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1 - 10 of 36 (0.30 seconds)Section 52 in The Provincial Insolvency Act, 1920 [Entire Act]
Sri Raja Vatsavaya Venkata ... vs The Official Receiver, East Godavari ... on 23 February, 1965
In making this observation, in our view, the Bench did not propose to draw a distinction between the effect of an attachment of the sons' interest in the joint familv before adjudication and after the adjudication of the father as an insolvent. No doubt, the Bench observed that the attachment of the sons' share in the joint family properties prior to the adiudication of the father as an insolvent makes all the difference. By stating so what the Bench really pointed out was that if the father is adjudged insolvent before the son's interest in the joint familv is attached, not only the father's share but also the father's power of disposal of the sons' share vests in the Official Receiver. But if the attachment is before adiudication only the share of the father vests in the Official Receiver and not the power of the father to sell the sons' interest for, that power of the father to dispose of the sons' interest is lost due to the prior attachment and conseauently does not vest on adjudication in the Official Receiver. But after adjudication if the Official Receiver fails to exercise the power of the father to alienate the sons' interest before attachment, just as the father's power of disposal is lost, the Official Receiver's power of disposal is also lost. It is this aspect that was sought to be emphasized and that observation was not meant to strike a different note from what was held in Raja Vatsavaya Venkata Suryanarayana Jagapathi Raiu Bahadur v. The Official Receiver. East Godavari, . In our view, there is no real conflict in these two decisions.
Section 2 in The Provincial Insolvency Act, 1920 [Entire Act]
Presidency-towns Insolvency Act, 1909
Section 28 in The Provincial Insolvency Act, 1920 [Entire Act]
Section 4 in The Provincial Insolvency Act, 1920 [Entire Act]
Section 5 in The Provincial Insolvency Act, 1920 [Entire Act]
Nori Ramasastrulu vs Teluguntla Balakrishna Rao And Anr. on 28 July, 1942
The power of the father to dispose of his son's share in the joint family properties by private sale, however, subsists only so long as there is no disruption of the joint family status. That power comes to an end when that status is disturbed either by the institution of a suit for partition by the sons or by the attachment of the son's interest in the joint family properties by a creditor, just as the father's power to alienate the son's interest is extinguished on the happening of any of the abovementioned contingencies, so also the power of the Official Receiver comes to an end. for the power of the Official Receiver in this behalf is co-extensive with that of the father. If before the exercise of this power by the Official Receiver any of the above contingencies occur, i.e., the joint family status is disrupted by actual partition, or by the institution of a suit for partition, or by the attachment of the son's interest by any creditor, then the Official Receiver cannot proceed to dispose of the son's interest by private sale
This view consistently expressed in the various decisions of the Madras High Court prior to the decision in Ramasas-trulu v. Balakrishna, AIR 1942 Mad 682 (FB) is in our opinion, the correct view The said position is made plain by Section 28-A of the Provincial Insolvency Act inserted by the Provincial Insolvency Amendment Act XXV of 1948 which was necessitated by a divergent note struck by the decision in Ramasastrulu v. Balakrishna, AIR 1942 Mad 682 (FB). Whether the attachment of the son's interest is before the adjudication of the father as an insolvent or after the adjudication, it makes no difference so far as the son's interest in the joint family properties is concerned. Once there is an attachment of the son's interest by a creditor whe-the before or after the adjudication the Official Receiver's power to dispose of their interest or share by private sale is lost, that power could have been exercised only before the attachment.
Cheruvu Nageswaraswami vs Rajah Vadrevu Viswasundara Raoand ... on 18 May, 1953
25. It was, however, argued before us that the vesting of such a power of the father in the Official Receiver in fact vested the share of the insolvent's sons in the Official Receiver. It was urged placing reliance on the judgment of the Supreme Court in Nageswaraswami v. Viswasundara, that the power of the father to alienate the sons' interest in the joint family estate is itself having been deemed to be 'property' within the meaning of the Provincial Insolvency Act, the sons' share of the property as such passes to the Official Receiver and therefore notwithstanding the subsequent attachment of the sons' interest in the joint family, the Official Receiver can proceed against the sons' share of the property. We do not agree with this contention; all that the Supreme Court in that decision declared was that the power of the father to alienate the sons' share vests in the Official Receiver as 'Property'. Moreover, while so observing the Supreme Court was not considering this particular aspect of the matter but was only dealing with the question whether Section 28-A was retrospective or prospective in its operation and held that it was 'retrospective'.