The main legal point established in the judgment is that a decree obtained without the leave of the Insolvent Court, in a case involving joint family debt, is a nullity and not binding on the Official Receiver.

Venkataramana Rao, J.

1. This appeal arises out of an application filed under S.. 4 of the Provincial Insolvency Act in the insolvency of one Mallayya by the 1st respondent who is a creditor of the said Mallayya. The relief sought is a declaration that the decree in O.S. No. 149 of 1932 on the file of the district Munsif s Court, Masulipatam, obtained by the appellant against the insolvent Mallayya and his sons, respondents 5 and 6 in this appeal, is a nullity in its entirety and does not bind the Official Receiver, Kistna who is the 2nd respondent here. It was alleged in the application that the said Mallayya was adjudicated insolvent on 20th January, 1932, that the appellant instituted the said suit subsequently without obtaining the leave of the Insolvent Court and obtained a decree against the insolvent personally and against the joint family property in the hands of his sons. The appellant stated in his affidavit that he was not aware of any insolvency when he filed the suit and that in any event the decree could not be set aside in its entirety and if at all, it could only be declared a nullity against the insolvent and not against his sons. The learned District Judge passed an order that he did not deem it necessary to decide the question under Section 4 (3) of the Provincial Insolvency Act and closed the petition with the remark that the Official Receiver might proceed against any saleable interest the insolvent might have got in the sons shares. An appeal was presented against this order and our learned brothers King and Krishnaswami Aiyangar, JJ., remanded the petition for hearing in the light of the following observations contained in their order:

We consider the essential question which now requires adjudication is, what is the property which the Official Receiver is entitled to sell?

On remand the learned District Judge came to the conclusion: that the suit filed against the father and the sons without the leave of the Insolvent Court was incompetent and therefore the decree was a nullity. He summed up his conclusion thus:

The question formulated by the High Court is answered by declaring that the Official Receiver is entitled to sell the fathers share and also the sons shares for the reasons that the decree obtained in O.S. No. 149 of 1932, on the file of the District Munsif s Court, Masulipatam, is a nullity in its entirety as having been obtained on a suit filed without previous leave of the Insolvency Court to proceed against the insolvent or his property, the latter term including also the insolvent fathers right to dispose,of his, sons shares.

It is against this decision this appeal has been preferred.

2. The question for decision is whether it is open to the Insolvent Court to declare under Section 4 of the Act that the decree obtained by the appellant is a nullity in its entirety. It is not disputed that the Insolvent Court may give a declaration that the decree is not binding so far as the Official Receiver is concerned as representing the insolvent, but can it also make such a declaration in regard to the decree obtained against his sons? From a perusal of the plaint and the decree in this, case it is clear that the debt on which the decree was obtained was not a personal debt of the insolvent but a debt incurred by him as the manager for the benefit of the family consisting of himself and his undivided sons, respondents 5 and 6. The debt was therefore as much a debt of the sons as that of the father. It is also undoubted law that by reason of the insolvency of the father the shares of the sons do not vest in the Official Receiver but what vests in him is the right of the father to sell the sons share for the discharge of such debts as would be binding against the sons. Recently the question arose in Murali Mohan Reddi v. Brahmayya (1943) 1 M.L.J. 173 whether leave of the Insolvent Court is necessary to file a suit against the* undivided sons of a father who was adjudicated insolvent in respect of a de