The power of the insolvent father or manager to dispose of the shares of the family members to satisfy his debts vests in the Official Receiver, but the property itself does not vest in the Official Receiver. The creditors of the insolvent have the power to resort to such property for realizing their debts.

Krishnan Pandalai, J.

1. Defendants 3, 4 and 5 who are the sons of the 2nd defendant and brothers of the 1st defendant appeal. The 1st defendant executed a promissory note to the plaintiff when he was the managing member of the family of himself and his father and his brothers. He became insolvent and was . represented in the suit by the Official Receiver of Cuddappah. This suit was brought on the promissory note impleading all the members of the family including the insolvent and the Official Receiver. The suit was obviously unsustainable against the insolvent and the Official Receiver, because the debt was one provable in insolvency for which no suit could be maintained. It was therefore dismissed against the 1st defendant and the Official Receiver but decreed as against the other defendants on its being proved that the debt was incurred on behalf of the family and made realisable from their shares of the family property. This was the decree of both the Lower Courts.

2. The appellants contended before the Lower Court that the suit was not maintainable against them also in view of the insolvency of the 1st defendant which has the effect of vesting the Official Receiver with the power to sell the whole of the family property including their own shares for satisfaction of the debts of the family. The learned District Judge rejected this contention. It is repeated here. No authority has been produced in support of it but a number of decisions have been cited which go to show that although on the insolvency of a father or likewise of the manager of a family, the shares of the sons or of the other members in the family property do not as such vest in the Official Receiver (Sat Narain v. Behari Lal (1924) L.R. 52 IndAp 22 : I.L.R. 6 Lah. 1 : (1924) 47 M.L.J. 857 (P.C)), yet the power of the insolvent father or manager as such to dispose of the shares of the sons or of the other members to satisfy his debts vests in that Officer (Balavenkataseetharama Chettiar v. Official Receiver, Tanjore I.L.R. (1926) Mad. 849 : (1926) 51 M.L.J. 269, Official Receiver, Anantapur v. Ramachandrappa I.L.R. (1928) Mad. 246 : AIR1929Mad166 and Anand Prakash v. Narain Das Dori Lal I.L.R. (1930) All. 239). It is therefore argued that the power of disposal of the shares of the other members is itself property and vests as such in the Official Receiver and therefore the creditors of the insolvent have no power to resort to such property for realising their debts. The fallacy in this argument is that the plaintiff is not resorting to any property which is vested in the Official Receiver to give him relief in this suit. Ex hypothesi the property meaning thereby lands, houses, gardens, etc., being the shares of the other members has not vested in the Official Receiver. It is the power of disposing those shares which is vested. The present plaintiff is not trying in any manner to interfere with that power. It may or it may not be that the Official Receiver has need to use the power. If he does not use the power, it is clear that no conflict can arise between the plaintiffs proceeding in execution of his decree and any proceedings in insolvency by the Official Receiver. Even if he should do so, unless the plaintiff can be prevented from pursuing his legal rights by some legal prohibition, I cannot see how the fact that an official has the power to dispose of certain property is to affect or restrict the right of others who have a right to resort to that property. I cannot accept the contention.

3. The Second Appeal is dismissed with costs.