POONAMCHAND PRATAPJI Vs. MOTILAL KAPURCHAND
HIGH COURT OF BOMBAY
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Tyabji, J. -
(1.) THIS is a suit arising out of a partnership. The plaintiff was -adjudicated an insolvent on March 18, 1924. After the suit was brought the adjudication order was-on June 16, 1931-annulled.
(2.) SEVERAL objections have been taken to the suit. I need only consider whether by reason of the insolvency of the plaintiff the suit is not maintainable at the instance of the plaintiff.
The Presidency-towns Insolvency Act, Section 17, provides that on the making of an order of adjudication, the property of the insolvent shall vest in the Official Assignee. It is admitted that this section does not apply to property that might accrue to, or to which the insolvent might become entitled, after the date of the adjudication. But the property of the insolvent divisible amongst the creditors under Sub-section (1) (a) of Section 52 comprises all such property as may be acquired by or devolve on him before his discharge. Thus the Official Assignee can. assert a right to property acquired by the insolvent after his adjudication and before his discharge.
It has been held-and this was not questioned-that unless the Official Assignee intervenes, so as to assert under Section 52 a right to divide amongst the creditors of the insolvent property which has been acquired by the insolvent after adjudication, such after-acquired property may be dealt with by the insolvent himself, and third parties may acquire it from the insolvent.
(3.) I have to decide, therefore, whether the Official Assignee has intervened with reference to the property in question,-the subject-matter of the suit.
It was argued for the defendant that he had. The intervention is alleged to-consist in that the Official Assignee appeared in the Court at the instance of Mr. Justice Kemp before whom the suit was pending, secondly, that Mr. Justice Kemp gave orders that the Official Assignee should have notice of the claim of a third party named Seshmal, and, thirdly, that the Official Assignee wrote requesting the solicitors of the defendant to consent to the Court Receiver giving over the assets to him. All this happened in 1930. The Official Assignee by his letter dated October 5, 1934, stated that as the adjudication order herein had been annulled-the annulment was on June 16, 1931-he claimed no interest in the subject-matter of the suit. The letters relied upon in this connection are in exhibits 3, 6 and 7.;
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