Venkiteswaran v. Venkitakrishnan — 1980 DIGILAW 309 (KER)

ORDER Chandrasekhara Menon, J. 1. The two Civil Revision Petitions arise out of two insolvency petitions where respondents 1 to 7 in those petitions (who are the same persons in both the cases) were sought to be adjudicated as insolvents and the entire assets of the joint family of the respondents including the business run in the name and style of "M. N. Venkitasubramania Iyer and Sons" and " Narasimha Financing Company" be administered under the law of insolvency. The 1st respondent in C. R. P. No. 2788 of 1978 is the petitioner in I.P. No. 3 of 1976 while the 1st and the 2nd respondents in C.R.P. No. 2886 of 1978 are the petitioners in I.P. No. 4 of 1976, both before the Sub Court of Palghat. In both the petitions it is alleged that M. N. Venkitasubramania Iyer and Sons is a joint family concern of respondents 1 to 7 in the insolvency petitions carrying on the business as Bankers while Narasimha Financing Company, a Partnership registered under the Indian Partnership Act; also is a concern of the joint family. Large amounts were borrowed by these concerns for the purpose of their joint family business. An amount of Rs. 30,000 is alleged to be due to the petitioning creditor in I.P. No. 3 of 1976 by way of deposit loan as evidenced by Ext. A6, dated 7th June 1976, a fixed deposit receipt. An amount of Rs. 10,000 is due to the petitioning creditors in I. P. No. 4 of 1976 as per two receipts Exts. A1 of 25th November 1975 and A2 of 20th January 1976, each for Rs. 5,000. Mr. Venkitasubramania Iyer died in September 1975, while his eldest son the succeeding manager died on 13th May 1976. The successor manager Mr. Subramanian stopped the business immediately. He called for a meeting of the creditors of these concerns as per Ext. A4 notice of 26th May 1976. On 16th June 1976 as per Ext. A5 a power of attorney was executed by the members of the joint family including the heirs of Mr. Narasimhan in favour of nine creditors to collect the outstandings and pay off the debts. The acts of insolvency alleged in I. P. No. 3 of 1976 are: (1) Suspension of payment; (2) Scheme of composition; (3) Closure of business; and (4) Transfer of bus service to favoured creditors. Narasimhan in favour of nine creditors to collect the outstandings and pay off the debts. The acts of insolvency alleged in I. P. No. 3 of 1976 are: (1) Suspension of payment; (2) Scheme of composition; (3) Closure of business; and (4) Transfer of bus service to favoured creditors. The acts of insolvency alleged in the other petition were the execution of power of attorney Ext. A5 and fraudulent preference, collusive attachment, etc. The insolvency Court held that the suspension of payment consequent on the execution of power of attorney Ext. A5 is an act of insolvency proved in the case. The other acts of insolvency alleged are not proved. The court held that the 1st respondent in the insolvency petitions who is the Manager of the joint family is personally liable though respondents 2to7 are not personally liable as they have not participated in the joint family business. It was held that the entire joint family assets shall vest in the court and the Official Receiver was directed to administer the estate. 2. The matter was taken up in appeal by the present revision petitioners, C.M.A. No. 57 of 1977 against I.P. No. 3 of 1976 and C.M.A. No. 56 of 1977 against I. P. No. 4 of 1976. Apart from the Manager of the joint family, Mr. Subramanian, no other members of the joint family were impleaded in the appeal nor was the Official Receiver a party to the appeal. The appellate court confirmed the finding regarding act of insolvency. The court further held that the personal liability of the other members of the family cannot be challenged by any other party nor the adverse order passed against them, namely, vesting the joint family properties in the Official Receiver can be questioned by any other person as they themselves have nut challenged the same. Before the appellate court it had been contended that because of Act 30 of 1976 by which there has been a disruption in the joint family status notwithstanding the provisions in S.28 of the Insolvency Act that the order of adjudication will relate back to the filing of the petition that will be of no avail to the Official Receiver to proceed against the interest of the other joint family members. This was rejected by the court stating that under Act 30 of 1976 there is a provision that the joint family members will be entitled to claim shares only subject to their liability for joint family debts. In this view, the appeals were dismissed confirming the order passed by the lower court. This has given rise to these civil revision petitions. C. R.P. No. 2788 of 1978 is against I.P. No. 3 of 1976 and C.R.P. No. 2886 of 1978 is against I.P. No. 4 of 1976. 3. It is strongly contended before me by the learned counsel for the petitioners that as only the 1st respondent has been adjudged to be insolvent and the prayer for adjudging the other members of the family having been disallowed on the ground that they had not participated in the running of the business of the joint family nor had they acquiesced in the running of the business and therefore they are not personally liable for the debts, the insolvency court went wrong in vesting the entire joint family asset in the court. The findings of the courts below, according to the counsel, which make the 1st respondent alone liable coupled with the adjudication of the 1st respondent as insolvent do not justify the vesting order directing the entire joint family assets to be vested in the court. This is alleged to be opposed to S.29, 28 and 28A of the Provincial Insolvency Act. It is also opposed to numerous judicial pronouncements on the matter. The sum and substance of the argument is that a joint family as such cannot be adjudged insolvent. In the light of that it will be wrong to vest the joint family properties in the court or in the Official Receiver. It is urged that on the adjudication of the manager of the joint family as insolvent, the rights of the other members of the joint family or the entire joint family assets could not vest in the court or the Official Receiver. It is also urged that an act of insolvency of one partner in a firm cannot be considered to be an act of insolvency of another partner. For that reliance is placed on the decision of the Supreme Court in Firm Mukund Lal v. Purushottam Singh AIR 1968 SC 1182 . It is also urged that an act of insolvency of one partner in a firm cannot be considered to be an act of insolvency of another partner. For that reliance is placed on the decision of the Supreme Court in Firm Mukund Lal v. Purushottam Singh AIR 1968 SC 1182 . It is pointed out that the Supreme Court in that case held that a firm can be adjudged insolvent because the rules framed by the concerned High Court provide for that. But in Kerala, the rules provide otherwise. The order of adjudication has to be made against partners individually under the Kerala rules. In regard to the contention raised by the respondents herein that the appeals before the court below were incompetent for the non impleadment of the Official Receiver, which objection I will deal with in detail the petitioners would contend that the objection was never raised in the lower appellate court. In this court they raised it in the counter of 11th December 1978 only although the revisions were filed as early as 25th September 1978. The petitioners filed C.M.P. Nos. 18451 and 1840 of 1978 in the two civil revision petitions respectively for impleading the Official Receiver as supplemental respondent. Therein notice was ordered to the Official Receiver on 22nd December 1978. It was also pointed out that on 10th September 1979 this Court directed the Official Receiver to appear in person or through counsel on 3rd October 1979. It is also pointed out that the Official Receiver appeared through Mr. G. M. Devan, Advocate. In regard to the objection raised by the respondents that the petitioners have no locus standi to challenge the order of the Insolvency Court directing the entire joint family assets to be vested in the court inasmuch as none of the adult members of the joint family has preferred an appeal against the order of the Trial Court, the petitioners would contend that they are creditors of the Narasimha Financing Company which was a partnership firm. O.S. No. 133 of 1976 of the Sub Court, Palghat was a suit filed by them against Narasimha Financing Company and the legal representatives of Narasimhan and also against Mr. V. Subramanian, the 1st respondent in the insolvency petitions. That suit was decreed on 7th February 1977 for a sum of Rs. 15,393.33. O.S. No. 133 of 1976 of the Sub Court, Palghat was a suit filed by them against Narasimha Financing Company and the legal representatives of Narasimhan and also against Mr. V. Subramanian, the 1st respondent in the insolvency petitions. That suit was decreed on 7th February 1977 for a sum of Rs. 15,393.33. According to the petitioners, on the death of Venkitasubramania Iyer and Narasimhan, the partnership has been statutorily dissolved under S.42(c) of the Indian Partnership Act. Therefore the rights of these persons devolved on respondents 7, 6, 1, 3 to 5, 2 and one Hariharan (second son of the 1st respondent) in accordance with the provisions of the Hindu Succession Act, 1956. The petitioners therefor could have realised the decree amount from the legal representatives of deceased Venkitasubramania Iyer and Narasimhan. According to them, by the order of the Insolvency Court, the shares of the legal representatives also vest in the court and therefore they are highly prejudiced by the order of the court and hence they are entitled to challenge the vesting of these shares. 4. It is also contended that pending disposal of the matter before the Insolvency Court the Joint Hindu Family System (Abolition) Act (Act 30 of 1976) came into force on 1st December 1976, and by virtue of S.4 of the Act there is a statutory partition of the joint family with the result that the 1st respondent ceased to be the Manager from 1st December 1976. It is also urged that consequently the other members of the joint family should also be deemed to have severed from the coparcenary assuming the status of tenants in common. Therefore, the argument runs, the court could not by adjudicating the 1st respondent alone as insolvent direct the joint family assets to be vested in the court. The coming into force of Act 30 of 1976 and its legal effects are matters which the court can take judicial note of. It was also specifically brought to the notice of the Trial Court. 5. According to the petitioners S.6 of the Act would only save debts binding on a joint family and contracted before the commencement of the Act. It was also specifically brought to the notice of the Trial Court. 5. According to the petitioners S.6 of the Act would only save debts binding on a joint family and contracted before the commencement of the Act. As the Insolvency court had found that the 1st respondent alone is personally liable and the other members of the family are not liable for the debts, the petitioners would contend that it follows that the debts are not binding on the joint family and hence S.6 will not be attracted. According to them, the vesting part of the order clearly contravenes Act 30 of 1976 and this Court has ample powers to set at naught the illegal order or modify the same in accordance with the true legal position whether or not the joint family members have challenged the same. 6. I will deal with these questions taking due account of the arguments advanced on the matter by the learned counsel for the respondents. On the evidence before the court including that of the joint family manager RW 1 and the power of attorney executed Ext. A5. It would positively appear that both Venkitasubramania Iyer and Sons and Narasimha Financing Company are joint family concerns. With respect to this fact of finding this Court in revision cannot interfere. I need here only refer to the decision of the Supreme Court in Malini Naicker v. Seth Manghraj AIR 1969 SC 1344 that findings of fact are not open to review by the High Court acting under the first proviso to S.75(1) of the Provincial Insolvency Act, the corresponding provision in the Kerala Act being the first proviso to S.79(1). The Supreme Court said therein that the legislature quite clearly did not confer on the High Court under the first proviso to S.75(1) of the Act an appellate power nor did it confer on it a jurisdiction to reappreciate the evidence on record. If the legislature intended to confer power on it to reexamine both questions of law and fact it would have conveyed its intention by appropriate words as has been done under various other statutes. A wrong decision on facts by a competent court is also a decision according to law. 7. If the legislature intended to confer power on it to reexamine both questions of law and fact it would have conveyed its intention by appropriate words as has been done under various other statutes. A wrong decision on facts by a competent court is also a decision according to law. 7. It was strongly contended before me by the learned counsel for the respondents that the adult members of the family and the minors through guardian have clearly expressed their intention to surrender their shares in the business and the family properties for the benefit of the general body of creditors. In Ext. A5 the power of attorney all except two minors, the 2nd respondent and the 5th respondent in I.P. No. 4 of 1976, had joined. It was also pointed out that the conduct of the members of the family is also to the effect that they should not be adjudicated insolvent but that their shares may be taken for the benefit of the creditors. The Insolvency court had directed that the assets of the two concerns and the joint family properties shall vest in court and directed the Official Receiver to administer the estate. None of the adult members of the family has challenged this order. The effect of the order of the court was to assign the shares of the adult members to the Receiver for the benefit of general body of creditors. The effect of the adult members not questioning or challenging the order is that they stand by the assignment effected by the court by the order. A simple creditor of the joint family concerns who has not got any right by way of security or attachment cannot challenge the order. Mr. T. S. Venkiteswara Iyer would point out in this connection: Suppose all the adult members had sold their shares to a third party; a simple creditor cannot question it. He cannot even file a suit under S.53 of the Transfer of Property Act for the alienation is to discharge the other debts. Here the revision petitioners have no charge nor have they levied any attachment over the shares of the members. In this connection he referred to the decision of the Supreme Court in Pannalal v. Mr. Naraini AIR 1952 SC 170 . Here the revision petitioners have no charge nor have they levied any attachment over the shares of the members. In this connection he referred to the decision of the Supreme Court in Pannalal v. Mr. Naraini AIR 1952 SC 170 . There B. K. Mukherjea, J., speaking for a Bench consisting of himself, Fazl Ali and Bose, JJ., said disapproving the observations of Waller, J. In Subramanya v. Sabapathi ILR 51 Mad. 361. "An unsecured creditor, who has lent money to the father, does not acquire any lien or charge over the family property, and no question of his security being diminished, at all arises. In spite of his having borrowed money the father remains entitled to alienate the property and a mere expectation of the creditor however reasonable it may be, cannot be guaranteed by law so long as he does not take steps necessary in law to give him adequate protection." So long as the sharers have no complaint against the order of the Trial Court, the revision petitioners who have not taken any steps to get a right over the properties concerned would not have locus standi to challenge the order. The other members of the family wanted an equal distribution of all the assets of the family to all the creditors without discrimination, without scramble, and without difficulty or impediments in the smooth administration. If that be so, the revision petitioners who are unsecured creditors would have no right to attack the order against the wishes of the adult members. I think this contentions has to prevail. The other members of the family are not even impleaded in the appeal or in these revisions. It is their wish and will that are to prevail as against the unsecured creditors. It will not be possible for this Court to pass an order in their absence which will go against their wishes and interest. The revision petitioners have no present right in the shares of the other members of the family. I am of the view that the non impediment of the Official Receiver in the appeal and revision petitions would disable the petitioners to get a modification of the order of the Trial Court vesting the shares of the other members in the Official Receiver. The question is not whether this objection is raised in the lower appellate court or not. The question is not whether this objection is raised in the lower appellate court or not. The lower appellate court's decision was in favour of the respondents and I find no impediment in allowing them to raise this objection in this Court. No doubt, it was very vehemently contended with reference to some authorities that Official Receiver is not a necessary party. In this connection stress was laid by the learned counsel for the petitioners on the difference in wording in respect of the particular provisions in the Presidency towns Insolvency Act and the Provincial and the Kerala Insolvency Acts. In particular he referred to the decision of Tek Chand, J., in Moti Ram v. Kewal Ram AIR 1928 Lahore 208. There, his Lordship was dealing with an appeal against an order of adjudication under the Provincial Insolvency Act. By the order passed by the Insolvency court the debtor was adjudged insolvent and one Nazar Hussain Shah was appointed as receiver of the estate. This individual had not been impleaded in the appeal. A preliminary objection was raised by the contesting respondent in that case that the appeal cannot proceed as the receiver before the court below had not been impleaded as a party respondent. After referring to various decisions Tek Chand, J., said that having given much careful thought and anxious consideration to the contentions, he is of the view that the receiver is not a necessary party. He points out that under S.27 of the Provincial Insolvency Act if the court does not dismiss the petition, it shall make an order of adjudication. In S.28(2) it is provided that on the making of an order of adjudication the whole of the property of the insolvent shall vest in the court or in a receiver. S.56 empowers the court to appoint a receiver for the property of the insolvent either at the time of the order of adjudication or at any time afterwards and it is stated that "such property shall thereupon vest in such receiver". This is followed by S.58 which lays down that where no receiver is appointed, the court shall have all the rights of, and may exercise all the powers conferred on, a receiver under the Act. This is followed by S.58 which lays down that where no receiver is appointed, the court shall have all the rights of, and may exercise all the powers conferred on, a receiver under the Act. An examination of these sections of the Act, according to the learned Judge, would make it clear that on adjudication the property of the insolvent vest in the court and the court may or may not, as it thinks fit, appoint a receiver to take charge of the estate of the insolvent. It may administer the estate itself or it may decide to exercise these functions through a receiver. If and when the court chooses to delegate its function relating to the administration of the estate to a receiver, then, and not till then, does the estate vest in the receiver. The receiver has no independent status of his own. He is merely an official of the court, the hand through which the court chooses to act. The property primarily vests in the court, and it is only by virtue of the delegation of its powers by the court to him that the receiver is vested with the estate. If that is the correct legal position then it cannot be argued simply because under certain circumstances the property of the insolvent vests in the receiver for certain purposes, he is a person interested in the result of the appeal and is a necessary party to it. For otherwise in cases in which the court does not choose to appoint a receiver or where an appeal against the order of adjudication is preferred before a receiver is appointed under S.56, it would, by parity of reasoning, be necessary to implead the court as a party to the appeal. This position, according to the learned Judge, is absurd on the fact of it. Nobody would be heard to argue that in such a case the appeal cannot proceed because the court, which passed the order of adjudication and in which the property vests had not been impleaded as a party respondent. The learned Judge refers in support of this position to the decision of the Calcutta High Court in Jagannath Marwari v. Kalachand Banerjee AIR 1925 Cal. 785. 8. The learned Judge refers in support of this position to the decision of the Calcutta High Court in Jagannath Marwari v. Kalachand Banerjee AIR 1925 Cal. 785. 8. It may be noted here that this decision of the Calcutta High Court went up in appeal to the Privy Council, the Privy Council decision being reported in Kala Chand v. Jagannath AIR 1927 PC 108 . After referring to the relevant provisions of the Provincial Insolvency Act the Privy Council said that once a person has been adjudicated insolvent action against the insolvent cannot proceed in the absence of the person to whom his property has been assigned by the operation of law. The latter alone is entitled to transact in regard to it, and he and not the insolvent, has the sole interest in the subject matter of the proceeds. When once a property is devolved on an insolvent who is still undischarged, it vests in the receiver already appointed and he alone will be entitled to deal with the same. The alternative in the section applicable to vesting in the court was inserted to provide for the case of a receiver not being appointed at the same time as the adjudication of insolvency was made and to fore close an argument that vesting was suspended until the actual appointment of a receiver. The court only acts through a receiver and any estate acquired by or devolving on an insolvent is vested in him as from the date of acquisition or devolution whatever the date of the receiver's actual appointment. 9. As far as this case is concerned, it may be noted that the order of the Insolvency court is to the following effect: "The 1st respondent is adjudged as insolvent in this case. The entire joint family properties including the assets of the two concerns belonging to the joint family of the 1st respondent, shall vest in court inasmuch as the 1st respondent who is the manager of the joint family, is adjudged as insolvent and the Official Receiver is directed to administer the estate and it shall become divisible among creditors according to the provisions of the Insolvency Act." Therefore, simultaneously with the order of adjudication and directing the vesting of the properties in the court there is an order directing the receiver to administer the estate. 10. 10. As Rankin, C. J., said on behalf of a Division Bench in Gulam Mustaffa v. Madanlal AIR 1931 Calcutta 167 an Official Assignee (it was a case under the Presidency Towns insolvency Act) ought, in all cases of appeal from an adjudication order, to be made a party to the appeal. The reason is that the adjudication order when it is once made vests all the property of the insolvent in the Official Assignee and all creditors have an interest in the order. The effect of an appeal from an adjudication order, if the appeal is successful, is to take the property out of the Official Assignee's hands and to deprive the creditors of the benefit of the trusts of the property which was in the hands of the Official Assignee. The learned Chief Justice further said: "The confusion, if any, seems to arise from the fact that in a previous case the learned Judge quoting English authorities said that notice of the appeal must go to the Official Assignee and it seems to be thought that the notice of appeal is some peculiar and exceptional sort of notice which goes to a person who is not in the ordinary sense a party. I would only point out that, while in this country appeals are brought by filing a document called a 'memorandum of appeal', the English cases speak of a 'notice of appeal' because all appeals are brought by notice and by no other formality. The notice of appeal in an English case is exactly the same thing as the memorandum of appeal in an Indian case." 11. The learned counsel for the petitioners sought to distinguish this decision by stating that under the Presidency Towns Insolvency Act the property of the insolvent vests only in the Official Assignee and there is no question of vesting in the court. It is clear from Chief Justice Rankin's observations that the principle he states is not based on any particular provision. 12. No doubt, another Division Bench of the Lahore High Court in Ram Rakha Mal and Sons v. Surindar Singh AIR 1941 Lahore 134 has followed Justice Tekchand's decision. There the Court said that the Official Liquidator is not a necessary party to an appeal against a compulsory winding up order of a Company. Reliance was placed on the decision of Tekchand, J., under the Provincial Insolvency Act. There the Court said that the Official Liquidator is not a necessary party to an appeal against a compulsory winding up order of a Company. Reliance was placed on the decision of Tekchand, J., under the Provincial Insolvency Act. I do not find any absurdity even in impleading a court. 13. I think it will be useful in this connection to refer to the decision relied on by Mr. T. S. Venkiteswara Iyer in Kripa Nath v. Ganga Prasad AIR 1962 Allahabad. There, Srivastava, J. speaking for a Division Bench of the Allahabad High Court said that vesting of a property in the Court or the receiver not only gives the Court or the receiver the right to take possession of the property and deal with it in a certain manner but amounts to a legal transfer of the right, title and interest of the insolvent in the court or the receiver as the case may be and as a result of the vesting, the property for the purpose of the Insolvency Court becomes the property of the court or the receiver and ceases to be the property of the insolvent. After the order of adjudication either the court or the receiver as the case may be, becomes owner and the insolvent is divested of his rights with respect to the property under adjudication. This would indicate that even if the receiver is not appointed for administration it would be necessary to implead the court or the Officer as the case may be. This decision cannot be explained in the way the petitioners counsel seek to deal with it that it is only to the effect that a secured creditor of an insolvent cannot seek to realise his claim ignoring the court or the Official Receiver in whom the property has already vested. The court is the owner and administrator once the property is vested in the court. The court is the owner and administrator once the property is vested in the court. S.28(2) of the Provincial Insolvency Act (in respect to which provisions I am quoting there are similar provisions in the Kerala Act also) reads: "(2) On the making of an order of adjudication the whole of the property of the insolvent shall vest in the court or in a receiver as hereinafter provided, and shall become divisible among the creditors, and thereafter, except as provided by this Act, no creditor whom the insolvent is indebted in respect of any debt provable under this Act shall during the pendency of the insolvency proceedings have any remedy against the property of the insolvent in respect of the debt, or commence any suit or other legal proceeding, except with the leave of the Court and on such terms as the Court may impose." S.58 states that where no receiver is appointed, the Court shall have all the rights of, and may exercise all the powers conferred on, a receiver under the Act. Under S.59 of the Act the duties and powers of receiver are enumerated which would indicate that he is in effect the owner of the estate for all practical purposes. S.60 deals with the special provisions in regard to immovable property. All these would indicate the vesting and ownership of the property in the receiver or in the court as the case may be. 14. In B. N. Rly. Employees' U. Bank v. Seager AIR 1942 Patna 307 a Division Bench of the Patna High Court consisting of Harries, C. J., and Manohar Lal, J., held that where no receiver has been appointed under S.28(2) of the Provincial Insolvency Act the future property which devolves upon the insolvent after the date of the application vests in the court. Where no receiver has been appointed and the property of the insolvent has vested in the District Judge, the provisions of S.28(2) make it imperative for an appellant creditor before the High Court to make the District Judge a party respondent to the appeal. It cannot be said that merely because the District Judge is in duty bound to carry out any orders of the High Court he should not be made a party to the appeal before High Court. It cannot be said that merely because the District Judge is in duty bound to carry out any orders of the High Court he should not be made a party to the appeal before High Court. For, the order passed by the High Court is not binding upon the estate of the insolvent unless the estate of the insolvent is represented in proceedings before it. 15. As far this case is concerned there cannot be any doubt that the property vested in the Official Receiver as such. In a case under the Provincial Insolvency Act where the order of the District Judge on the insolvency petition was as follows: "Petitioner examined. No opposition. Adjudication order passed. Referred to Official Receiver for further proceedings" a Division Bench of the Madras High Court held in Sankaranarayana v. Rajamani AIR 1924 Madras 550 that the court having passed an order of adjudication and referred the insolvency petition to the Official Receiver for further proceedings, must have intended to appoint and be deemed to have appointed the gentleman called Official Receiver as the receiver in the particular insolvency. The proceedings referred to in the District Judge's order must not be read as meaning judicial proceedings only. Even the revision petitioners state that the property vests in the receiver. The fact that the receiver was not a party in the Trial Court will not matter because the order that is passed by the Insolvency Court ensures to the benefit of several creditors who are represented by the Official Receiver. The property become vested in the Official Receiver; that can be got rid of only if he is made a party. 16. In regard to the question relating to the nature of vesting the joint family assets in the Official Receiver when the managing member of the family is adjudicated insolvent, it is not necessary for me to go into that matter in detail in view of the fact that the persons who are really aggrieved by the order have not questioned it. On the insolvency of the manager of a joint Hindu family governed by the Mitakshara Law, whether he be the father, brother or any other coparcener, there vest in the Official Assignee or Receiver (a) the separate property of the insolvent manager and his undivided interest in the joint family property; and (b) the power which the manager of a joint Hindu family has to alienate the entire joint family property including the interests of the minor coparceners for debts incurred for the benefit of the family. No doubt, there is some difference of opinion as laid down in various decisions, whether the power of the manager to sell family property for joint debts will be vested in the Official Receiver under S.52(2) of the Presidency Town Insolvency Act or the provisions in the Provincial Insolvency Act. A Full Bench of the Madras High Court in Ramasastrulu v. Balakrishna Rao AIR 1942 Madras 682 dealing with the case under the Provincial Insolvency Act overruling the earlier decision of that Court said: "In a joint Hindu Family the powers of a fathers manager are greater than the powers of a manager who is not the father of the other coparceners because the father has power not only to sell family property in order to discharge a family liability, but also the right to sell his sons' interest in the family estate to discharge his own personal debts, provided that they have not been incurred for any immoral or illegal purposes. Since the father's power to dispose of his son's property is not property within the meaning of S.2(d) and 28, the right of manager who is not the father of the other coparceners to sell family assets to discharge debts which are payable out of the joint estate cannot be property within the meaning of S.2(d) and 28 and therefore cannot vest in the Official Receiver on the insolvency of the manager." Leach, C. J., speaking for the Bench referred to the decisions of the Privy Council in Sat Narain v. Behari Lal AIR 1925 PC 18 and Sat Narain v. Sri Kishen Das AIR 1936 PC 277 . In the first decision the Privy Council held that when a Hindu father is adjudicated an insolvent under the Presidency Towns Insolvency Act, the property which he and his sons possess jointly does not vest in the Official Assignee, although under S.52(2) of the Act, or in some other way the property may be made available for the payment of his lawful debts. Having stated that they were satisfied that it was not the intention of the Act that on the insolvency of a father the joint property of his family should vest in the Official Assignee, their Lordships proceeded to sum up the position as follows: "It may be that under the provisions of S.52 or in some other way that property may in a proper case be made available for payment of the father's 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." In the second of the ceases, their Lordships of the Privy Council made it quite clear that the vesting section was S.52 and that section alone. Apart from S.52 there is no provision in the Presidency Towns Insolvency Act which enables the Official Assignee to sell joint family property to meet joint family debts when the manager has been adjudicated insolvent. In the earlier Madras decision in Bala Venkata Seetarama Chettiar v. Official Receiver, Tanjore AIR 1926 Madras 994 which was decided by a Full Bench of that Court consisting of Krishnan, Ramesam and Venkatasubba Rao, JJ., the majority Krishnan and Ramesam, JJ., held that the father's power to sell his son's shares for his proper debts vested in the Official Receiver when the father was adjudicated under the Provincial Insolvency Act by virtue of the Provisions of S.28. They regarded the power as property within the meaning of that section, but not as property under S.2(d) of the Act. Venkatasubba Rao, J., on the other hand held that it was property even within the meaning of S.(2)(d). The latter Madras Full Bench (AIR 1942 Madras 682) differed with this decision both with the majority view and the minority view. According to them, under the Provincial Insolvency Act the manager's power to sell does not vest in the Official Receiver. Venkatasubba Rao, J., on the other hand held that it was property even within the meaning of S.(2)(d). The latter Madras Full Bench (AIR 1942 Madras 682) differed with this decision both with the majority view and the minority view. According to them, under the Provincial Insolvency Act the manager's power to sell does not vest in the Official Receiver. Under that Act, it can only vest if the power is regarded as property, and in the light of the Privy Council decisions with regard to the effect of S.2(e) and S.17 of the Presidency Towns Insolvency Act, the power cannot be regarded as property. It may be noted that according to Leach, C. J., the power of a manager who is not the father of the other coparceners to sell family assets to meet a family liability is not a power which he can exercise for his exclusive benefit. After the decision of the Madras High Court there has been amendment of the Provincial Insolvency Act by the inclusion of S.28(A) which came into force on 12th April 1948. This provision read as follows: "The property of the insolvent shall comprise and shall always be deemed to have comprised also 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." On the basis of this provision in Nageswaraswami v. Viswasundara AIR 1953 SC 370 . B. K. Mukherjea, J. speaking for a Bench consisting of himself, Mahajan, Ghulam Hasan and Bhagawati, JJ., said: 'The first point raised by the learned counsel, in our opinion, is well founded and must succeed. There was some difference of judicial opinion as to whether the powers of a father under the Mitakshara Law to alienate the joint family property including the interest of his sons in the same for discharge of an antecedent debt not contracted for illegal or immoral purposes vests in the receiver on the adjudication of the father as an insolvent. Under the Presidency Towns Insolvency Act, this power has held to vest in the Official Assignee under S.52(2) of the Act 'Sat Narain v. Sri. Kishen Das', ( AIR 1936 PC 277 ). Under the Presidency Towns Insolvency Act, this power has held to vest in the Official Assignee under S.52(2) of the Act 'Sat Narain v. Sri. Kishen Das', ( AIR 1936 PC 277 ). As regards cases governed by Provincial Insolvency Act, it was held by a Full Bench of the Madras High Court that the father's power to dispose of his son's interest in the joint family property for satisfaction of his untainted debts was not "property' within the meaning of S.28(2)(d), Provincial Insolvency Act 'Ramasastrulu v. Balakrishna Rao', [AIR 1948 Madras 682 (FB)] while a contrary view was taken by a Full Bench of the Patna High Court - 'Vide Bishwanath v. Official Receiver', [AIR 1937 Patna 185 (FB)]. The conflict has now been set at rest by the enactment of S.28(A) in the Provincial Insolvency Amendment Act of 1948 which came into force on 12th April 1948. The new section reads as follows: 'The property of the insolvent shall comprise and shall always be deemed to have comprised also 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.' The language of the section indicates that its operation has been expressly made retrospective. The result, therefore, is that the power of defendant 1 to alienate the interest of his sons, defendants 2 and 3, in the mortgaged properties for satisfaction on 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." (S.28A of the Provincial Insolvency Act corresponds to S.29 of the Kerala Act.) In Venkata Reddy v. Pethi Reddy AIR 1963 SC 992 it was said that upon the father's insolvency his disposing Dower over the interest of his undivided sons in the joint family property vests in the Official Receiver and that consequently the latter has a right to sell that interest. 17. But in this case the question arises whether in the case of a trading family especially when the trade is banking what would be the position. Mr. 17. But in this case the question arises whether in the case of a trading family especially when the trade is banking what would be the position. Mr. Venkiteswara Iyer contends that every debt in such a case should be a trade debt and there would be no question of its non binding character. The very business of the family is borrowing money to lend at higher rates of interest. So there would be no question of failure of necessity for the debts. In the case of the father, the question whether his debts are illegal or immoral and so not binding on the share of the sons may arise. In the case of a non trading family the question whether the debt of the manager is for legal necessity or benefit will arise. Mr. Venkiteswara Iyer contends that no such question would arise in the case of a banking trading family in the nature of its very business. So the capacity of such a manager to discharge the debts without any fetter on his powers will vest in the receiver under S.29 of the Act. The exercise of that power is for his own benefit as he is entitled to be reimbursed by the family if he discharges it with his own funds. 18. In Bhojraj v. Thakurdas AIR 1940 Sind 141 a Division Bench held that a Hindu joint family firm can be adjudicated insolvent. The disposing power exercisable by the manager of a joint family business is not other than a power which he may exercise for his own benefit within the meaning of S.2(d) and hence, on the insolvency of the joint family firm and of the manager, the manager's power of disposal over the joint family property including the share of the minor for payment of the debts of the joint family business shall also vest in the receiver. 19. 19. In Official Receiver, Anantapur v. Ramachandrappa AIR 1929 Madras 166 it was held as per the decision of Devadoss, J., agreeing with Odgers, J., in a difference between Odgers and Curgeneven, JJ., that in a Hindu joint trading family where there are one or more minor members and the manager is not the father and the adult members including the manager have been adjudicated insolvents, the power of the manager to dispose of the joint family property for debts incurred for trading purposes pass to and become exercisable by the Official Receiver so as to bind the minor's shares. This decision was not accepted by the Madras High Court in Ramasastrulu v. Balakrishna Rao AIR 1942 Madras 682. But Mr. Venkiteswara Iyer would contend that in view of the amendment to the Provincial Insolvency Act and because of S.29 of our Act the position is now as laid down in the decision in this case. Any how we need not go into that question in view of the fact that the persons aggrieved have not approached this Court. 20. I would deal with the contention based on the Kerala Joint Hindu family System (Abolition) Act (Act 30 of 1976). The Insolvency Petition was on 30th July 1976. S.5(2) of Act 30 of 1976 saves the debts contracted before the Act from the operation of the Act. S.6 saves debts contracted before the Act. In Raghavan v. Ayyappan Pillai 1979 KLT 15 it has been laid down that S.5 and 6 preserve the existing liabilities. The administration of the assets of the joint family through the receiver under S.29 of the Insolvency Act is a right and remedy available to the creditors which is not affected by the Act. It is contended by the learned counsel for the petitioners that S.6 of the Act saves only debts binding on a joint family and contracted before the commencement of the Act. In view of the finding of the court that the 1st respondent alone is personally liable and that the other members of the family are not liable for the debts it is contended that it is clear that the debts are not binding on the joint family and hence S.6 is not attracted. The court below held that Act 30 of 1976 has no impact in this case. The court below held that Act 30 of 1976 has no impact in this case. On the other hand, it takes notice of the fact that the members of the family do not contend that debts are not binding on the family. A contention was also raised based on S.4 of the Kerala Insolvency Act that the Insolvency Court has to decide questions of title, liability of the other members of the joint family, priority of payments, etc. There cannot be any dispute in regard to that. In regard to the liability of the other members of the joint family, none of the members of the joint family contend that debts are not binding on the family. I find no merit in the contentions raised by the petitioners. Apart from all that I am not able to understand, as rightly pointed out by Mr. T. S. Venkiteswara Iyer, how the petitioners would gain an advantage by a modification of the order. If the petitioners proceed against the share of the defendants against whom they have obtained a decree, Official Receiver who is the owner of the share of the insolvent, and his sons can at once claim that the sale proceeds of any property sold has to be distributed among all the creditors because all debts are binding on all the properties including the share of the defendants in the suit filed by the petitioners. That the Receiver has such power exercisable for the benefit of all creditors is laid down in Ramachandra v. Official Assignee AIR 1931 Madras 317. In Re Official Assignee AIR 1965 Madras 60, Venku Reddi v. Venku Reddi AIR 1927 Madras 471 and S. Jaganmohan Rao v. U. Babu Rao AIR 1975 278 (FB). As the learned counsel for the respondents put it, modification of the order at this stage will not only create difficulties for all the persons concerned but will result in disastrous consequences. 21. It may also be noted that Narasimha Financing Company is a partnership firm, even according to the petitioners, in which deceased father Venkatasubramania Iyer, deceased elder brother Narasimhan and the present 1st respondent, Subramanian the insolvent were alone partners. Venkatasubramania Iyer and Narasimhan are dead and the insolvent is the sole surviving partner. He is now adjudged insolvent. Under S.42(D) of the Partnership Act, the firm is dissolved. Venkatasubramania Iyer and Narasimhan are dead and the insolvent is the sole surviving partner. He is now adjudged insolvent. Under S.42(D) of the Partnership Act, the firm is dissolved. The surviving partner's right to wind up the dissolved firm by discharge of debts vests in the Official Receiver. In Administrator General of Madras v. Official Assignee of Madras ILR 32 Madras 462 it is held that on the death of a partner, the partnership is dissolved under S.253(10) of the Indian Contract Act and under S.263, the rights and obligations of the partners continue in all things necessary for the winding up of the partnership business. It becomes therefore the duty of the surviving partner to wind up the partnership; and as between such partner and the representative of the deceased partner, the former has, by virtue of this overriding duty, the power, if necessary, for the purposes of winding up the partnership business, to continue the business, to borrow moneys or to sell the partnership assets, real or personal. On the insolvency of the surviving partner, the interest of the insolvent in the partnership vests in Official Assignee, under S.7 of the Indian Insolvency Act, subject to the obligation of the surviving partner to wind up the partnership. The rights incidental to such obligation, i.e., the right to realise the partnership assets and do all things necessary to wind up the partnership also vest in the Official Assignee. The right and obligation of the insolvent as surviving partner can be made available for the benefit of the firm in the insolvency proceedings under the vesting order and it is not necessary for the Official Assignee to institute a suit against the representative of the deceased partner for winding up the partnership. This is based on the following principle of law stated by Lindley on partnership at page 745. "If there is only one partner living in this country, his copartners being either dead or abroad, and he becomes bankrupt, the trustee in that case winds up the affairs of the partnership as well as the private affairs of the bankrupt." 22. The Legal Representatives of the deceased partners have no right in any item of property as such. Their right is only to share in the surplus money, if any, after discharge of debts. (See Narayanappa v. Bhaskara Krishnappa) AIR 1966 SC 1300 at 1304. 23. The Legal Representatives of the deceased partners have no right in any item of property as such. Their right is only to share in the surplus money, if any, after discharge of debts. (See Narayanappa v. Bhaskara Krishnappa) AIR 1966 SC 1300 at 1304. 23. In the light of the above discussion, I see no reason to interfere in the matter. I dismiss these Civil Revision Petitions. However, I make no order as to costs in the circumstances of the case. I may express my gratitude to counsel on both sides who have placed the relevant case law on the matter before me.