ANIRUDDHA MITRA Vs. OFFICIAL RECEIVER, ALIPUR JUDGE S COURT

JUDGEMENT

(1.) This appeal is directed against a judgment of the District Judge, 24 Par ganas dated 4th July 1939 passed in exercise of insolvency jurisdiction, in a proceeding under Secs.4 and 53, Provincial Insolvency Act. The material facts are not in controversy and may be shortly stated as follows : Rai Behari Lal Mitter Bahadur, the father of the appellant, was a wealthy resident of this city, and he died on 7 February 1933 leaving behind him a will which was executed on 5 July 1932. Under this will, the appellant Aniruddha, who was the only son of the testator, was given nothing else, but an allowance of Rs. 700 per month for his maintenance during the period of his natural life. Similar allowances were given to the wife and daughter-in-law of the testator, and after giving a large annuity to the University of Calcutta, the will directed that the residue of the estate was to go to the son or sons of Aniruddha, either natural born or adopted when they would arrive at the age of 21. Failing such sons, the entire estate would go to the University of Calcutta, to be applied for certain purposes specified in the will. Aniruddha, it appears, led a very fast life, and incurred debts to a considerable extent soon after his father's death. On 5 May 1934, he executed a mortgage in favour of respondent 3 by which he hypothecated his right to a portion of his maintenance allowance given to him by his father's will amounting to Rs. 450 a month as security for an advance of Rs. 17,000 only. On 12 September 1934 he created another mortgage in favour of respondent 2 by which, to secure a loan of Rs. 28,000, he mortgaged, amongst other properties, his right to the balance of the maintenance allowance.

(2.) On 11 May 1936, he filed a petition for insolvency, and the adjudication order was made on 24 of August following. On 20 February 1939, the Official Receiver in whom the estate of the insolvent vested, started a proceeding under Secs.4 and 53, Provincial Insolvency Act, for a declaration that the two mortgages mentioned above were illegal and void and were liable to be annulled inter alia on the ground that a right to future maintenance was not alienable in law under Section 6(dd), T.P. Act. An issue was raised on this point, which was heard as a preliminary issue by a District Judge and by his order dated 4 July 1931, the learned Judge decided this point in favour of the mortgagees and held that the transfers in dispute did not come within the mischief of Sec. 6(dd), T.P. Act. This order was not challenged by the receiver, but the insolvent has come up against it by way of appeal to this Court. A preliminary objection has been raised on behalf of respondents 2 and 3, that no appeal lies against the order of the District Judge at the instance of the insolvent who can have no locus standi in a proceeding under Section 4 or Section 53, Provincial Insolvency Act. Under Section 75 (2), Provincial Insolvency Act, the debtor, any creditor, the receiver or any other person aggrieved by a decision or order of a District Court as is specified in Schedule 1, come to or made otherwise than in appeal from an order made by a subordinate Court may appeal to the High Court. The order complained of, undoubtedly decided a question of title under Section 4, Provincial Insolvency Act, and hence comes within the category of appealable orders, as enumerated in Schedule 1 to the Act. Section 75 expressly mentions the debtor as a person competent to appeal, though it is well settled that he can appeal only if he is aggrieved by the order of the District Judge and not otherwise.

(3.) The whole point for our consideration, therefore, is whether the insolvent can be said to be lawfully aggrieved by the order of the District Judge against which this appeal is directed. The meaning to be given to the words "person aggrieved" in connexion with administration of Bankruptcy laws has been discussed in several cases both in England and India. One of the leading cases on this point is Ex parte Sidebotham; In re Sidebotham Ex parte sidebotham; In re sidebotham (1880) 14 Ch. D. 458. It was held there by James L.J. that a person aggrieved must be a person who had suffered a legal grievance; the act or decision complained of must have deprived him of something to which he was lawfully entitled or he must be refused something which he had a right to demand. The words do not mean a man who is disappointed of a benefit, which he might have-received if some other order had been passed. Thus, although an insolvent is entitled to the surplus that remains after the sale of his properties, yet it is not a legal right but a mere hope or expectation; and enormous mischief would result if a bankrupt was allowed to interfere with the administration of his estate on the contingent chance of acquiring more surplus : vide Ex parte Sheffield; In re Austin (1879) 10 Ch. D. 434. In re Lead bitter (1879) 10 Ch. D. 388. In the last-mentioned case the bankrupt after his discharge applied under Section 39, Solicitor's Act, for taxation of a bill of costs to be paid by the trustee in bankruptcy to the solicitor of a mortgagee of the bankrupt. It was held by Sir George Jessel that the bankrupt was not a person interested in the property within the meaning of Section 39, Solicitor's Act. These cases have been followed in India, and reference may be made amongst others to the decisions in Hari Rao V/s. Official Assignee of Madras and Sakhawat Ali V/s. Radha. Mohan Sakhawat Ali V/s. Radha Mohan ( 19) 6 A.I.R. 1919 All. 284.