Judgement

Consolidated Appeals (Nos. 23 and 24 of 1932) from two decrees of the High Court (January 20, 1926) affirming with modifications two decrees of the District Court of Delhi (April 13, 1916).

In these consolidated appeals the question was whether the capacity of the father of a joint Hindu family, governed by the Mitakshara, to exercise his power to sell the joint family estate to enforce the pious obligations of his sons to discharge out of their interests his untainted antecedent debts vests in the Official Assignee on the father being adjudicated insolvent under the Presidency Towns Insolvency Act, 1909.

The facts and the relevant statutory provisions appear from the judgment of the Judicial Committee.

The High Court (Campbell and Dalip Singh JJ.), affirming the trial judge, held that under s. 52, sub-s. 2 (b), of the Presidency Towns Insolvency Act, 1909, the capacity to exercise the insolvents power to sell the joint family properties for his antecedent debts, so far as they were not incurred for immoral or illegal purposes, vested in the Official Assignee. The appeal is reported at ( 1926) I. L. R. 7 Lah. 376.

1936. June 15, 16, 18. Upjohn K.C. and Parikh for the appellants. The joint family, governed by the Mitakshara, consisted of a father and two sons. In the course of his management the father contracted debts, and in September, 1913, he was declared an insolvent under the Presidency Towns Insolvency Act, 1909. The Official Assignee claims that though only one-half of the property was vested in him he had some power to deal with the interest of the part which was not vested in him. The exact point which is left open for the Boards decision is to be found in Sat Narain

v. Behari Lal. (( 1924) L. R. 52 I. A. 22, 39.)

The direction in the decree of the High Court is objected to on two grounds (1.) That it was limited to unsold property, and thereby excludes properties not mortgaged to the bank which had been sold by the Official Assignee. (2.) It is entirely wrong, and quite inconsistent—-it treats the sons pious duty as by some implication a charge on the sons shares without any step being taken to have such charge declared. In Brij Narain v. Mangla Prasad (( 1923) L. R. 51 I.A. 129, 139) the doctrine is summed up in a number of propositions, the second and third of which apply to this case. The Insolvency Act, 1909, deals only with the fathers creditors against the fathers estate, and the direction in the decree is wholly outside the action. [Reference was made to the Presidency Towns Insolvency Act, 1909, ss. 2 (e), 9, 46, sub-s. 3; ss. 49, 52, sub-ss. 1, 2; s. 76.] The manager has no power to deal with the family property except for necessity. The pious obligation is not general; it is very much limited. [Reference was made to Fakirchand Motichand v. Motichand Hurruckchand (( 1883) I. L. R. 7 13. 438.); Suraj Bunsi Koer v. Sheo Proshad Singh (( 1878-9) L. R. 6 I. A. 88,106.); and to Mullas Hindu Law, 8th ed., p. 355, para. 295.] This is a general power of sale to be exercised by the father for his own benefit simpliciter, and is a power conferred on him by the Hindu law. His only power to sell is to pay off antecedent debts.

No distinction can be drawn between the language in s. 2 (e) and s. 52, sub-s. 2 (b), of the Act of 1909; it is really the same, and referring to it in Sat Narain v. Behari Lal (( 1924) L. R. 52 I. A. 22.) it is said (Ibid. 38.) " Sect. 2 seems to contemplate an absolute and unconditional power of disposal." If that be so, that language is equally applicable to s. 52. The Act does not mean, however, that the Official Assignee is to be put into a position in which he cannot possibly be—the Act cannot put him into the position of the father of the undivided family. In Mullas Hindu Law, 8th ed., at p. 366, s. 298, there is a list of eight classes of debts excluded. When the property is sold it comes into the cash account of the Official Assignee, and then it falls under s. 52, and the proce