Judgement

Appeal (No. 153 of 1923) from a decree of the High Court (July 25, 1922) reversing a decree of the District Judge of Delhi.

The plaintiff-appellant, a minor, alleged by his plaint that as a member of a joint Hindu family he was joint owner and occupant of a house in Delhi, and in that capacity he claimed under the Punjab Pre-emption Act, 1913, s. 16, a right of pre-emption over an adjoining house "on account of easements and antiquity."

The defendants-respondents, who had purchased the house in question in 1914, pleaded that in 1913 the plaintiffs father, the managing member of the joint family, had been adjudicated an insolvent under the Presidency-towns Insolvency Act, 1909, and that thereupon the interest of the plaintiff in the joint family property vested in the official assignee, and the plaintiff ceased to have any right of pre-emption. The vendor was made a defendant, but did not contest the suit.

The facts appear from the judgment of the Judicial Committee.

The District Judge who tried the suit made a decree allowing the plaintiffs claim.

The High Court upon appeal made an order referring to a Full Bench the question Does an order of adjudication against a father vest in the official assignee his sons interest in the joint family property ? "

A Full Bench, consisting of Shadi Lal C.J. with Chevis and Raoof JJ., answered the above question in the affirmative. The judgment of the learned Chief Justice, with which the other members of the Bench concurred, is reported at I. L. R. 3 Lah. 329.

In accordance with the ruling of the Full Bench a decree was made dismissing the suit.

1924. July 11. De Gruyther K.C., and Dube for the appellant. The present question turns upon the provisions of the Presidency-towns Insolvency Act, 1909, and not upon considerations of Hindu law as to the liability of a son for his fathers debts. The adjudication did not cause the insolvents son to cease to be an owner entitled to pre-empt under the provisions of the Punjab Pre-emption Act, 1913. The Insolvency Act did not vest the interest of the son in the official assignee upon the adjudication. The effect of s. 52 was to vest in the official assignee a disposing power, but not the property itself; until a sale took place for the benefit of the creditors the sons interest remained untouched. The cases referred to in the High Court are distinguishable; they either arose under a different Act, or were cases of partnership. [Reference was made to the cases which are mentioned in the judgment of the Judicial Committee.] Sect. 266 of the Code of Civil Procedure, 1882, has no bearing upon the present question, which is one of the constructions of the Act of 1909. The respondents did not appear.

Oct. 21. The judgment of their Lordships was delivered by

SIR JOHN EDGE. This is an appeal by the plaintiff in the suit from a decree of the High Court at Lahore, which dismissed his suit. The suit was brought on March 17, 1915, by the plaintiff (appellant), then a minor, through his next friend, in the Court of the District Judge of Delhi for possession of a house in Delhi by pre-emption. The District Judge gave the plaintiff a decree, but the High Court in appeal dismissed the suit on the sole ground that his father had been adjudicated insolvent on September 27, 1913, under the Presidency-towns Insolvency Act, 1909, the High Court being of opinion that on that adjudication of insolvency the plaintiff had ceased to have a right to pre-empt the house in question.

The question on which this appeal depends is, what is the right or interest which an official assignee acquires under Act III. of 1909, the Presidency-towns Insolvency Act, 1909, in the joint and unpartitioned immovable property of a Hindu joint family governed by the law of the Mitakshara on, and solely by virtue of, an adjudication by a High Court that one of the coparceners of the joint property is insolvent ? The question is one of importance, and it depends on the true construction of th