under sec. 52 (2) (b) as comprising amongst the property of the insolvent. IT is a settled position of law therefore that fathers power to alienate undivided interest of his sons is not a property but merely a capacity or a right which is included under sec. 52 (2) (b) as comprising amongst the property of the insolvent. In SAT NARAIN V. BEHARI LAL AND OTHERS A. I. R. 1925 PC 18 a question arose before the Privy Council whether the right of sons to pre-empt the house belonging to joint family of the insolvent father an the sons ceased to have effect on the father having been adjudged insolvent. The trial Court granted a decree for pre-emption. A Division Bench ot Lahore High Court to which appeal was preferred from that decree was not inclined to follow the decision of the Division Bench of the Chief Court at Lahore in HARMUKH RAI MUNNA LAL V. RADHA MOHAN 54 I. C. 931 and referred to the Full Bench of the High Court the question: whether an order of adjudication (as an insolvent) passed against a father vests in the Official Assignee his sons interest in the joint family property. The Full Bench answered the question in the affirmative. In that context a question was posed by the Judicial Committee as to what is the right or interest which the Official Assignee acquires under the Presidency Towns Insolvency Act 1909 in the joint and unpartitioned immovable property of a Hindu joint family governed by law of Mitakshara on adjudication by a High Court that one of the coparceners of the joint family property was insolvent. The Judicial Committee referred to secs. 2 17 and 52 of the Presidency Towns Insolvency Act 1909 add observed as under:that means that when a Hindu who happens with his sons to constitute a joint family subject to the law of the Mitakshara is adjudged an insolvent under the Presidency Towns Insolvency Act 1909 not only his own rights but all the rights and interests of his sons who are his co-parceners in joint family property vest in the official assignee by virtue of the adjudication alone. That is a starting proposition. It must depend on the wording of the Presidency Towns Insolvency Act 1909 and the question is whether that could have been the intention of the Gover nor-General of India in Council when that Act was passed. That is a starting proposition. It must depend on the wording of the Presidency Towns Insolvency Act 1909 and the question is whether that could have been the intention of the Gover nor-General of India in Council when that Act was passed. IT is quite clear that if this joint family could be treated as a firm carrying on its business in partnership an order adjudging the father who managed the business or even an order adjudging the firm insolvent could not be made under that Act even if the firm consisted solely of a Hindu father and his two minor sons which would affect the interests of a minor who happened to be a partner in the firm. . . . In their Lordships opinion the question referred to the Full Bench of the High Court should have been answered in the negative. IT is true that sec. 17 of the Act of 1909 provides that on the making of an order of Adjudication the property of the insolvent shall vet in the Official Assignee and shall become divisible among his creditors and that by sec. 2 property is defined as including any property over which any person has a disposing power which he may exercise for his own benefit; and it may be said that a Hindu fathers power to sell the joint property and apply the proceeds to the payment of his debts is such a power. But the definitions in sec. 2 are only to apply unless there is something repugnant in the subject or context; and it is necessary therefore to consider the effect of the definition of property contained in that section in relation to the subject- matter which is being dealt with and the other sections of the Act. NOW as to the subject-matter namely the joint property of an undivided Hindu family it is certainly a starting proposition that the insolvency of one member of the family should of itself and immediately take from the other male members of the family their interests in the joint property and from the female members their right to maintenance and transfer true whole estate to an assignee of the insolvent for the benefit of his creditors. The fathers power to dispose of the joint property is not absolute but conditional on his having debts which are liable to be satisfied out of that property; and see. 2 seems to contemplate an absolute and unconditional power of disposal. And if the later sections of the Act are examined it becomes apparent that this cannot have been the intention of the statute. Sec. 52 provides that the property of the insolvent divisible among his creditors shall comprise 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 and it is difficult to reconcile this provision with the proposition that the property itself vests in the assignee. SEC. 23 provides that when an adjudication. is annulled the property of the debtor shall (subject to any direction of the Court) revert to the debtor to the extent of his right or interest there of but this section contains no provision for the reverter of property over which the debtor had a disposing power only to the per sons who were entitled to it subject to this power. SEC. 76 which enacts that the insolvent shall be entitled to any surplus re- maining after payment in full of his creditors is equally silent as to the destination of surplus property in which others had an interest. Having regard to these considerations and to the scope of the Act their Lordships are satisfied that it was not the intention of the Act that on the insolvency of a father the joint property of his family should at once vest in the assignee. It may be that under the provisions sec 52 or in some other way that property may in a proper case be made available for payment of the fathers just debts but it is quite a different thing to say that by virtue of his insolvency alone it vests in the assignee and no such provision should be read into the Act. It is therefore clear from this decision of the Privy Council that it is only the capacity of the father which is vested in the official assignee and not the undivided interest or the share of the sons in the joint family property. It is therefore clear from this decision of the Privy Council that it is only the capacity of the father which is vested in the official assignee and not the undivided interest or the share of the sons in the joint family property. 11 A Full Bench of Madras High Court in OFFICIAL ASSIGNEE MADRAS V. RAMACHANDRA AIYAR AND OTHERS A. I. R 1928 MADRAS 735 held that after the adjudication of the father as an insolvent and the vesting of his rights in the Official Assignee the institution of a partition suit by the sons of the insolvent affects a severance of the joint family status and therefore. the power to sell their shares by private sale of the Official Assignee who steps into the shoes of the father is extinguished although the Official Assignee by proper proceedings in the insolvency Court may proceed against their shares. The majority Court consisting of Ramesam and Madhavan Nair JJ while dealing with the contention that after passing to the Official Assignee the power becomes incapable of being destroyed on the parity of reasoning that an attachment of property in the hands of the father in execution of a money decree observed (per Ramesam J.) as under:. . ONE of the disabilities attached to the power is that it is extinguished on a division of status. To say that it continues in the hands of the Official Assignee after division is not to say that he gets it exactly as it stood in the fathers hands. For these reasons I am of opinion that the power as passed to the Official Assignee cannot enlarge the nature of the power and add to it qualities which it did not possess before. . . . . . . Madhavan Nair J. concurring with Ramesam J. observed as under in respect of the aforesaid contention:the second argument that is advanced on behalf of the Official Assignee is that since the power to sell came to be vested in the Official Assignee by an order of Court that power can be exercised by him unaffected by the charge in the relationship of the parties introduced by the partition suit instituted by the minors. . . . . . . . . . . . . . . . . It seems to me that the power vested in the Official Assignee by the order of the Court to sell the sons interests in the joint family property cannot with regard to its quality and nature be compared to attachment of the property. It is clear that so far as the minors shares are concerned no interest in property is vested in the Official Assignee by the order of the Court (SATNARAIN V. BEHARI LAL (supra) what he gets is only a power to sell the interests of the minors in the joint family properties and this power he gets by reason of his standing in the shoes of the insolvent father. Necessarily therefore he gets such power subject to its inherent defect which is that it can be put an end to by separation in status or by a bona fide partition between the members of the joint family. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The official Assignee gets the power with all its advantages and burdens. One of the burdens or defects as I have pointed out is that it can be extinguished by separation in status of the members of the joint familymr. Shah however made an attempt to persuade us that what vests in the official assignee when a father is adjudged insolvent is the power of the father to alienate the undivided share or interest of his sons and it is therefore a property which cannot be divested on happening of subsequent events. In support of his contention reliance was placed by him on the decision of the Supreme Court in CHERUVU NAGESWARASWAMI V. VADREVU VISWASUNDARA RAO AND OTHER A. I. R. 1953 S. C. 370 where the Court was re. quired to consider the effect of the amendment made to the Provincial Insolvency Act 1948 when sec. 28a was brought on the statute book retrospectively. Mr. Justice Mukherjea as he then was speaking for the Court heldthe language of the section indicates that its operation has been expressly made retrospective. quired to consider the effect of the amendment made to the Provincial Insolvency Act 1948 when sec. 28a was brought on the statute book retrospectively. Mr. Justice Mukherjea as he then was speaking for the Court heldthe language of the section indicates that its operation has been expressly made retrospective. The result therefore is that the power of defendant I to alienate the interest of his sons defendants 2 and 3 in the mortgaged properties for satisfac tion of his antecedent debts did pass to the Receiver as property within the meaning of the Provincial Insolvency Act and consequently on a sale by the Receiver the interest of defendants 2 and 3 did vest in the sixth defendant and he alone must be held competent to exercise the right of redemption. MR. Shall has laid a great emphasis on this observation to impress upon us that under sec. 52 (2) of the Presidency Towns Insolvency Act 1909 the power of the father to alienate his sons undivided interests and shares in the joint family property is vested in the official assignee on adjudication of the father as an insolvent and therefore once the property is vested it cannot be divested by subsequent events. We do not think that his contention of Mr. Shah is borne out by the decision of the Supreme Court. It is no doubt true that under sub-sec. (2) (b) of sec. 52 of the Presidency Towns Insolvency Act 1909 the property of the insolvent comprises inter alia 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. Sub-sec. (2) of sec. Sub-sec. (2) of sec. 52 reads as under: (2) Subject as aforesaid the property of the insolvent shall comprise the following particulars namely - (a) x x x x x x x (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) x x x x x x xit is no doubt true that the power of the father to alienate the undivided shares or interests of the sons of joint family property is available to the official assignee on the adjudication of the father as insolvent but it is available as a capacity and it cannot be urged without violence to the language of the sub-sec. that the undivided interest or share of the sons in the joint family property is vested in the official assignee. It is merely the capacity power or right of the father to alienate the undivided interest or share of his sons for satisfaction of antecedent debts which are neither immoral or illegal which is vested in the official assignee as the particulars of the properties of the insolvent but that is not tentamount to saying that the undivided property of the sons is vested in the official assignee. We do not think therefore that we can agree with Mr. Shah that the subsequent events cannot therefore divest that capacity. It is too late in the day to contend that the power or capacity of the official assignee is larger than that of the father. It is co-extensive with that of the father and exists as long as the family remains joint. if that power or capacity is not exercised in the life time of the father can it be said that that power or capacity would still be available to the official assignee after the death of the insolvent-father ? Mr. Shah has therefore to rely on the provisions contained in sec. 93 of the Presidency Towns Insolvency Act which provide as under:93 Continuance of proceedings on death of debtor.-If a debtor by or against whom an insolvency petition has been presented dies the proceedings in the matter shall unless the Court otherwise orders be continued as if he were alive. Shah has therefore to rely on the provisions contained in sec. 93 of the Presidency Towns Insolvency Act which provide as under:93 Continuance of proceedings on death of debtor.-If a debtor by or against whom an insolvency petition has been presented dies the proceedings in the matter shall unless the Court otherwise orders be continued as if he were alive. There is no provision in the Provincial Insolvency Act 1920 which is pari-materia with the one contained in sec. 93 of the Presidency Towns Insolvency Act 1909 Sec. I? of the Provincial Insolvency Act 1920 provides for continuance of proceedings on death of debtor. It reads as under: ( 8 ) CONTINUANCE of proceedings on death of debtor. If a debtor by or against whom an insolvency petition has been presented dies the proceedings in the matter shall unless the Court otherwise orders be continued so far as may be necessary for the realisation and distribution of the property of the debtor. SEC. 93 of the Presidency Towns Insolvency Act 1909 is correspon- ding to the provision contained in sec. 80 (9) of the Bankruptcy Act of 1869 Sec. 40 of the Bankruptcy Act is corresponding to sec. 15 of the Presidency Towns Insolvency Act 1909 and sec. 15 (4) thereof is corres- ponding to sec. 52 (2) (b) of the Presidency Towns Insolvency Act 1909 Mr. Shah strongly relied on this provision by urging that all the proceedings in the matter of insolvency of a debtor continues after his death as if were alive. He urged therefore that the capacity of the father to alienate or transfer the undivided share or interest of his sons in the joint family property which vests in the official assignee under sec. 52 (2) (b) of the Pre- sidency Towns Insolvency Act 1909 continues to be available to the official assignee after the death of the insolvent-father. We are afraid we cannot accede to this submission of Mr. Shah for the simple reason that the provision contained in sec. 93 cannot be pressed into service as it provides only for the continuance of proceedings after the insolvents death so as to avoid the abatement thereof as it happens under Order 22 of the Civil Procedure Code when a party dies and if the right to sue does not survive. 93 cannot be pressed into service as it provides only for the continuance of proceedings after the insolvents death so as to avoid the abatement thereof as it happens under Order 22 of the Civil Procedure Code when a party dies and if the right to sue does not survive. That provision cannot be availed of for purposes of enlarging the power of the father which could not have been exerci- sed by any other coparcener or his successor in his absence. A similar question arose in NICHOLS V. NIXEY (1885) 29 CH. 1005 under the Bankruptcy Act of 1869 where a debtor had a general power of appointment by a deed and when trustee in liquidation sought to exercise that power after the death of the debtor to appoint the property. A summons was taken out by the purchasers under the Vendor and Purchaser Act 1874 to have it declared that a good title had not been shown. It was contended on behalf of the purchasers the under sec. 15 (4) of the Bankruptcy Act 1869 the trustees could exercise any general power which the bankrupt could have exercised so long and in the same way as the bankrupt could himself have exercised it and not in any way to enlarge such power. On behalf of the trustees it was contended that they enjoyed the same position with regard to such a power as the bankrupt was at the commencement of the Bankruptcy and the subsequent death of a bankrupt does not affect the capacity to exercise the general power exercisable by Act inter vivos which is vested in the trustee as part of the property of the bankrupt. Pearson J. negativing the contention urged on behalf of the trustee held as under:. . . THE question depends entirely on the 15th section of the Bankruptcy Act 1869 The question is whether that section keeps alive or reinstates the power now Lock- wood is dead and certainly can no longer exercise it himself ? The difficulty arises from the use of the words as might have bed exercised by the bankrupt for his own benefit at the commencement of his bankruptcy. It is said these words enable the trustee at any time to exercise a power the bankrupt had at the commencement of the bankruptcy and that therefore at the present moment Nichols can make a good title. It is said these words enable the trustee at any time to exercise a power the bankrupt had at the commencement of the bankruptcy and that therefore at the present moment Nichols can make a good title. I think that cannot possibly be the meaning. I come to the conclusion that the power was intended to be exercised in the same way as the bankrupt might exercise it and that all that is given to the trustee in bankruptcy is a capacity to do that to the same extent and in the same manner as the bankrupt might have done and no other capacity. Supposing a power had been given to the bankrupt to be exercised with the consent of a third person I do not apprehend that in that case the trustee could have exercised that power without the consent of the third person. Supposing a power had been given to be exercised during a limited time the trustee could not after the expiration of that period have exercised it. To be able to do so would not be a capacity to exercise the power but to exercise a different power. And inasmuch as the power in this case came to an end on the bankrupts death I think the power no longer exists and whatever the capacity of the trustee means it is absolutely impossible for him to exercise a non-existing power. I therefore determine that the power not having been exercised during the life of the bankrupt the trustee cannot now make a good title under the powerit should be recalled at this stage that under the Bankruptcy Act 1869 there was a similar provision of continuance of proceedings on the death of a debtor as one which the Presidency Towns Insolvency Act 1909 contains in sec. 93. The corresponding section in the Bankruptcy Act 1869 was contained in sec. 80 (9) and it provided that if debtor by or against whom a bankruptcy petition has been presented dies the proceedings in the matter shall unless the Court otherwise orders be continued as if he were alive. Sec. 112 of the Bankruptcy Act 1914 also provides in the same term for continuance of proceedings on death of debtor. 80 (9) and it provided that if debtor by or against whom a bankruptcy petition has been presented dies the proceedings in the matter shall unless the Court otherwise orders be continued as if he were alive. Sec. 112 of the Bankruptcy Act 1914 also provides in the same term for continuance of proceedings on death of debtor. Inspite of such a provi- sion in NICHOLS V. NIXEY (supra) the Court considered that the power of appointment Was not available for exercise by the trustee after the death of the insolvent. ( 9 ) MR. Shah relied on the decision of a Single Judge of the Bombay High Court in support of his contention that the death of any insolvent does not make any difference so far as the power of the insolvent-father to alienate the joint family property including sons undivided interest for payment of his antecedent debts which are neither immoral nor illegal which has vested in the official assignee or receiver in FAKIRCHAND MOTI- CHAND V. MOTICHAND HURRUCKCHAND (1883) I. L. R. BOM. 438 where Mr. Justice Lathan was required to consider a question in the context of a vesting order made under the Indian Insolvent Act 11 and 12 Vict. c. 21. He observed as under:next in order is the question what is the effect of the death of the insolvent on the proceedings pending in his insolvency ? It is some what remarkable that there is no provision in the Indian Insolvent Act corresponding to those in the more recent English Acts for the continuance of the proceedings after the death of the insolvent as for instance sec. 80 cl. 9 of the Bankruptcy Act 1969 There is perhaps less authority on the point in India than might have been expected. But in In re Sitaram Abbaji (10 Bom. H. C. 58) it was held by Gibbs J. that the Official Assignee was to proceed so far as circumstances would permit in the same manner as he would have done had the insolvent been living. NOW this decision of the learned Single Judge of the Bombay High Court in Fakirchand Motichands case (supra) is no longer good law in view of the decision of the Privy Council in SATNARAIN V. BEHARILAL (supra ). Their Lord- ships in the said decision set out at pages 22-23 the facts of the case and secs. NOW this decision of the learned Single Judge of the Bombay High Court in Fakirchand Motichands case (supra) is no longer good law in view of the decision of the Privy Council in SATNARAIN V. BEHARILAL (supra ). Their Lord- ships in the said decision set out at pages 22-23 the facts of the case and secs. 7 and 30 of the 11 and 12 Vic. c. 21 and observed as under:if their Lordships had to construe sec. 7 of the 11 and 12 Vic. c. 21 they would doubt that the Imperial Parliament sitting at Westminister in passing the 11 and 12 Vic. c. 21 ever contemplated or intended that the Real and Personal Estate of such Petitioner which a Court might order to be vested in an official assignee or a right to sell it for the debts of a Hindu father might be held to include or should include the unpartitioned separate interest of a Hindu co-parcener who was not a petitioner in the immovable property of a joint family. THEIR Lordships further considered the provisions of the Presidency Towns Insolvency Act 1909 and held that what vests on the insolvency of father is merely his power or capacity to alienate the entire joint family property for the payment of his antecedent debts which are neither immoral nor illegal and neither the interest nor the property itself of the sons vests in the official assignee. Their Lordships also held that the fathers power to dispose of the joint family property was not absolute but conditional on his having debts which liable to be satisfied out of that property and sec. 2 seemed to contemplate an absolute and unconditional power of disposal. 13 In RAMANLAL MANILAL BHATT AND ANOTHER V. MANILAL LAXMICHAND AND OTHERS A. I. R. 1959 BOMBAY 229 a Division Bench consisting of J. C. Shah and Gokhale JJ. 2 seemed to contemplate an absolute and unconditional power of disposal. 13 In RAMANLAL MANILAL BHATT AND ANOTHER V. MANILAL LAXMICHAND AND OTHERS A. I. R. 1959 BOMBAY 229 a Division Bench consisting of J. C. Shah and Gokhale JJ. held that although on first impression in view of the defini- tion of the word property it appears that the receiver in insolvency is invested with not only the property belonging to the insolvent but also property over which the insolvent had a disposing power which he may exercise for his own benefits that capacity of an insolvent to dispose of joint family property for his own benefit having regard to the fact that what vests in the receiver is property which is to become divisible among the creditors is not property within the meaning of sec. 28 (2) and even after the insertion of sec. 28a in the Provincial Insolvency Act what avails to the receiver as a property of the insolvent is merely the capacity to exercise power in or over or in respect of the property which the insolvent might have exercised for his own benefit. It further held that a Hindu father has the power or capacity to dispose of for his own benefit the interest of his sons in the joint family property and therefore by the operation of sec. 28a such capacity may be exercised by the receiver. Mr. Justice Shah speaking for the Court referred to the observations of the Judicial Committee of Privy Council in SAT NARAIN V. BEHARILAL (supra) and thereafter stated as under in paragraph 7 at page 231:from these observations it is evident that the property of sons which a Hindu father may dispose of for his own benefit i. e. to satisfy his own debts which are not Avyavanarika is not vested in the receiver. The view taken by the Courts in India to the contrary in cases such as FAKIRCHAND V. MOTICHAND I. L. R. 7 BOM. 438; JAGABHAI V. BHUKANDAS I. L. R. 11 BOM. 37 AND BANGAYYA V. THANIKACHALLA MUDALI I. L. R. 19 MAD 74 decided under the Indian Insolvency Acts 11 and 12 Vict. 67 must be regarded as superseded. Under sec. 438; JAGABHAI V. BHUKANDAS I. L. R. 11 BOM. 37 AND BANGAYYA V. THANIKACHALLA MUDALI I. L. R. 19 MAD 74 decided under the Indian Insolvency Acts 11 and 12 Vict. 67 must be regarded as superseded. Under sec. 52 (2) (b) of the Presidency Towns Insolvency Act the expression property of the insolvent comprises the capacity to exercise and to take proceedings for exercising all such powers in or over pro- perty as might have been exercised by the insolvent for his owl benefit and it was observed in Sat Narains case 52 Ind. App. 22 (A. I. R. 1925 P. C. 18) that under the provisions of sec. 52 or in some other way the property may in a proper case be made available for payment of the fathers first debts. In view of those observations of the Division Bench in Ramanlals case (supra) the decision of the learned Single Judge of the Bombay High Court in Fakirchand Motichands case (supra) is no longer a good law. ( 10 ) MR. Shah however tried to distinguish the decision in Nichols case (supra) by urging that this case has been distinguished by the Full Bench of Madras High Court in BALAVENKATASEETHARAMA CHETTIAR AND ANOTHER V. OFFICIAL RECEIVER TANJORE AND OTHERS A. I. R. 1926 MADRAS 994 where in similar circumstances the Full Bench held that this power continues even after the fathers death by virtue of sec. 17. The case before the Full Bench of Madras High Court was one under the Provincial Insolvency Act. The Full Bench followed the decision of Privy Council in Sat Narains case (supra) and held that the undivided shares of the sons in the joint family property do not vest in the official assignee on the father being declared insolvent. However the Full Bench was of the view that because the insolvent father died before the receiver effected his sale it was with. out authority and void could not be accepted on the ratio of NICHOLS V. NIXEYS case (supra) because the answer to the contention is to be made having regard to the provisions contained in sec. 17 of the Provincial Insolvency Act which deals with the cases where insolvent debtor dies pending proceedings in insolvency. Mr. Justice Krishnan who delivered the leading judgment observed as under at page 996the answer to this contention is provided for by sec. 17 of the Provincial Insolvency Act which deals with the cases where insolvent debtor dies pending proceedings in insolvency. Mr. Justice Krishnan who delivered the leading judgment observed as under at page 996the answer to this contention is provided for by sec. 17 of the Act which deals with cases where the insolvent debtor dies pending proceedings in insolvency That section enacts that unless the Court otherwise orders the proceedings shall be continued so far as may be necessary for the realization and distribution of the property of the debtor. The power of sale can thus be exercised for the realisation of the assets of the insolvent though he is dead. The English case cited it thus not applicable. Mr. Justice Venkatasubba Rao in his concurring judgment while dealing with this contention observed:nicholas V. NIXEY has been cited for the proposition that the trustee cannot exercise a power of appointment after the death of the bankrupt the donee of the power. The obvious answer to this is that a decision which applies to powers in the ordinary legal sense of that term cannot be treated as an authority in regard to what is an entirely different thing namely the right which has come to be described as power under the Hindu Law of the father to dispose of his sons interest in the joint family property. With respect to the learned Judges of the Madras High Court we have not been able to appreciate how the difference between a general power of appointment as known in English Law and a power of a Hindu father under the Hindu Law to alienate the entire joint family property for his debts which are not Avyavaharika can make any difference in answering the contention that what is the effect of an insolvent fathers death on his power which has vested in the official assignee. We will like to emphasis again that in NICHOLAS V. NIXEYS case (supra) the question was answered with reference to the provision contained in see 15 (4) of the Bankruptcy Act 1869 though there was a provision in see. 80 (9) which was similar to one contained in the Presidency Towns Insolvency Act 1909 for the continuance of proceedings in insolvency on the debtors death. The decision of the Full Bench of Madras High Court pressed into service by Mr. 80 (9) which was similar to one contained in the Presidency Towns Insolvency Act 1909 for the continuance of proceedings in insolvency on the debtors death. The decision of the Full Bench of Madras High Court pressed into service by Mr. Shah can also be distinguished on the ground that it was a case under the Provin- cial Insolvency Act which contained a provision in sec. 17 thereof which provides that if a debtor by or against whom an insolvency petition has been presented dies the proceedings in the matter shall unless the Court otherwise orders be continued so far as may be necessary for the realisation and distribution of the property of the debtor. Sec. 93 of the Presidency Towns Insolvency Act 190 is not pari materia with sec. 17. Apart from this distinction the real question is whether an official assignee can exercise the capacity or take proceedings for exercising of such power in or over or in respect of the property as might have been exercised by the insolvent after his death ? The question in our submis- sion cannot be answered with reference to sec. 93 of the Presidency Towns Insolvency Act. It can be only answered with reference to sec. 52 (2) (b) which lays down that the property of the insolvent comprises of the capacity or the power as might have been exercised by the insolvent for his own benefit at the commencement of his insolvency or before his discharge and if the power had come to an end by the death of the insolvent it is absolutely impossible for an assignee to exercise a non-existing power for the simple reason that the power of the official assignee is co-extensive with and equal to that of the father and that the power continues so long as the family remains joint. If the division in the family can bring about an end of the power similarly in our opinion the death will also put an end to that power. It is not a property in the strict sense of the term as defined in the Presidency Towns Insolvency Act. It is merely a capacity or power which if not exercised during the life time of the father would be exhausted and the official assignee could not have exercised non-existing power. It is not a property in the strict sense of the term as defined in the Presidency Towns Insolvency Act. It is merely a capacity or power which if not exercised during the life time of the father would be exhausted and the official assignee could not have exercised non-existing power. Our attention has been invited to a decision of the Lahore High Court in MIRZA AND ANOTHER V. JHANDA RAM AND OTHERS A. I. R. 1930 LAHORE 1034 where the facts were that on 13th August 1924 one Khan Beg presented a petition under the Provincial Insolvency Act 5 of 1920 in the Court of the District Judge Sargodha praying that he be adjudicated an insolvent. On 23rd March 1926 the District Court passed an order adjudicating Khan Beg as an insolvent. The official receiver took possession of the property and proceeded to arrange for the sale of the land and the house. But before he could enter into any contract of sale Khan Beg died on 2nd September 1927. The two sons of the deceased insolvent made an application on 5th December 1927 to the Insolvency Court objecting to the proposed sale of the house and the land on the ground that the house was ancestral and was being used for agricultural purposes and therefore was exempt from attachment or sale. The Division Bench consisting of Broadway and Tek Chand JJ. held that no attempt was made before it to show that the house was ancestral in the hands of the deceased insolvent but assuming it that it was ancestral it having already vested in the receiver can be made exempt from the sale after the death of the insolvent only if his heirs succeeded in showing that the debts of the deceased were tainted with immorality or were otherwise illegal. We do not think that this case can be of any assistance to the cause of Mr. Shahs client because it does not deal at all with the question with which we are concerned in this appeal. In that view of the matter therefore we are of the opinion that the 2nd contention of Mr. Nanavati should be uphled. We do not think that this case can be of any assistance to the cause of Mr. Shahs client because it does not deal at all with the question with which we are concerned in this appeal. In that view of the matter therefore we are of the opinion that the 2nd contention of Mr. Nanavati should be uphled. ( 11 ) THE result is that this appeal is allowed and it is held that at the auction sale only the share of the insolvent deceased Jethalal Narandas in the suit property was put up for sale and actually sold to the respondent-plaintiff. Appeal allowed. .