The property of an insolvent which vests in the Official Assignee or receiver under the Insolvency Act must mean only the property which is divisible amongst his creditors.

Sarjoo Prasad, J.

1. This is a batch of misc. appeals arising out of an order of Mr. S. Ahmad, Dist. J. of Purulia, dated 26-6-1948. All these appeals have been heard together as they are directed against the same judgment & involve common questions for adjudication.

2. The cases arise out of applns. filed by the resp.-creditor under Sec. 4, Provincial Insolvency Act (Act V [5] of 1920). In those applns., the creditor alleged that certain sums of money lying in deposit in the provident fund account of the Tinplate Co. of India Ltd. under the management & control of the trustees of the Tinplate Co. provident fund were the property of the inslvts. within the meaning of Sec.2 (d), Provincial Insolvency Act, & that the said property accordingly vested in the receiver appointed in the inslvcy. proceedings & was available for distribution & division amongst the creditors under Sec.28 (2) of the aforesaid Act.

3. The applns. were opposed by the inslvts. as also by the Tinplate Co. Ltd. & the trustees of the fund aforesaid. Their contention was that the Tinplate Co. had created a fund by an indenture dated 15-7-1930, for the benefit of their employees & their families & had made a declaration of trust according to law transferring & vesting the said funds in the trustees who had admittedly the control, custody & management thereof. The fund being trust property & subject to rules & regulations framed under the instrument of trust, the inslvts. had no present interest in them. They, therefore, urged that the said deposits in the provident fund accounts could not be regarded as property of the inslvts. within the meaning of the Insolvency Act; nor were they available for distribution amongst the creditors of the inslvts.

4. The learned Dist. J. who dealt with these applns. held by his order under appeal that the members of the provident fund, namely, the inslvts had got disposing power over their provident fund monies standing to their credit in two of the accounts, & that, therefore, the provident fund was the property of the inslvts. which vested in the Insolvency Ct. & was available for distribution to the creditors under the provisions of the Insolvency Act. He also found that the property in the funds in question had not vested in the trustees who had simply the power of control & management over the funds in question. Against this order of the learned Dist. J the trustees of the provident fund of the Tinplate Co. of India Ltd. as also the Company have preferred the above appeals.

5. On behalf of the applts. Mr. Bhabanand Mukherji contended that the decision of the learned Dist. J. is erroneous on both the points. His contention is that the inslvts. who were the employees of the Tinplate Co. had no present right of disposition over the funds in question except under the rules of the trust, & that the property in the funds was, as it appears from the terms constituting the fund, vested in certain trustees, & therefore, the trustees could not be divested of the funds in question so as to make them available to the Insolvency Ct. for distribution amongst the creditors of the inslvts. It appears to me that both these contentions of Mr. Mukherji are correct & must prevail.

6. Sec.28 (2), Provincial Insolvency Act, requires that

"on the making of an order of adjudication, the whole of the property of the inslvt. shall vest in the Ct. or in a receiver as hereinafter provided, & shall become divisible among the creditors."

Therefore, if the funds in question are the "property of the inslvt," it cannot be doubted that they would vest in the Ct. or a receiver for purposes of distribution among the creditors. Now, the word "property" has been defined in Sec.2 (d) of the Act. It includes any property over which or the profits of which any person has a disposing power which he may exercise for his own benefit. There is no doubt that this definition of the word "property" is not exhaustive because the language itself shows that it includ