Rajagopala Aiyangar, J.-

There was a joint family consisting of a father and two sons. The father had incurred debts and was adjudicated an insolvent on a creditor’s petition filed on nth March, 1946. On 12th February, 1946, the insolvent had executed in favour of one Chennappa Chetti a deed of sale of all the lands belonging to him. This deed was executed by the insolvent on his own behalf and as the guardian of his two minor Sons for a consideration of Rs.3,000. The consideration for this sale was made up in part of amounts due to the vendee himself" under two antecedent mortgage-deeds, and in part of amounts due to him and his deceased elder brother on promissory notes.

After the adjudication, the Official Receiver filed a petition to set aside the sale-deed, dated 12th February, 1946, under sections 53 and 54 of the Provincial Insolvency Act. The learned Subordinate Judge came to the conclusion on a review of the evidence that the vendee had not purchased the property in "good faith and for valuable consideration" and, that it was clear that the object of the insolvent in executing the sale was with a view to giving the vendee a preference over other creditors without any pressure from him. On these findings the application by the Official Receiver was ordered.

The purchaser took the matter in appeal to the District Court in C.M.A. No.87 of 1950. The learned Additional District Judge agreed with the first Court that the transaction of sale fell within section 54 as a fraudulent preference. A fresh point, however, was raised in the appellate Court that since the insolvent had conveyed to the purchaser not merely his interest in the family properties but also the interest of his two sons- as their guardian, and as these two coparceners had not been adjudicated, the insolvency Court had no jurisdiction to set aside the sale in full, but could only set it aside as regards the one-third share of the insolvent, and that the purchaser’s rights to the two-thirds share of the sons could not be affected by any order under section 54.

The learned Additional District Judge has dealt with this point in paragraph 7 of his judgment and holding that as the debt for the discharge of which the sale was executed was binding on the sons and as the insolvent must be taken to have executed the sale in his capacity as father, the son’s share also passed to the purchaser, and if that were so, the entire alienation could be set aside under section 54 of the Provincial Insolvency Act. He accordingly confirmed the order of the first Court and dismissed the transferee’s appeal.

This revision petition is preferred by the transferee against this order in C.M.A. No.87 of 1950. Mr.N.R. Raghavachari does not contest the finding of the Courts below as regards the transaction falling within section 54 as a fraudulent preference but has urged before me only the last point set out above and contends that the Court had no jurisdiction to set aside the sale quoad the shares of the non-insolvent vendors, i.e., the two minor sons.

There is such a considerable conflict in the decisions touching this point that I think it proper that the question raised should go before a Bench for an,authori-tative ruling. The earliest case on the point seems to be a decision of Sundaram Chetty, J., in Subramanian Chettiar v. Subbaraya Goundan1. The mortgage-deed attacked in that case as a fraudulent preference was executed by the insolvent for himself and as father and guardian of his two minor sons. The learned Judge held that the deed was in effect a composite deed, executed by three persons having distinct interests in the property transferred, and that therefore on the insolvency of one, the transfer could be set aside by the insolvency Court only in regard to his share. Consequently the order setting aside the sale as fraudulent was confined to the share of the insolvent transferor. This decision, however, was dissented from by Pandrang Rao, J., in Palaniappa Chettiar v. Official

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