Judgment

MUDHOLKAR, J. : Only one question arises for consideration in this appeal by special leave and that is the meaning to be given to the expression final decision occurring in the first proviso to s. 28A of the Provincial insolvency Act, 1920 (Act No. 5 of 1920), introduced by Act No. 25 of 1948.

2. For appreciating the argument advanced before us a few facts have4 to be stated. Venkata Reddy, the father of the appellants, was adjudicated an insolvent by the Sub-Court, Salem in 1. P. NO. 73 of 1935. At that time only the appellants 1 and 2 were born while the third appellant was born later. The father s one-third share was put up for auction by the Official Receiver and was purchased by one Karuppan Pllai for Rs. 80/-. The Official Receiver then put up for auction the two-thirds share belonging to appellants 1 and 2 on July 27, 1936 which was purchased by the same person for Rs. 341/-. He sold the entire property to the respondent Pethi Reddy on May 25, 1939 for Rs. 300/-.

3. The appellants instituted a suit on February 1, 1943, for the partition of the joint family property to which suit they made Pethi Reddy a party and claimed thereunder two-thirds share in the property purchased by him. In that suit it was contended on behalf of the respondent that on the father s insolvency the share of the appellants in the joint family property also vested in the Official Receiver and that he had the power to sell it. The contention was negatived by the trial court which passed a preliminary decree for partition in favour of the appellants. The decree was affirmed in appeal by the District Judge and eventually by the High court in second appeal, except with a slight variation regarding the amount of mesne profits. The decision of the High court is dated November 18, 1946. On January 18, 1946, the appellants made an application for a final decree which was granted ex parte on August 17,1946. At the instance of the present respondent this decree was set aside. By that time the new provision, that is, S. 28A of the Provincial insolvency Act had come into force. On the basis of this provision it was contended by the respondent that the appellants were not entitled to the allotment of their two-thirds share in the property purchased by him inasmuch as that share had also vested in the Official Receiver. The District Munsif held that Act 25 of 1948which introduced S. 28A did not affect the preliminary decree for partition since it had been passed on August 20, 1943. He, therefore, restored the ex parte final decree which had been set aside on December 17, 1950. The appeal preferred by the respondent against the decision of the District Munsif was dismissed by the Principal Subordinate Judge, Salem whereupon he preferred a second appeal before the High Court. The High Court allowed the appeal and dismissed the application of the appellant for passing the final decree.

4. Section 28A of the Provincial Insolvency Act runs 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 :

Provided that nothing in this section shall affect any sale, mortgage or other transfer of the property of the insolvent by a Court or Receiver or the Collector acting under S. 60 made before the commencement of the Provincial insolvency (Amendment) Act 1948, which has been the subject of a final decision by a competent Court :

Provided further that the property of the insolvent shall not be deemed by any reason of anything contained in this section to comprise his capacity referred to in this section in respect of any such sale, mortgage or other transfer of property made in the State of Madras after July 28, 1942, and before the commencement of the Provincial Insolvency (Ame