WALCHAND MOLAJI MARWADI Vs. CHARLES A WILLIAMS
HIGH COURT OF BOMBAY
WALCHAND MOLAJI MARWADI
CHARLES A WILLIAMS
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Rangnekar, J. -
(1.) THIS second appeal raises a point of considerable importance. The facts, which give rise to the question which we have to decide, are, briefly, as follows.
(2.) THE first respondent was employed in the Ammunition Factory at Kirkee. THE second respondent and some others had obtained a money-decree against him. In execution of that decree, the salary of the first respondent was attached, and one instalment of Rs. 125 was paid in Court as a result thereof. In the meanwhile, respondent No.1 retired from his service. He had subscribed to the provident fund, which, it is common ground, was Government provident fund, and had a sum of Rs. 4,540 standing to his credit in that fund-That amount was paid to him on September 1, 1931. Previous to that, however, he was adjudicated an insolvent on July 18, 1931 ; and, it is clear that, under the provisions of the Provincial Insolvency Act, his estate had vested in the receiver. THE appellant was, admittedly, one of his creditors ; and he applied, under Sub-section (4) of Section 28 of the Provincial Insolvency Act, in effect, for a declaration that the amount of Rs. 4,540, which the insolvent had paid to the second respondent, had vested in the receiver as the property of the insolvent and was divisible among his creditors in his insolvency.
The learned First Class Subordinate Judge relied upon Nagindas Bhukhandas v. Ghelabhai Gulabdas (1919) I. T. R. 44 Bom. 673 : S. C. 22 Bom. L. R. 322, and dismissed the suit. He, however, held that the second respondent had actually received the sum in question from the insolvent.
An appeal from that decision was summarily dismissed by the learned District Judge of Poona ; and it is from this order that the appellant has now appealed.
(3.) IF we had felt that this case was governed by the decision in Nagindas"s case, in the view which we take of the law, we should have felt ourselves bound to refer this to a Full Bench. Speaking for myself,-and, with respect,-I am unable to agree with the decision in that case. But, I think, having regard to the change in the law, it is necessary for us to make a reference to a Full Bench; and the matter may shortly be stated in this way.
The question, which we have to decide, is,: whether the sum, standing to D the credit of a subscriber, under the Provident Funds Act, when received by him before his death, vests in the receiver in his insolvency.;
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