Power of insolvent for disposal of property.

This is a thoroughly hopeless Second Appeal totally devoid of substance. One Suryaprakasam had two sons, Swaminatha and Ayyaswami. This Suryaprakasam was adjudged insolvent in I.P. No. 126 of 1922 and Swaminatha in I.P. No. 109 of 1926 both on the file of this Court. Plaintiffs 1 to 5 and the second defendant are the sons of Swaminatha. The Official Assignee under the sale deed, Exhibit B-l, dated 10th February, 1928, sold two-third share (what precisely is sold is in dispute)in the suit property, which is door numbers 8 and 9, Anjaneya Koil Street, Poonamallee, to the first defendant for a sum of Rs. 2,500. Later on the first defendant under the sale deed, Exhibit B-8, dated 20th October, 1930, purchased Ayyaswami’s one-third share in the house for a sum of Rs. 1,250 with the result that the first defendant claims that he has become the owner of the entire house. The first defendant is the son-in-law of Suryaprakasam, having married his daughter.

The five plaintiffs have filed the present suit in the year 1961 for partition and separate possession of their 5/21 share on the ground that under the sale in the insolvency the Official Assignee must be held to have sold only the one-seventh share of the insolvent, Swaminatha (the plaintiffs’ father). The plaintiffs’ further case is that during all this time their father Swaminatha was also in possession of the suit property in recognition of the plaintiffs’ rights; this circumstance being relied upon to save the suit from the bar of limitation.

The first defendant, the purchaser from the Official Assignee, is resisting the suit on the ground that what the Official Assignee purported to sell and actually sold and what was actually purchased by the first defendant is a two-third share in the house under Exhibit B-l, thereby meaning the one-third share of Suryaprakasam, plus Swaminatha’s one-seventh share as well as the shares of his sons by virtue of the power of disposal of Swaminatha over the shares of his sons exercised by the Official Assignee under the sale deed. His further case is that immediately after the execution of Exhibits B-l and B-2 he obtained possession of the property, the entire house, that he has been in possession throughout from 1929 in his own right, and that whatever rights the plaintiffs or any other member of the family may have, have been extinguished by ouster and adverse possession. The first defendant also urged that the plaintiffs came to occupy the portion of the suit property as a tenant under the first defendant, that later on, misunderstandings arose between them, which resulted in the present suit for partition by the plaintiffs.

The trial Court on a consideration of all the facts of the case came to the conclusion that what the Official Assignee purported to sell and actually sold was a two-third share in the house which took in the shares of the plaintiffs as well. It also held that after the purchase by the first defendant he has been in possession of the property in his own right from .1929 excluding all the members of the family, and that the plaintiffs’ rights were therefore barred by limitation. On appeal, this judgment of the trial Court was affirmed, the appellate Court taking the view that under the two sale deeds by the Official Assignee the first defendant had purchased the entire house, including the shares of the plaintiffs. In this view that the plaintiffs have no subsisting title, the lower appellate Court did not express any opinion regarding the question of limitation. Hence the present Second Appeal by the defeated plaintiffs.

Learned Counsel for the appellants urged that on a proper interpretation of Exhibit B-l, the sale deed executed by the Official Assignee, the shares of the plaintiffs, 5/21, had not passed to the first defendant. In support of his contention learned Counsel placed considerable reliance upon the decision of Satyanarayana Rao, J., in Thirumaleshwara Bhatta v. Govinda Bhatta1. Before I refer to this d