S. Arumugham v. C. K. Venugopal Chettiar — 1986 DIGILAW 355 (MAD)

Judgment :- SINGARAVELU, J. 1. The plaintiffs and the 2nd defendant are the appellants while defendants 3 to 5 are the Cross-Objectors. The plaintiffs, who are brothers, filed the suit C.S. No. 107 of 1970 for partition and separate possession of their 2/15th share in the suit propertis and for accounting of the family business from defendants 3 and 4. 2. The averments in the plaint are briefly as follows:— The plaintiffs and defendants 6 and 7 are the sons of the 2nd defendant C. Shanmugham Chettiar. Defendants 3 and 4 are the brothers of the 2nd defendant and they are the sons of one Kothandarama Chettiar, who died in 1970 leaving his widow the 1st defendant Valliammal. The 5th defendant is the son of the 3rd defendant. The plaintiffs and the defendants belonged to a trading family at Madras started by the great grand-father late Egappa Chettiar, who died in about 1920 leaving two sons Kannimuthu Chettiar and Kothandarama Chettiar the plaintiffs and the defendants belonging to Kothandarama Chettiar branch. 3. The plaintiffs and the defendants were members of a Hindu joint family and there was no division of the assets of the family business. The plaintiffs grandfather, Kothandaraman Chettiar died in 1970 whereupon his two younger sons, defendants 3 and 4, assumed charge of the family business excluding their another brother viz., the 2nd defendant and his sons. The business was very prosperous and the family properties are described in the plaint schedules. Defendants 3 and 4, who are in management of the family business, have developed hostile attitude and are acting contrary to the interest of the 2nd defendant and his sons. Hence the suit for partition. The plaintiffs and defendants 6 and 7 are each entitled to 1/5th share. Since the 1st defendant, widow of Kothandarama Chettiar, died during the pendency of the suit, the plaintiffs and defendants 2, 6 and 7 are each entitled to 1/5th share in the suit properties. Defendants 3 and 4, who are in management, are liable to render an account of the assets of the family business as also the rental income from the properties. 4. The 2nd defendant, who is the father of the plaintiffs, and his other sons defendants 6 and 7, sailed with the plaintiffs. Defendants 3 and 4, who are in management, are liable to render an account of the assets of the family business as also the rental income from the properties. 4. The 2nd defendant, who is the father of the plaintiffs, and his other sons defendants 6 and 7, sailed with the plaintiffs. Defendants 3 to 5 are the contesting defendants and they have filed a written statement as follows:— The geneology set up in the plaint is not complete and certain material facts like the prior proceedings in Court have been deliberately suppressed. Subramania Chetty, son of Kannimuthu Chetty (who is one of the sons of late Egappa Chettiar) filed a suit in C.S. No. 236 of 1934 on t he file of this Court for partition of his 1/4th share in the family properties. Final decree was passed in that suit on 3.1.1939. Subsequently, by a deed of partition dated 17.5.1939, Kannimuthu Chettiar (brother of Kothandarama Chettiar and grand-father of the plaintiffs) got himself separated from Kothandarama Chettiar and his sons, defendants 2 to 4. 5. In about 1932, the 2nd defendants viz., the father of the plaintiffs, started a business of his own under the name of C. Shanmugham and Co., and it was his sole and exclusive business. In about 1944, the 2nd defendant started another business of his own in metal scraps in partnership with a third party one A. Appadurai Mudaliar, but huge loss was incurred in that business and a creditor of the firm filed I.P. No. 30 of 1946 on the file of this Court for adjudicating the 2nd defendant herein and A. Appadurai Mudaliar as insolvents. An order of adjudication was passed on 4.11.1946 and the estate of the 2nd defendent vested with the Official Assignees. On account of the said adjudication and the vesting, a division in status was effected and the 2nd defendant and his four sons including the plaintiffs ceased to be coparceners of joint family and they lost all their rights in the family properties. Therefore, the present suit by the plaintiffs for partition is not maintainable. 6. After the said adjudication, Kothandarama Chettiar and defendants 3 and 4, who were entitled to 3/4th share in the family properties, wanted to preserve the 1/4th share of the 2nd defendant from court auction sale by the Official Assignee. Therefore, the present suit by the plaintiffs for partition is not maintainable. 6. After the said adjudication, Kothandarama Chettiar and defendants 3 and 4, who were entitled to 3/4th share in the family properties, wanted to preserve the 1/4th share of the 2nd defendant from court auction sale by the Official Assignee. Therefore, a composition scheme was arranged by defendants 3 and 4 and their father, under which all the creditors of the insolvents agreed to receive six annas in the rupee. The amount required for payment at six annas in the rupee was Rs. 65,000/- but the assets of the insolvents including the stock-in-trade, outstandings, etc., were worth about Rs. 25,000/- only. Therefore, defendants 3 and 4 and their father Kothandarama Chettiar approached Madura Mercantile Bank Limited to pay Rs. 65,000 to the Official Assignee and get an assignment of all the assets of the insolvents. The said bank agreed to this arrangement and they appointed their nominee one Ganapathi Chetty, a constituent of the bank. Accordingly, the bank took a promissory note for Rs. 17,500/- from defendants 3 and 4 and their father in the name of the nominee Ganapathi Chetty and paid the sum of Rs. 65,000/- to the Official Assignee through Ganapathi Chetty. Thereupon, the adjudication was annulled by the Court by order dated 2.9.1947 and the Official Assignee was directed to convey all the assets of the insolvents in favour of the said Ganapathi Chetty. Accordingly, the Official Assignee assigned all the assets of the insolvents including the 1/4th share of the 2nd defendant in the joint family properties to Ganapathi Chetty. The said bank sold the stock-in-trade and realised the dues of the insolvents. 7. The share of the 2nd defendant/insolvent in the joint family properties alone remained and Ganapathi Chetty filed O.S. No. 359 of 1950 on the file of this court against defendants 3 and 4 and their father for recovery of the amount due under the promissory note for Rs. 17,500/-, Defendants 3 and 4 disputed their liability under the promissory note and meanwhile Madura Mercantile Bank Ltd., went into liquidation and was directed to be wound up in O.P. No. 126 of 1953. The Liquidators of the bank continued the suit and obtained a decree against defendants 3 and 4 and their father for a sum of Rs. 6,876-65. 17,500/-, Defendants 3 and 4 disputed their liability under the promissory note and meanwhile Madura Mercantile Bank Ltd., went into liquidation and was directed to be wound up in O.P. No. 126 of 1953. The Liquidators of the bank continued the suit and obtained a decree against defendants 3 and 4 and their father for a sum of Rs. 6,876-65. The decree amount was paid by defendants 3 and 4 and their father to the bank. Thus by paying the decree amount, defendants 3 and 4 and their father had paid the entire sum of Rs. 65,000/- to the Official Assignee. Consequently, the 1/4th share of the 2nd defendant in the joint family properties, which vested with the Official Assignee, was conveyed to Ganapathi Chetty and later to the Liquidator of the bank. The Liquidator filed Application No. 1643 of 1959 in O.P. No. 26 of 1953 claiming partition and separate possession of the 1/4th share of the 2nd defendant. This Court directed the Liquidator to file a suit for partition of the said share. Subsequently, on payment of a further sum of Rs. 2,500/- by defendants 3 and 4 to the Liquidator in full settlement of the claim of the bank for the 1/4th share of the 2nd defendant, this Court sanctioned a compromise on 26.11.1962 under which defendants 3 and 4 and their father acquired the 1/4th share of the 2nd defendant and his sons. Thus, defendants 3 and 4 and their father, who are owners of 3/4th share, became entitled to the entirety of the joint family property. Neither the plaintiffs nor their father the 2nd defendant nor defendants 6 and 7 can claim any right or share in the suit property. 8. The 2nd defendent and his branch were having separate mess even prior to the adjudication but when the 3nd defendant became a widower, the father of the defendants 3 and 4 maintained him out of love and affection towards his brother. The branch of the 2nd defendant became impecunious on the adjudication and the plaintiffs were eking out their livelihood by working as Clerks here and there. Now, the 2nd defendant father has set up his sons to file this suit for partition, which is devoid of merits. 9. The branch of the 2nd defendant became impecunious on the adjudication and the plaintiffs were eking out their livelihood by working as Clerks here and there. Now, the 2nd defendant father has set up his sons to file this suit for partition, which is devoid of merits. 9. The 1st defendant, who is the widow of Kothandarama Chettiar and mother of the 2nd defendant, filed a separate written statement contending that the plaintiffs have no right in the suit property. 10. On these contentions, the parties went to trial. The learned single Judge (N.S. Ramaswami, J.) passed a preliminary decrees for partition of plaint items 1 and 2 in A Schedule, fixing the share of the plaintiffs as 3/48 each and dismissed the suit in respect of accounting of the business Egappa Chetty and Sons. The plaintiffs and the 2nd defendant are aggrieved by the judgment and they have come forward with the appeal. Defendants 3 to 5 have filed the Memorandum of Cross-Objections contending that the decree passed by the learned single Judge for partition in respect of plaint a Schedule items 1 and 2 is totally unjustified since the title of the insolvent/2nd defendant and his sons became extinct and it cannot reinvest under any circumstance. 11. The following geneology, which is not in dispute, is extracted for appreciation of the case. 12. A few facts which are not in controversy may be stated for appreciation of the points in dispute. The great-grand-father of the plaintifs viz., Egappa Chetty died in 1920 leaving two sons Kothandarama Chetty and Kannimuthu Chetty. Kannimuthu Chetty got himself separated from the family in 1941 and therefore we are not concerned with his branch. The parties herein belonging to Kothandarama Chetts branch. The 2nd defendant is Kothandarama Chettys branch. The 2nd defendant is the eldest son of Kothandarama Chetty and elder brother of defendants 3 and 4. He started a business in partnership with a third party under the name and style of C. Shanmugham and Co. Again, in about 1944, the 2nd defendant started another business of his own in metal scraps in partnership with a third party Appadurai. Since the 2nd defendants business ended in huge loss, one of the 42 creditors filed I.P. No. 30 of 1946 for adjudicating the 2nd defendant and Appadurai as insolvents and they were declared as insolvents on 4.11.1946. Again, in about 1944, the 2nd defendant started another business of his own in metal scraps in partnership with a third party Appadurai. Since the 2nd defendants business ended in huge loss, one of the 42 creditors filed I.P. No. 30 of 1946 for adjudicating the 2nd defendant and Appadurai as insolvents and they were declared as insolvents on 4.11.1946. The estate of the 2nd defendant including his 1/4th share in the joint family properties consisting of himself, his father Kothandaraman and his brothers defendants 3 and 4, vested with the Official Assignee. Defendants 3 and 4 did not want to let down their elder brother and therefore arranged for a composition scheme for paying 6 Annas in the rupee and it came to Rs. 65,000/-. The said composition scheme was approved by this Court on 7.4.1947. Defendants 3 and 4 and their father arranged with the Madura Mercantile Bank to pay the sum of Rs. 65,000/- and got assignment of the assets of the insolvent/2nd defendant. The bank loan was advanced through the banks nominee Ganapathi Chetty, who was the nominal guarantor in the scheme of composition. In pursuance of the composition scheme the guarantor paid the amount of Rs. 65,000. In Application No. 211 of 1947 in I.P. No. 30 of 1946, the Court accepted the composition and annulled the adjudication-vide Ex. D-7. In that order, the learned Judge Clark, J., directed the Official Assignee to transfer to the guarantor Ganapathi Chetty the assets of the insolvent that are in excess. In pursuance of the above order of Court. The Official Assignee executed Ex. D-8 in favour of Ganapathi Chetty conveying “all the right, title and interest of the insolvent” in the properties described in the schedule to the document Ex. D-8. 13. Ganapathi Chetty, the guarantor, who was ultimately held to be a benamidar for Madura Mercantile Bank Ltd., when went into liquidation filed C.S. No. 59 of 1950 on the file of this Court on the basis of the promissory note dated 27.4.1947 for Rs. 17,500/- executed by defendants 3 and 4 as well as their father Kothandarama Chetty. The Official Liquidators (Madura Merchantile Bank Ltd., being under liquidation) were originally impleaded as defendants in that suit but later transposed as 2nd plaintiff. Defendants 3 and 4 and their father contended in that suit that the promissory note for Rs,. 17,500/- executed by defendants 3 and 4 as well as their father Kothandarama Chetty. The Official Liquidators (Madura Merchantile Bank Ltd., being under liquidation) were originally impleaded as defendants in that suit but later transposed as 2nd plaintiff. Defendants 3 and 4 and their father contended in that suit that the promissory note for Rs,. 17,500/- came to be executed only as security in order to make up the deficiency if any, on the realisation of the assets of the insolvent, which contention was accepted by the Court and therefore the direction was that an account should be taken regarding the actual amount due to the said Ganapathi Chetty. Ultimately it was found that under the promissory note only a sum of Rs. 6,876-68 was due from defendants 3 and 4 and their father. The said amount was paid to the Joint Official Liquidator as per Ex. D-11 dated 22.2.1960. 14. Ganapathi Chetty, who got Ex. D-8 from the Official Assignee, had not executed any document in favour of the Official Liquidators (Madura Mercantile Bank Ltd.) in liquidation in spite of the fact that he had been held to be a benamidar for the said bank. Therefore, the Official Liquidators moved the Company Court in Application No. 1643 of 1959 in O.P. No. 126 of 1953 for a direction that the present defendants 3 and 4 and their father should convey the share of Shanmugham Chetty and if they failed to do so, to pass a decree for partition and separate possession of Shanmugham Chettys share. There was also an alternative prayer that the Official Assignee, who had also been impleaded in that application, be directed to convey the share of Shanmugham Chetty to the Official Liquaidators. This application came to be heard by Ramachandra Iyer, J., as he then was, and by order dated 1.7.1960 (Ex. D-12), the learned Judge held that the ostensible title of Ganapathi Chetty to the share of Shanmugham Chetty had been perfected by the deeds already executed by the Official Assignee in favour of Ganapathi Chetty and that therefore it was unnecessary for the Official Assignee to execute another sale deed. It was further held that the prayer for partition and separate possession asked for in the application by the Official Liquidators cannot be granted. It was further held that the prayer for partition and separate possession asked for in the application by the Official Liquidators cannot be granted. The learned Judge directed that the Official liquidators can obtain an assignment from Ganapathi Chetty and then file an appropriate action for enforcing their claim to the share of Shanmugham Chetty. After the above order, Ganapathi Chetty did convey an 1/4th share as belonging to Shanmugham Chetty in the joint family properties under Ex. D-24 dated 9.8.1962. 15. Against the judgment of the learned Judge sitting on the Original side decreeing only a sum of Rs. 6,876-68, as the amount due on the promissory note, the Official Liquidators had filed an Original Side Appeal, while defendants 3 and 4 and their father had filed Cross-Objections. The Official Liquidator moved the Company Court in Application No. 245 of 1962 in O.P. No. 126 of 1953 for a composition. Veeraswami, J., as he then was, by order dated 26.11.1968 (Ex. D-17) approved the composition by which the Official Liquidators were to receive a sum of Rs. 2,500/- in full quit of their claim in respect of the abovesaid 1/4th share in the joint family properties. Defendants 3 and 4 and their father paid the said sum on 23.11.1962 and Ex. D-16 is the receipt. On such payment, the composition came to be approved by order Ex. D- 17 dated 26.11.1962. After having acquired the 1/4th share of Shanmugham Chettys branch in the joint family assets, defendants 3 and 4 and their father entered into a partnership arrangement as per Ex. D-23 dated 25.4.1984 in respect of the business “Egappa Chettiar & Sons.” Since then, the business was being carried on as a partnership concern between defendants 3 and 4 and their father. The father Kothandarama Chetty died on 30.5.1970. Hence the partnership was reconstituted on 12.10.1970 under which defendants 3 to 5 became partners in the said business. 16. Now, it is strenously contended on behalf of the appellants/plaintiffs that more adjudication as an insolvent will not serve the joint family status and that the status of co-parcener is not taken away by the fact of adjudication. In other words, it is argued that the father/2nd defendant continued to be a member of the joint family and that the property became revested with the debtor on the annulment of the adjudication. In other words, it is argued that the father/2nd defendant continued to be a member of the joint family and that the property became revested with the debtor on the annulment of the adjudication. As against this, it is contended on behalf of the contesting defendants that the 1/4th share of the 2nd defendant and his sons (plaintiffs and defendants 6 and 7) is no longer available to them since the said share had been duly conveyed by the Official Assignee as per orders of Court. On these contentions, the foremost question to be decided is, what is the effect of the order of annulment passed by Clark, J., on 2.9.1947 in I.P. No. 30 of 1946 (Ex. D-7). 17. It is plain that, under this order, the learned Judge approved the composition and annulled adjudication, but that does not ipso facto follow that the properties reverted back to the insolvent on the annulment of adjudication. In Ex. D-7 order, Clark, J., directed the Official Assignee to transfer to the guarantor “the assets of the insolvent that are in excess.” Therefore, the properties which had originally vested with the Official Assignee on adjudication would continue to vest with him for the purpose of transferring the same to the guarantor. The learned single Judge (N.S. Ramaswami, J.) rightly held, in our opinion, that the order of the learned Judge (Clark, J.) in Ex. D- 7 should not be dissected out of context and that it should be read as a whole. The gurantor had parted with an appreciable sum of Rs. 65,000/- for the purpose of composition and consequent annulment and therefore the Court had every right and jurisdiction to direct the Official Assignee to trnasfer to the guarantor the “assets of the insolvent that are in excess.” It is quite proper that the Official Assignee conveyed the insolvents interest including his 1 /4th share in the joint family property to Ganapathi Chetty. Thus, the 2nd defendants 1/4th share in the joint family property had been transferred or alienated, so to say, and there remains nothing for the plaintiffs to claim any share. In other words, there cannot be any revesting on annulment. Thus, the 2nd defendants 1/4th share in the joint family property had been transferred or alienated, so to say, and there remains nothing for the plaintiffs to claim any share. In other words, there cannot be any revesting on annulment. In respect of the 1/4th share of the 2nd defendants branch since it has lost its legal status to claim the same, that is to say, the 2nd defendants share has gone out of the family and is no longer available for the 2nd defendant and his sons. In this connection, the conduct of the 2nd defendant is also very important. The 2nd defendant-father, who became an insolvent in 1946, lived for about 30 years. He died only on 24.2.1979. It is very significant to note that the 2nd defendant himself never claimed any right or interest in respect of his 1/4th share. The conduct fits in with the conclusion that there was no revesting of the estate on annulment. 18. The next point of dispute between the parties is with reference to Ex. D-8 dated 16.9.1947 and it is an unregistered document by the Official Assignee assigning the 2nd defendants share to the guarantor. Learned counsel for the appellants argued that what was assigned was only a right to sue for partition and nothing more. It is further contended that the Official Liquidator filed Application No. 1643 of 1959 for partition of the 2nd defendants share but that was dismissed with a direction that he could take an assignment from Ganapathi Chetty and then file a suit for partition. It is therefore argued that since no further suit was filed by the Official Liquidator, the joint family status of the 2nd defendant continued and that his share had not gone out of the estate. It was further argued that Ex. D-8 is an unregistered document and that it has no legal effect at all. We have carefully considered these arguments, out we regret we are unable to agree. Ex. D-8 was executed by the Official Assignee under orders of Court dated 2.9.1947. Under Ex. D-7 the learned Company Judge permitted the Official Assignee to transfer to the guarantor the assets of the insolvent that are in excess. We have carefully considered these arguments, out we regret we are unable to agree. Ex. D-8 was executed by the Official Assignee under orders of Court dated 2.9.1947. Under Ex. D-7 the learned Company Judge permitted the Official Assignee to transfer to the guarantor the assets of the insolvent that are in excess. Being a transfer by order of Court, the document does not require registration under S. 54 of the Transfer of Property Act since S. 2(d) of the Transfer of Property Act says that nothing in the Transfer of Property Act (except S. 57 and Chapter IV) applies to transfers by orders of Court. We are of opinion that the document in question does not require registration and that there was a valid conveyance of the 2nd defendants 1/4th share to Ganapathi Chetty. From Ganapathi Chetty the said 1/4th share passed on successively until it vested with the Official Liquidator. Further, a valid registered document was also executed under Ex. D-24 on 9.8.1962 affirming the title of the Official Liquidator to the 1/4th share of the 2nd defendant. Thereafter, the Official Liquidator sought to recover its 1/4th share from the other non-alienating co-parceners by taking out applications in the Company Petition. Pursuant to the orders passed by Ramachandra Iyer, J., as he then was, and Veeraswami, J., as he then was, the Official Liquidator received a sum of Rs. 2,500/- in lieu of the 1/4th share of the 2nd defendant. Thus, defendants 3 and 4 and their father, who are already owners of the 3/4th share, became entitled to the entirety of the joint family properties, more so, when the insolvent/2nd defendants share had gone out of the estate. It must be remembered that this alienation of the 1/4th share of the insolvent was made as early as 1947 and the plaintiffs, who are after born sons, are not entitled to claim any share as members of joint family through the 2nd defendant. We have already found that on adjudication the insolvent ceased to have any interest in the property and his legal status is made clear under the provisions of the Presidency Towns Insolvency Act. S. 17 of the said Act says that on adjudication, the insolvents property vests with the Official Assignee and became divisible among his creditors. We have already found that on adjudication the insolvent ceased to have any interest in the property and his legal status is made clear under the provisions of the Presidency Towns Insolvency Act. S. 17 of the said Act says that on adjudication, the insolvents property vests with the Official Assignee and became divisible among his creditors. S. 2(a) of the said Act defines ‘property’ and S. 52(2)(b) of the said Act states that the property of an insolvent includes the capacity to sell sons share. Again, S. 30 of the said Act says that if the Court approves the scheme of composition, an order annulling the adjudication shall be made whereupon S. 23(1) and (3) of the said Act will apply. Under the said Section, the property of the debtor shall vest in such person as the Court may appoint and in default revert to the debtor. 19. For this conclusion, we refer to the following rulings. In Minor Kandaswami Pillai v. T.N.C. Kandaswami Pillai (AIR 1947 Madras 372 = 1947(I) M.L.J. 203 = 60 L.W. 200 it is stated that, on adjudication of a Hindu father, the property vested in the Official Receiver, passes out of the hands of the insolvent, and if, in the order of annulment there is an order continuing the vesting of the property in the Official Receiver, the effect is to make him the legal owner of the property with the result, the insolvent had at no time, any legal interest in the property after the date of adjudication. On this reasoning, it was held that the insolvents two sons could not have acquired any right to the property and therefore cannot claim partition. In Kolaparthi Venkatasubbiah v. Madallapalli Venkatasubbiah (AIR 1942 Madras 371 = 1942 M.W.N. 114) there was no order reverting the property to the insolvent on the annulment of adjudication. It was held that the property vested with the Official Receiver when the order of adjudication was made and it had not yet reverted because, reverting was prevented by the vesting order under S. 37. It was held that the property vested with the Official Receiver when the order of adjudication was made and it had not yet reverted because, reverting was prevented by the vesting order under S. 37. The other cases cited on behalf of the respondents are reported in G.P. Janammal alias Janaki Ammal v. C.M. Ranganathan ( 1972(II) M.L.J. 571 = 86 L.W. 552 and S. Hari Rao v. Official Assignee, High Court, Madras (50 M.L.J. 358 (FB), and they are to the effect that the insolvent has, after adjudication, no legal interest in his estate which vests with the Official Assignee and therefore, he has no legal right to interfere in the realisation of the estate by the Official Assignee. Relying upon these decisions, we hold that in the case before us, there was no revesting of the property in the insolvent but only with the appointee of the Court and therefore the title, which was originally lost on adjudication is not revived and that the Official Assignee and his alienees continued to be the legal owners. As already stated, under Ex. D-7, Clark, J., sitting in the Insolvency Court, has vested the property in Ganapathi Chetty by directing the Official Assignee to execute a conveyance and therefore there cannot be any reversion of the estate to the insolvent-2nd defendant. Therefore, we are unable to accept the argument of the learned counsel for the appellants that a mere right to sue alone was transferred by the Official Assignee to Ganapathi Chetty and his assignees and nothing more. It is important to note that in Ex. D-4 viz., the inventory list, the insolvent-2nd defendants share in the assets of the joint family has been described as one of the items vested with the Official Assignee. Again, in the agreement Ex. D-6, one of the items conveyed is a right of the 2nd defendant-insolvent in the joint family property. Above all, the conveyance Ex. D-8 executed by the Official Assignee to Ganapathi Chetty clearly describes in the schedule that all the right, title and interest of the insolvent passes on to Ganapathi Chetty. One of the items in the schedule is a right to recover the share of the 2nd defendant in the joint family property. 20. Learned counsel for the appellants argued that the conveyance under Ex. D-8 is not valid since it has not been registered. One of the items in the schedule is a right to recover the share of the 2nd defendant in the joint family property. 20. Learned counsel for the appellants argued that the conveyance under Ex. D-8 is not valid since it has not been registered. It was also argued that the guarantor Ganapathi Chetty himself applied to the Court for another document for the transfer of the 1/4th share of the 2nd defendant/insolvent in the joint family properties and therefore Ex. D-8 is not a deed of conveyance. It is true that in Application No. 543 of 1948 in I.P. No. 30 of 1946 Ganapathi Chetty asked for another conveyance stating that the earlier document Ex. D-8 was not registered and therefore a further document was necessary. This, according to the learned counsel for the appellants, is conclusive proof that no interest was transferred in respect of the 1/4th share of the insolvent-2nd defendant in the joint family properties. Though this argument sounds plausible, we are unable to accept the same for the following reasons. Ganapathi Chetty was held to be a benamidar for the bank in liquidation and on the application of the Official Liquidator, this Court (Ramachandra Iyer, J., as he, then was) has held that the ostensible title of Ganapathi Chetty had been perfected by the document already executed by the Official Assignee and therefore there was no need for the Official Assignee to execute another document. It follows that this Court applied its mind and confirmed the conveyance deed Ex. D-8 which had already been executed. It is also relevant to note that, as per the directions given by the learned Judge, Ganapathi Chetty executed a sale deed as per Ex. D-4 in favour of the Official Liquidator and on that basis the Official Liquidator got the composition sanctioned by the Company Court and moneys were paid by defendants 3 and 4 in full quit and saved the 1/4th share of the insolvent 2nd defendant and his sons in the joint family properties. Therefore, the position is this: S. 68(1)(a) of the Presidency Towns Insolvency Act says that no sanction of Court is necessary for the Official Assignee to transfer the property. But in this case, the Court (Clark, J.,) specifically directed the Official Assignee to transfer and convey to the guarantor the interest of the insolvent-2nd defendant. Therefore, the position is this: S. 68(1)(a) of the Presidency Towns Insolvency Act says that no sanction of Court is necessary for the Official Assignee to transfer the property. But in this case, the Court (Clark, J.,) specifically directed the Official Assignee to transfer and convey to the guarantor the interest of the insolvent-2nd defendant. Thus, the transfer/squarely comes under the second category of transfer under S. 2(d) of the Transfer of Property Act. This view is supported by the Full Bench decision of this Court reported in Pinnameni Basava Sankaram v. Ganapathi Narasimhulu (51 M.L.J. 529 = 25 L.W. 126 (FB). We are of opinion that this transfer under orders of Court is exempt from registration. In Lakshmi Devi v. Mukand Kanwar ( AIR 1965 S.C. 834 ) it was held that nothing in the Transfer of Property Act will apply to the transfers indicated therein and S. 2(d) of the Transfer of Property Act has an overriding effect and consequently S. 54 of the Act requiring registration will not apply to transfers by orders of Court. Vide also the decisions reported in Gaya Prasad v. Baij Nath (I.L.R. 14 Allahabad 176) and Wazirey v. Mathura Prasad (AIR 1939 Oudh, 55) 21. As against this, learned counsel for the appellants cited the following authorities: In Sidheswar Mukherjee v. Bhubneshwar Prasad Narain Singh (AIR 1953 S.C. 486 = 67 L.W. 1 (SC) it was held that the purchaser of an undivided share did not acquire any defined share in the property and was entitled only to joint possession from the date of his purchase. It is laid down that the purchaser could work out his right only in a suit for partition. The next decision cited at the Bar is reported in M.V.S. Manikayala Rao v. M. Narasimhaswami ( AIR 1966 S.C. 470 ) which also lays down that the right of a purchaser to an undivided share is only to sue for partition of the suit property. The decision reported in Muthukumara Sthapathiar v. Sivanarayana Pillai (AIR 1933 Madras 158 = 37 L.W. 19 was also cited. The decision reported in Abdul Hashim v. Amarkrishna Saha (53 Indian Cases 121) was also cited for the proposition that the title of the purchaser from the Official Receiver requires to be perfected by proper conveyance executed by the Official Receiver and duly registered. 22. The decision reported in Abdul Hashim v. Amarkrishna Saha (53 Indian Cases 121) was also cited for the proposition that the title of the purchaser from the Official Receiver requires to be perfected by proper conveyance executed by the Official Receiver and duly registered. 22. Having regard to the facts of the case on hand and in view of the order of the learned Judge directing the Official Assignee to convey the property, we are of opinion that the aforesaid decisions are not applicable to the facts of our case, since all the right, title and interest of the insolvent-2nd defendant in the properties were covered by the conveyance Ex. D-8. The case before us falls under category 2 of S. 54 of the Transfer of Property Act relating to registration. Category 2 relates to transfers by order of Court including transactions like the present one where the Court directs the conveyance of a property to a particular person by the Official Assignee. As already pointed out, the three kinds of transfers mentioned in S. 2(d) of the Transfer of Property Act have been formulated in the Full Bench decision reported in Pinhamameni Basava Sankaram v. Garapati Narasimhulu (51 M.L.J. 529 = 25 L.W. 126. The result is, we are unable to agree with the finding of the learned single judge that this conveyance by the Official Assignee under orders of Court requires registration. 23. Learned counsel for the appellants then argued that the partnership deed entered into between the father and defendants 3 and 4 in 1964 will not affect the share of the 2nd defendant insolvent since it is a family business and there was no division of status. The learned single judge has rejected this argument. It is important to note that the 2nd defendant himself started several businesses of his own in partnership with third parties and incurred heavy losses. Those businesses started by the 2nd defendant had nothing to do with the family. On the same reasoning, after the 2nd defendant became an insolvent and became totally ineffective, the father and the two sons started a partnership business of their own and there is no evidence on the side of the plaintiffs to show that the family assets or funds were utilised for the same. On the same reasoning, after the 2nd defendant became an insolvent and became totally ineffective, the father and the two sons started a partnership business of their own and there is no evidence on the side of the plaintiffs to show that the family assets or funds were utilised for the same. The burden of proof, in the circumstances of the case, rests on the plaintiffs who contend that the partnership business of the contesting defendants and their father was also a joint family business. It is significant to note that Ex. D-8 takes in the share of the 2nd defendant in the joint family business and it was duly transferred by the Official Assignee to the guarantor. The business and the movable assets of the partnership firm are movable properties and no registered document is necessary for the transfer of the same. Thus, the business had completely passed out of the 2nd defendant’s branch and the remaining co-parceners viz., Kothandarama Chettiar, father, and his two other sons defendants 3 and 4 having acquired the right of the 2nd defendant in the business on payment to the Official Liquidator became the absolute owners of the business. Therefore, they rightly converted it into a partnership business since there was no other coparcener whose concent was necessary. Accordingly, on 25-4-1964 under Ex. D-23 the three coparceners formed a partnership with regard to the business. After the death of Kothandarama Chetty, the partnership was reconstituted taking in the 5th defendant under the partnership deed dated 12.10.1970 (Ex. D-22). The result is, the business having been constituted by partnership, it ceased y to be an asset to the family and not one of the partible items. 24. In Commissioner of Income-tax, Madhya Pradesh v. Sir Hukumchand Mannalal & Co. ( AIR 1971 S.C. 383 = 1971 (1) S.C.R. 646 ) it is stated that the Indian Contract Act imposes no disability upon members of a Hindu undivided family in the matter of entering into a contract inter se or with a stranger. It is worth repeating that the 2nd defendant-insolvent himself (father of the plaintiffs), who was alive for full 30 years after his adjudication, never thought of claiming any share in the business of his brothers. Further, the belated present claim of the plaintiffs to a share in the business of their uncles (defendants 3 and 4) is neither fair nor reasonable. Further, the belated present claim of the plaintiffs to a share in the business of their uncles (defendants 3 and 4) is neither fair nor reasonable. Defendants 3 and 4 have paid large sums of money by borrowing from Madura Mercantile Bank and others to wipe out the insolvency of their elder brother/2nd defendant and save him from ignominy. Now, his sons have been set up to file this suit for partition in respect of the business of defendants 3 to 5 also. In other words, when the Official Liquidator sought to enforce the 1/4th right of the 2nd defendant in the joint family property, defendants 3 and 4 fully paid off the amount and thus get into the shoes of the Official Liquidator and acquired the rights of the 2nd defendant. Therefore, in any view of the matter, the plaintiffs and defendants 6 and 7 cannot claim any share in the business or in the 1/4th share of the 2nd defendant in the family properties especially when the 1/4th share of the family had completely gone out of the estate under orders of Court. 25. The contesting defendants have filed Memorandum of Cross-Objections disputing the finding of the learned single Judge that under Ex. D-8 the title to the 1/4th share of the insolvent and his sons in the immovable property did not pass to Ganapathi Chetty. For the reasons already stated by us supra, this finding is not sustainable and the Memorandum of Cross-Objection has to be allowed to that extent. However, it is clear that the plaintiffs and defendants 6 and 7, though not entitled to a share in their fathers share, will be entitled to a fractional share in the property of their grand-father Kothandarama Chetty. Learned counsel for the contesting defendants fairly conceded even before the trial court that the plaintiffs can get a fractional share in the share of Kothandarama Chetty on his death in 1970, under the Hindu Succession Act. It is also conceded that with reference to immovables the properties described as items 1 and 2 in plaint A Schedule, each of the two plaintiffs will be entitled to 23/900th share. It is further conceded that with reference to the jewels belonging to the 1st defendant and described as items 1, 2, 3 and 7 of the B Schedule, each of the plaintiffs will be entitled to 1/15th share. It is further conceded that with reference to the jewels belonging to the 1st defendant and described as items 1, 2, 3 and 7 of the B Schedule, each of the plaintiffs will be entitled to 1/15th share. It is made clear that so far as the business is concerned, the plaintiffs and defendants 6 and 7 are not entitled to any share or accounting. Thus, the shares of the plaintiffs are worked out as follows: The plaintiffs and defendants 6 and 7 will be each entitled to 23/900th share in their grandfathers properties. They will also be entitled to 1/15th share each in the jewels of the 1st defendant. The 6th respondent in the appeal viz., the grand-daughter, is held entitled to 8/900th share in her grandfathers properties and 1/15th share in their grand-mothers jewels. 26. The result is, the appeal preferred by the plaintiffs and the 2nd defendant is dismissed and the Memorandum of Cross-Objections preferred by defendants 3 to 5 it allowed in part modifying the shares of the plaintiffs and defendants 6 and 7 as indicated above. Each party to bear his own costs in the appeal and in the Memorandum of Cross-Objection.