GANESH BABU MINOR Vs. K S RADHAKRISHNAN

JUDGEMENT

(1.) THE first respondent to the second appeal filed a suit O. S. 55 of 1952 against the fourth respondent herein and obtained a decree on 31-3-53. On 12-6-53, the 1st respondent filed E. P. 137 of 1953 for executing the said decree. However during the pendency of that application the 4th respondent herein was adjudged insolvent in I. P. 13 of 1953. In view of this adjudication E. P. 137 of 1953, was dismissed on 22-6-1954. Thereafter, the 1st respondent filed E. A. 333 of 1954 in I. P. 13 of 1953, and on 5-2-1955, obtained leave of the Court to execute the decree against the 4th respondent's share in the suit property. Subsequently on 5-5-1955, the 1st respondent filed E. P. 242 of 1955 and attached the one-fourth undivided interest of the 4th respondent in the property of the joint family comprising of himself, respondents 2 and 3 herein and one R. N. Rangachari, who figured as the 1st defendant in the present suit. On 23-11-1959 the first respondent himself purchased said one-fourth undivided interest in the auction. On 4-1-1960, a sale certificate was issued to him and on 17-5-1960, the possession of the said one-fourth undivided share was also delivered to him. Thereafter the 1st respondent filed O. S. 345 of 1961 out of which this second appeal arises for partition of the said one-fourth share purchased by him, impleading the judgment-debtor (4th respondent), the 4th respondent's three brothers and the Official Receiver, Madurai, as defendants to the suit. Subsequently the present appellants before me who were minor sons of the 4th respondent were added as the 6th and 7th defendants to the suit as per the order dated 9-11-1961 on I. A. 1730 of 1961. The Official Receiver remained ex parte and the other respondents, namely, the judgment debtor, his three brothers and two minor sons, contested the claim of the 1st respondent. The principal defence was that though the 1st respondent purported to bring to sale and purchase the one-fourth undivided interest of the 4th respondent in the property in question, still on the date of of the sale the 1st respondent had two minor sons, namely, defendants 6 and 7, and therefore, the interest of the 4th respondent acquired by sale was not one-fourth interest, but only 1/12th interest, one-sixth interest going to the shares of the two minor sons of the 4th respondent the learned District Munsif over-the contention of the defendants and decreed the suit in favour of the 1st respondent as prayed for with costs and past and future mesne profits. The decree and judgment of the learned District Munsif were confirmed by the learned District Judge of Madurai, in A. S. 38 of 1963. It is against this judgment and decree the present second appeal has been filed by the two minor sons of the 4th respondent.

(2.) BEFORE me, Mr. A. Ramanathan, the learned counsel for the appellants, advanced several arguments raising interesting questions of law. However in view of one admitted fact, none of those questions fall to be considered in the present appeal. That admitted fact is that the present appellants were born subsequent to the adiudication of the 4th respondent. If they were born subsequent to the adjudication of the 4th respondent, the law is clear that they do not acquire any interest in their father's undivided share in the Hindu joint family property which prior to their birth vested in the Official Receiver. In P. Rama Vilas Nidhi Ltd. v. Pera Naicken, ILR 59 Mad 770 = (AIR 1936 Mad 161), two sons born subsequent to the adjudication of their father as insolvent filed a suit for partition impleading the Official Receiver as a defendant. The Official receiver remained ex parte with the result the two sons got a decree for partition. Afterwards the Official Receiver "filed an application for setting aside the ex parte decree, pleading his forgetful-ness in the midst of heavy work. But as even this application was filed out of time, the Court dismissed the application. Thereupon one of the creditors of the insolvent filed, with the leave of the Court, on behalf of all the creditors of the insolvent, a suit for a declaration that the decree in the partition suit was not binding upon the creditors. That suit was dismissed by the learned District Munsif on the ground that the remedy of the creditors who were aggrieved by the fraudulent and negligent conduct of the Official "receiver was to take proceedings against 'him under Section 56 of the Provincial "insolvency Act. This view of the learned District Munsif was upheld in appeal by the learned subordinate Judge. A second appeal was filed in this Court against the decision of the learned Subordinate Judge and while allowing the second appeal this Court stated that the sons had no interest in the property at all, since their father's interest in the property vested in the Official Receiver even before their birth. In Kandaswami v. Kandaswami, AIR 1947 Mad 372, it has been held that on an adjudication of a Hindu father the property vests in the Official Receiver, that the property passes out of the hands of the insolvent from the date of the application, and that a son born subsequent to the date of application is in no better position with regard to that property than he would have been with regard to an alienation made before he was born. In the light of the two decisions, the position is clear that the present appellants who were born subsequent to the adjudication of the fourth respondent as insolvent did not acquire any right in his interest which had become vested in the official Receiver even before their birth. Therefore, the contention of the appellants that the first respondent herein had acquired only 1/12th share in the property under the purchase fails, with the result that the decree for partition passed by the Courts below is correct and upheld.

(3.) THERE is one other argument advanced by the learned counsel for the appellants relating to the point of time from which mesne profits would become payable by the appellants. Learned counsel for the appellants drew my at-ention to the decision of the Supreme Court in Sidheswar Mukherjee v. Bhu-baneswer Prasad, and contended that the liability of the appellants to pay mesne profits to the first respondent arose only from the date when a specific allotment was made in his favour. In that judgment, the Supreme Court pointed out--