JUDGMENT Sen, J.
1. This and the connected Appeal raise the same questions of law and may be disposed of together.
2. A creditor firm known by the style of Narain Das Dori Lal applied that the following six firms be adjudicated insolvents : (1) Hazari Lal Tota Ram of Bahjoi; (3) Bhekhari Das Hazari Lal of Bombay; (3) Bhekhari Das Hazari Lal of Jallandhar; (4) Bhekhari Das Hazari Lal of Hoshiarpur; (5) Bhekhari Das Ishar Das of Hapur and (6) Bhekhari Das Hazari Lal of Bahjoi. '
3. The petitioning creditors staged in their application, dated 21st May 1925, that the partners of these firms were 29 in number and included Hazari Lal, Tota Sam and their minor sons. Anand Prakash is a minor son of Hazari Lal. Chaitan Sarup is a minor son of Tota Ram. It has not been controverted that Hazari Lal and Tota Ram, together with their sons, adults and minors, are members of a joint Hindu family. The application for adjudication was opposed, amongst others, by Anand Prakash and Chaitan Sarup upon a variety of grounds. They contended that they were minors and as such could not be adjudicated insolvents. They disowned all connexion with the first five firms which have been mentioned above, and contended that they were not liable for the debts contracted by those firms inasmuch as the debts were incurred not for the benefit of the family, but to meet losses in wagering transactions which used to be carried on by those firms. They further contended that the firm of Bhekhari Das Hazari Lal of Bahjoi was their ancestral business and that the assets of the said firm or their interests therein could not be seized in insolvency.
4. The parties agreed that the first five firms mentioned above may be adjudicated insolvents. Acting upon this agreement the Court by its order dated 17th June 1926 declared them to be insolvents and appointed Babu Raghubir Saran Vakil as the Official Receiver. The Court made no pronouncement on the question as to the minors' liability to be declared insolvents and left the questions open as to whether the minors were partners in the firms and whether their properties were liable for the debts of the petitioning creditors.
5. Later on these matters were considered by the Court, and it came to the conclusion that the firms had been adjudged insolvents and not the minors individually, but that the adjudication could be operative against the minors' interest in the joint family business for the payment of their father's debts. The Court further held that the minors had failed to prove that the debts were due to losses arising from gambling transactions entered into by their fathers and that the interests of the minors in the firms were liable for the payment of such debts.
All the property belonging to the insolvent firms, including the objectors' shares therein, is responsible for the payment of debts due from the insolvent firms.
6. As the result, the minors' objections were overruled. The lower appellate Court has affirmed the decision. "While conceding that a minor cannot be adjudicated an insolvent, it has held that against the minors' interest in a firm adjudication may be made and that the receiver can, in circumstances like the present, sell the property of the sons of the father, (in a joint Hindu family) who has been declared an insolvent.
7. Reliance has been placed upon Jag Mohan v. Grish Babu [1920] 42 All. 515 and Om Prakash v. Moti Ram A.I.R. 1926 All. 447. It further came to the conclusion that the onus of proving that the debts were incurred on account of losses in gambling lay upon the minors which they had failed to discharge.
8. One of the pleas raised in the memorandum of appeal is clearly due to a misapprehension. The minors could not have and have not been adjudicated insolvents. There is the clearest pronouncement of both the Courts on this point. This matter therefore need not be canvassed any further.
9. This Court is bound by the finding of fact reached by the lower appellate Court as to the nature of the debt. The onus clearly lay upon the sons who were challenging the legality or validity of the debt. This they have failed to prove and the finding of the lower appellate Court must be accepted that the debts, are not tainted either with immorality or illegality.
10. It is not questioned and, indeed it cannot be controverted, that the assets of the bankrupt father vested in the Official Receiver. It is equally clear that the sons of a Hindu father are under a pious obligation to discharge his debts. The point which calls for determination is whether the interest of the sons in the joint estate vests in the receiver upon the father's bankruptcy or is the property of the insolvent, which the receiver can sell, under Section 28- (2), Act 5 of 1920.
11. In Bawan Das v. O.M. Chiene A.I.R. 1922 All. 179 Piggot and Walsh, JJ., held that as the effect of adjudication the receiver took over all rights in the property of the insolvent father, including the right to alienate coparcenary property belonging to himself and his minor sons in satisfaction of antecedent debts, not tainted with immorality. The decision proceeds mainly upon the authority of Fakir Chand Moti Chand v. Moti Chand Harakh Chand [1883] 7 Bom. 438 and Rangaya Chetty v. Thalikachalla Mudali [1896] 19 Mad. 74. These decisions however were not founded either upon the text or upon the general scheme of the Provincial Insolvency Act. They have been reviewed in detail by the Privy Council in Sat Narain v. Behari Lal A.I.R. 1925 P.C. 18.
12. A similar view appears to have been taken in Official Assignee v. Ram Chandra Ayyar A.I.R. 1923 Mad. 55, Khem Chand v. Narain Das A.I.R. 1926 Lah. 41, Sellamuttuservai, In re A.I.R. 1924 Mad. 411, Sankaranarayana Pillai v. Rajamani A.I.R. 1924 Mad. 550 and Kuppuswami Goundan v. Marimuthu Goundan A.I.R. 1925 Mad. 52.
13. In Om Prahash v. Moti Ram A.I.R. 1926 All. 447 one of the members of this Bench referred to Section 28, Clause (2), Provl. Insol. Act (5 of 1920) and made the following observation:
The question is whether the expression "property of the insolvent, means the property which the insolvent, as the father of his sons, was entitled to call his own and sell it under certain circumstances or that share which goes to the father in the event of a partition between himself and the sons. On the authority so long prevailing in this Court we take it that the former meaning is the proper meaning of the property as used there.
14. Sulaiman, J., also referred to the trend of authorities of this Court which allowed the receiver in insolvency to dispose of the joint family property in lieu of the debts of the father.
15. The learned Judges did not think that those authorities had been overruled by the Privy Council by their decision in Sat Narain v. Behari Lal A.I.R. 1925 P.C. 18. In the Allahabad Bank Limited, Bareilly v. Bhagwan Das Johri A.I.R. 1926 All. 262 Dalai and Boys, JJ. held that the insolvency of a Hindu father did not vest interests of the sons in the joint family property in the receiver. They followed the decision of the Privy Council in Sat Narain v. Behari Lal A.I.R. 1925 P.C. 18 upon the ground that although the sections construed in that case were those of the Presidency Towns Insolvency Act 3 of 1909, the definition of property in the last mentioned Act corresponded to that of the Provincial Insolvency Act (Section 2 (d), Act 5 of 1920.) In Trayam Keshar Prashad v. B. Basant Kumar Mukerji, A.I.R. 1930 Oudh 36 Stuart, C. J., and Raza, J. have held that upon the bankruptcy of the father, the share of the insolvent coparcener does not vest in the assignee. They have referred to the decision of this Court in Om Prakash v. Moti Ram and Bawan Das v. O. M. Chiene A.I.R. 1922 All. 179 and refused to follow the same. In T.S. Bala Venkata Seethararna Chettiar v. The Official Receiver, Tanjore A.I.R. 1926 Mad. 994 it was held that on the insolvency of a Hindu, his power to sell his sons' share for paying his just and proper debts vests in the Official Receiver but the sons' shares themselves do not so vest. The Judges were agreed that the power vests in the receiver under Section 28 as the insolvent's property but they were not agreed as to whether it vested as " property " under Section 2 (d) of the Act. In Chairman, District Board, Monghyr v. Sheodutt Singh A.I.R. 1926 Pat. 438, Boss and Kulwant Sahay, JJ., held that the receiver has, in circumstances similar to the present, the right to sell the share of the son to liquidate the father's debt not incurred for immoral purposes. In Shripad v. Basappal A.I.R. 1925 Bom. 416 at p. 787 -(of 49 Bom.) Macleod, C. J., held that the power of a manager of a joint family to sell did not vest in the receiver; but his view was not shared by Coyajee, J.
16. It is manifestly clear from the above that there is a sharp cleavage in the views of the Indian Courts, and no less than three sets of divergent views emerge from these decisions.
17. The trend of the rulings of this Court has been that it is permissible to a receiver in bankruptcy to dispose of the entire joint family property in liquidation of the debts of the father who has been declared insolvent. It is not necessary to enumerate these decisions. The decision in Bawan Das v. O. M. Chiene A.I.R. 1922 All. 179 may be referred to as a typical instance.
18. It has been argued that the authority of these decisions has been considerably weakened, if not overruled, by the pronouncement of the Privy Council in In re Sat Narain v. Behari Lal A.I.R. 1925 P.C. 18. Their Lordships had to consider in that case the texture and scheme of the Presidency Towns Insolvency Act, and their judgment was mainly founded upon the language and effect of Section 52 of that Act. They concluded that the insolvency of the father did not, under the said Act, vest the property of the sons in the Official Receiver so as to deprive the sons of their right to maintain a suit for preemption. They emphasized upon that fact and made it perfectly clear that the question in issue before them had to be determined by an examination of the provisions of the Presidency Towns Insolvency Act and that a [recourse to any other Act or Acts was not legitimate or permissible.
19. The point which arises in this appeal has to be answered upon a consideration of the provisions of the Provincial Insolvency Act (5 of 1920). Many of the provisions of the two Acts are common. The scheme and the objective are also common. The two Acts are in many-respects in pari materia. Section 2 (d), Provl. Insol. Act, is a verbatim reproduction of Section 2 (c), Presidency Towns Insolvency Act. Again Section 17 corresponds to Section 29 (2), Act 5 of 1920. But Section 52, Act 3 of 1897 has no counterpart in Act 5 of 1920.
20. It has been strenuously contended that the Privy Council decision contains some general observations which have the effect of oversetting the decision of this Court, if not expressly, at least by implication. This argument proceeds upon an assumption for which no justification can be found in any part of that decision. The entire fabric rests upon a construction of Section 2, Clause (c), and Sections 17 and 52. After quoting a passage from the written statement of Behari Lal and Jamna Das, their Lordships observe:
That means that when a Hindu who happens with his sons to constitute a joint family, subject to the law of Mitakshara, is adjudged an insolvent under the Presidency Towns Insolvency Act, 1909, not only his own right but all the rights and interests of the sons who are his coparceners in joint family property vest in the Official Assignee, by virtue of the adjudication alone, that is a startling proposition.
It must depend upon the wording of the Presidency Towns Insolvency Act, 1909...
21. Again their Lordships observe at p. 89:
Their Lordships are of opinion that the question to be decided in this appeal must be decided on the wording of the Presidency Towns Insolvency Act, 1909, and on that Act alone.
22. In view of these observations, there is no room left for the argument that the Privy Council laid down any general propositions as to the effect of insolvency outside the purview of Act 3 of 1909..
23. There can however be no doubt that the decision of the Privy Council substantially rests upon the definition of property. It has been noticed already that the definition of property in the two Acts is identical. Their Lordships observed:
The father's power to dispose of the joint property is not absolute but conditional on his having debts which are liable to be satisfied out of that property and Section 2 seems to contemplate an absolute and unconditional power of disposal.
24. The power to dispose of the property will thus depend upon the nature and character of the debt. Where a dispute exists as to the legality or propriety of the debt, does the decision rest with the receiver? Does it rest with the insolvency Court? Does the property vest in the receiver immediately and at once as the result of the father's insolvency in anticipation of a decision on the point? Does it vest as the result. of a decision subsequently arrived at?' Has the word "property" in the Provincial Insolvency Act a wider connotation? Does the absence of a section corresponding to Section 52, Presidency Towns Insolvency Act, justify a more liberal construction of that term in the Provincial Act, so as to warrant either the immediate vesting of the estate in the receiver or arm him with a power to sell? These matters have not been sufficiently considered in the majority of the cases that have been cited by the counsel on either side.
25. In view of the fact that the question dealt with above is one of general importance and on which there is a great divergence of judicial pronouncement of the Courts of this country including this Court, it is desirable that the point should be referred to a larger Bench' for decision.
Mukerji, J.
26. I agree with my learned brother that there is no order adjudicating the appellants as insolvents and they therefore need not be apprehensive on that point. I also agree that the debts in respect of which the appellants' fathers have been declared insolvents have not been proved to be such as it is not the duty of a joint Mitakshara son to pay. On the third and more important question however I am unable to share the doubts of my learned brother.
27. I have definitely held in the case of Om Prakash v. Moti Lal that it is open to a receiver in insolvency to seize the joint family property, where the insolvent is a father, by sale, not only of the father's share in the joint family property, but also the share of the son, provided of course the debt or debts which have to be paid are not tainted with immorality. This I held sitting with Sulaiman, J. In a subsequent case I again expressed the same view sitting with Bennet, J., in Ram Ghulam v. Kailash Narain A.I.R. 1931 All. 59. This opinion was expressed in conformity with the Pull Bench case of Madras reported in Bala Venkata v. Official Receiver, Tanjore A.I.R. 1926 Mad. 994 and the Patna report in Chairman, District Board, Monghyr v. Sheodutt Singh A.I.R. 1926 Pat. 438. There is however a Division Bench case of this Court in The Allahabad Bank v. Bhagwan Das A.I.R. 1926 All. 262 in which two learned Judges of this Court, namely Dalai and Boys, JJ., have taken a contrary view.
28. My brother Sen, J., seems to be inclined, to accept the view expressed by Dalal and Boys, JJ. In this state of affairs the opinion in this Court seems to be evenly divided. Sulaiman and Bennet, JJ., and myself take a different view and Sen, J., is inclined to agree with Dalai and Boys, JJ.
29. In these circumstances I agree that this case should be referred to a larger Bench and it is desirable that the Bench should be as large as possible, having regard to the fact that six Judges of this Court have already expressed their views one way or the other.
30. Reference.-Having regard to our judgments we direct that the following points be referred to a Full Bench for decision:
(1) When a joint Hindu father governed by the Mitakshara law is adjudicated an insolvent, whether his joint son's share vests in the receiver (assuming that the debt payable by the father is one which it is the pious duty of the son to pay)?
(2) Whether it is open to the receiver in insolvency to seize the son's share and sell it in order to satisfy the debts payable by the father (assuming that the debt payable by the father is one which it is the pious duty of the son to pay)?
(3) If the receiver in insolvency cannot proceed against the son's share (in the aforesaid circumstances) has the receiver any and what remedy against the son's share in the joint family property? .
Opinion Mukerji, J.
31. The questions that have been referred to a Full Bench for decision are three, namely:
(1) When a joint Hindu father governed by the Mitakshara law is adjudicated an insolvent, whether his joint son's share vests in the receiver (assuming that the debt payable by the father is one which it is the pious duty of the son to pay)?
(2) Whether it is open to the receiver in insolvency to seize the son's share and sell it in order to satisfy the debts payable by the father (assuming that the debt payable by the father is one which it is the pious duty of the son to pay)?
(3) If the receiver in insolvency cannot proceed against the son's share (in the aforesaid circumstances) has the receiver any and what remedy against the son's share in the joint family property?
32. On the first question, namely whether in the case of the insolvency of a Hindu father governed by Mitakshara law, his joint son's share vests in the receiver, it being assumed that the debt payable by the father is one which it is the pious duty of the son to pay, the answer ought to be in my opinion, in the negative and' for these reasons: The law which declares what is the property that in the case of adjudication of a person, should vest in the receiver, is contained so far as these provinces are concerned, in Section 28, Provl. Insol. Act of 1920. Sub-section 2 of that section reads so far as it is material for our present purposes, as follows:
On the making of an order of adjudication the whole of the property of the insolvent shall vest in the Court or in a receiver as hereinafter provided. ...
33. Now, I take it that only that property can vest in the Court or in a receiver which was, before the vesting, vested in the insolvent himself. Can we say, in the case of a joint Hindu family governed by the law of Mitakshara that the son's share was vested in the father? We cannot say so, for the simple reason that while the family is joint, no member of the family is in a position to say what property is vested in him. The entire property belonging to the family is vested in each and every one of the several members constituting the family. In Mayne's Hindu Law, Edn. 9, at p. 344, the following occurs as a description of an undivided Hindu family:
There is no such thing as succession, properly so called in an undivided Hindu family. The whole body of such a family consisting of males and females, constitutes a sort of corporation, some members of which are coparceners that is, persons who on partition, would be entitled to demand a share, while others are only limited to maintenance.
34. Such being the nature of the property held by a joint Hindu family, it is impossible to say that the father, even as the head of the family has in him vested any portion of the family property. Much less can it be said that the son's share that is to say, the share which a son might get on partition in the family is vested in the father. If that be the case, it must follow that on the declaration of the father as an insolvent, the son's share does not vest in the receiver. My answer therefore to point 1, is as already stated, in the negative.
35. The Privy Council in the case of Satnarain v. Behari Lal A.I.R. 1925 P.C. 18, expressed the same view, though for different reasons. I. shall examine that case, at length, later on.
36. Point 2 -The question that is to be answered, when put in different words, is whether the receiver is entitled to alienate, not only the share which an undivided father would get in the family property, if a partition were effected at the date of the adjudication or whether the receiver is entitled to alienate not only the father's share as described above, but the whole of the family property in the hands of the father?
37. The answer to this question will depend on a clear perception of the sense of the word 'property' as used in Sub-section 2, Section 28, Insolvency Act of 1920. Before I proceed to consider this point, I would like to make a few general remarks as to the scheme of the Insolvency Act and its object.
38. The Insolvency Act is designed to give relief to a debtor. When a man has incurred several debts which he is unable to pay, the insolvency Court grants him relief from being harassed by his creditors, if, to speak broadly, two conditions are fulfilled.
39. One is that the debtor has not done any act of dishonesty with respect to the debts and the second is that he gives over the entire property that he possesses (excepting those enumerated in Sub-section 5, Section 28)' into the hands of the Court. The insolvency law provides the machinery by which the insolvent can be given relief and also the machinery by which the creditors, who are not secured in the payments of their debts, are to be satisfied. The law, therefore is mainly an administrative or adjective law, a law of machinery to bring about certain results, namely the satisfaction of the insolvent's debts. One or two provisions by way of substantive law may be found within the four corners of the Act, but we are not concerned with them at present.
40. Such being the character of the Insolvency Act, the provisions contained therein must be general, namely such as may apply to all kinds of debtors whether they are Hindus or Mahomedans or Christians, Buddhists or Jains. What the law requires in the case of each debtor, who wants to be declared an insolvent or whom his creditors want to be declared an insolvent, is that "the whole of the property" of the insolvent shall be handed over to the Court or to the receiver that the Court may appoint.
41. Now, what a person possesses may be different in the case of different substantive laws that govern him. For example, where an insolvent is a Mahomedan widow, she may possess a claim against her husband's estate, for dower. This claim against the husband's estate for dower will be one of the properties owned by her. In the case of a Hindu widow, if she happens to have inherited any property from her husband, her life-estate in her husband's property would be one of the properties owned by her. In the case of a Christian woman, she may possess a decree for alimony against her husband. Thus, it will be seen, that what would be the property of a particular insolvent may be different in different cases. It would all depend on the personal law of property that governs the insolvent.
42. The law of insolvency has been borrowed in India from the English law and in many cases, the language employed in codifying the law in India is the same as employed in England. This fact will go to strengthen my opinion that the insolvency law is a perfectly general law and it would be a mistake to suppose that the legislature 'has taken into consideration the case of a joint Hindu father, particularly. I do not expect to find within the four corners of the Insolvency Act of 1920 any particular provision which may have been meant to apply to a joint Hindu father and to him alone.
43. Bearing in mind the above remarks, we have now to proceed to see what is the property of the father which should be available to the receiver or the Court in order that the insolvent father's debts may be paid.
44. The father, under the peculiar system of Mitakshara law holds a unique position with regard to his family. If he or any of his sons seeks partition, the father may be given a particular share according to the circumstances of the family, at the moment of the partition. The father's share may vary from time to time. If an additional son is born, the share to be received on partition is diminished and if one of several sons happens to die, the share would increase. This is one position of the father. Another position of the father is that ha is the head of the family and as such, the support and maintenance of the family is under his care. He must have credit in the market for the sake of the family and the traders who would deal with him will, naturally look upon him, not as a per-" son holding a certain fractional share in the family property but as the man re-, presenting the whole ' family. For practical purposes therefore it was necessary to give the father larger power over the estate of the family than his fractional share in the family taken by itself would warrant. The necessity for giving the father credit in the market led to the invention of the fiction that it is the son's duty to pay a father's debt. I am not ignoring the religious side of the question. On the religious side it is the duty of a son to pay his father's debts irrespective of whether he has got any assets from the father and irrespective of whether there is any joint ancestral property left. We are however not concerned with the religious aspect of the case. It is now settled law, so far as the British Indian Courts are concerned that a joint son cannot be made liable for his father's debts unless there is any joint family property in his hands out of which to pay it.
45. To go back to the history of the son's liability for father's debt we find that the doctrine of the pious duty of a son to pay the father's debt has led to the following rules of law, as laid down by their Lordships of the Privy Council in Brij Narain v. Mangal Prasad A.I.R. 1924 P.C. 50 at p. 104 (of 46 All.) (1) The father...by incurring debt so long as it is not for an immoral purpose may lay the estate open to be taken in execution proceeding upon a decree for payment of that debt. (2) The father is entitled to alienate the entire family property in order to discharge his own antecedent debts.
46. (3) The liability of the sons to pay the father's debt, i.e., the liability of the son's share in the estate for the father's debt is not affected by the question whether the father is alive or dead.
47. In Mayne's Hindu Law and Usage, Edn. 9, 1922, the law on the subject is stated at p. 409:
After some conflict of decisions, the last view (the whole property of the family in the hands of the father as representing the joint family, is liable for the father's debt) has been finally decided to be the correct one.
48. At p. 413 the law is stated as follows:
The general rule is that no member of an undivided family can by any process appropriate for his own benefit a larger portion of the family property than the share he would obtain on partition. The exception is that, where the father has incurred a debt which would bind his son the creditor can obtain satisfaction of the debt either by a conveyance from the father or by a decree of Court to the extent of even the whole family property.
49. In this state of Hindu law, the question is what is the "whole property," of the father within the meaning of Section 28, Sub-section 2, regard being had to the fact that the father's debts which are binding on the son being debts untainted with immoralitly that is to say, whether it is the fathers undivided fractional share being equal to that of any one of the sons or whether it is the entire family property which the father is entitled to sell to pay his own debts or which a creditor is entitled to take by way of attachment and sale to enforce payment of his debts contracted by the father. Ordinarily it would appear to me that the "whole property" should mean the entire joint family property which the father himself can transfer or against which execution may be had to enforce payment of the debt.
50. The argument however on the other side is that the property of the father is only his undivided share in the joint family property although the father may have a right under the Hindu law to sell the son's share as well in order to pay his own debts. It is further urged that the "right" which the father has so to sell cannot be "property" at all. I am unable to accept this view of the case. Strictly speaking in a joint family the father has no definite share in the joint family property till partition has been agreed upon or affected. Mayne, in his Hindu Law and Usage, Edn. 9 at p. 345, describing the position of a member in a joint Hindu family, governed by the Mitakshara law, says:
The position of any particular person as son, grandson or the like or as one of many sons or grandsons, will be very important when the time for partition arrives because it will determine the share to which he is then entitled. But until that time arrives he can never say, I am entitled to such a definite portion of the property because next year the proportion he would have a right to claim on a division might be much smaller, and the year after much larger as births or deaths supervene.
51. Therefore when we talk of an insolvent's undivided property which should vest in a receiver, are we to take the insolvent's share as he would get on partition at the date of his application to be adjudged an insolvent or at the date of his adjudication? Then again a wife, a mother or a grandmother is entitled to a share in particular cases or where they get such shares the father's share diminishes. In finding out the "undivided share" of the father what rule of partition will be followed? If we treat the partition as at the instance of a son, the wife, the son's mother, would get a share. The Insolvency Act does not lay down any rule on the point. Indeed, till a partition is effected, it cannot be said what the share of the insolvent is there in the family property.
52. Again in one sense where a Hindu father being the leader of a joint Hindu family is adjudged an insolvent he had no property at all and therefore nothing vests in an Official Receiver. On the other hand because the father is entitled to treat the entire family property as his own and separate property for the purposes of satisfaction of his own debts it may very well be urged that the receiver is entitled to sell the entire family property however small the share to be allotted to the insolvent on partition at any particular time may be. In the view however that the father's undivided share vests in the Official Receiver it must be taken that the father's right to sell his son's share also vests in the receiver. The question then that remains to be considered is whether such a right is also "property" and whether such right vests as property in the Official Receiver. This leads me to a consideration of what property is. Williams in his 'Principles of the Law of Real Property, Edn. 24, 1926 deals with the nature of property and I propose to make some extensive quotations from the book. In the very introductory chapter he deals with the subject and starts by saying at pp. 3 & 4 that the word property is used to denote different things. Then he goes on to say :.
Property then may mean, either (1) ownership or (2) the object or objects of ownership or (3) valuable things, according to the context.
53. We are entitled to say when we read in Section 28, Sub-section 2 that the whole of the property of the insolvent shall vest in the Court or in a receiver, that the word ' property " is used in the sense of " valuable things." That is to say all things that can be turned into money in order to pay off the insolvent's debts.
54. Williams continues (at p. 4), .
And property, as meaning valuable things, includes incorporeal as well as corporeal things. That is to say, property consists of two kinds of things : (2) tangible things in their owner's possession; (2) valuable rights of various kinds unaccompanied with possession of anything corporeal. Or, if it be preferred to treat property as an aggregate of rights, the same classification may be propounded in this way : Property consists: (1) of rights of ownership in tangible things clothed with possession; (2) of bare rights or mere rights, unaccompanied with possession, which are nevertheless valuable. But it is more in accordance with the treatment of the subject which has obtained in our law, as well as with common usage, to classify property as consisting of corporeal things, as land or moveable goods, or of incorporeal things, as mere rights regarded objectively as a source of profit.
55. Then at p. 5 the author further goes on to say:
All those things, however are mere rights, unaccompanied with possession of anything corporeal. Some, as we have seen, are rights over land, of which others are in possession as. owners. A debt is nothing more than the right to sue another for money due.
56. Again at p. 6:
All these different rights are however valuable; they may be turned into money and their worth can be assessed in money. Being valuable things they are reckoned as property. But in including such incorporeal things in property, no heed is paid to the nature of the rights of which they consist; they are simply regarded objectively as sources of profit.
57. After this exhaustive treatment of the subject by Willams in his admirable book, it is not necessary for me to add anything further on the subject. I may, however, point out that if a right to sell the mortgagor's property given by contract, by a mortgagor to the mortgagee, be property, which undoubtedly it is, I fail to see why the right of the father to sell his sons' property in order to raise money to pay his own debt should not be " property " equally. The mere fact that in the latter case, the right is given by Hindu law and not by contract should make no difference. The right of the father which we are at this moment considering is certainly not like a power held under the English law under a settlement or otherwise by a party to appoint a property to anybody or to oneself. There, although the right is exercised with respect to property, it is. a right which depends entirely on the choice of the person to whom the right of appointment is given. Here, even if the father did not choose to exercise the right, his creditors might compel him and his sons to yield the entire family property to satisfy their claim. What is or is not property is sometimes difficult to decide, but in this particular case, having regard to the fact that the satisfaction of the father's debt from the entire family property does not entirely depend on his own volition, makes the right of the father very valuable to himself and to the creditor.
58. Accordingly, the right which a father possesses to sell what might fall into the sons's share on a partition must be regarded as a valuable thing and therefore property. The father may be taken as the owner of his undivided share in the joint family property and as having the right to sell or otherwise dispose of the undivided share of his son in order to pay his own debts. In this view I do not see why the receiver or the Court should not be vested with the insolvent's share in the undivided property and along with it, with the father's right to satisfy his own debts by disposing of the undivided share of his sons. As I have pointed out, such a right would be property and would come within the expression, " the whole of the property " in Section 28, Sub-section 2.
59. A contrary view would suggest that while the father's undivided share vests in the Court or the receiver, his right to sell or otherwise dispose of his son's undivided share lapses by sheer want of a person to use that right. In my opinion, there is no reason to take such a narrow view of the position.
60. It is conceded that the position which the father holds and the rights which his creditors possess have received recognition of the Courts for many years and there is not a single reported case decided prior to the decision in Sat Narain's case, to be shortly mentioned, in which it has ever been held that on insolvency of a Hindu father, living jointly with his sons, the Court or the receiver is not entitled to sell the entire family property. It is however said that the judgment of their Lordships of the Privy Council, in Sat Narain v. Behari Lal A.I.R. 1925 P.C. 18 compels us to alter the rule of law which, so far has prevailed in the Courts, and to hold that the father's undivided share is alone capable of being disposed of by the insolvency Court or the receiver appointed by it, and that the creditors, if they want to. pursue their remedy against the remaining family property in the hands of the sons, they must proceed in the way of suits against the sons. This leads me to a consideration of the case.
61. The facts of Sat Narain's case, briefly, were these : the father of the appellant, before their Lordships of the Privy Council was adjudged an insolvent in Bombay under the Presidency Towns Insolvency Act (Act 3 of 1909). By Section 17 of the Act:
on the making of an order of adjudication, the property of the insolvent .... vested in. the Official Assignee.
62. The appellant Sat Narain brought a suit to pre-empt, under the Punjab Preemption Act, a certain house in the neighbourhood of the family house owned by himself and his brothers and father on the ground of vicinage. The purchaser of the adjoining house raised the plea that the plaintiff's share in the house had vested in the Official Assignee by virtue of Section 17, Presidency Towns Insolvency Act, and that therefore' the plaintiff had no such right on foot of which he might maintain a claim for pre-emption. Their Lordships of the Privy Council entirely disagreed with this contention and said that it was a startling proposition to maintain that on one of the members of the Hindu joint family being adjudged an insolvent the shares of the remaining members of the family should also vest in the Official Assignee. Their Lordships arrived at this conclusion on a consideration of the language of the Insolvency Act (Act. 3 of 1909). Even if the matter were not concluded by the decision of their Lordships, I should have had no hesitation in coming to the same conclusion as their Lordships. I need not go over the ground of my decision on point 1, but I may again point out that the father himself was never vested with what is called the undivided shares of his sons and that being so, the Court or the Official Assignee or the receiver in insolvency can never be vested with what was not vested in the father. Before the father was adjudicated an insolvent, he had undoubtedly the right to pay his own debts out of the entire joint family property including the shares of his sons. But this fact did not prevent the sons, before the insolvency, from instituting a suit for pre-emption on the basis of their share in the family property. The fact that the father became an insolvent should not therefore alter the position of the sons who would remain joint owners with the father of the family property, till the property had actually passed out of the family on being sold to satisfy the father's debt. Satnarain's case A.I.R. 1925 P.C. 18, therefore, looked at from this aspect also declares what is the true view of the Hindu law.
63. Let us now consider whether the decision of their Lordships of the Privy Council in Satnarain's case A.I.R. 1925 P.C. 18 really means that the father's right to bring the sons' share to sale is not vested in the Court or the receiver? I see nothing in the judgment as giving any expression to such a view on the part of their Lordships. Indeed, when it was urged before their Lordships as a matter of argument that the Official Assignee may sell the property of the sons, their Lordships said at p. 23 (of 6 Lahore) as follows:
It may be that under the provisions of Rule 52 or in some other way, that property (sons' property) may, in a proper case, be made available for payment of the father's just debts; but it is quite a different thing to say that by virtue of his insolvency alone, it vests in the assignee and no such provision should be read in the Act.
64. This is a clear indication of their Lordships' view that their Lordships were not considering and were not giving expression to any opinion as to what would happen when the question of sale Toy the Court or receiver of the sons' undivided shares arose in order to pay off the insolvent father's debts. Thus, in my opinion, the case of Satnarain v. Behari Lal A.I.R. 1925 P.C. 18 is no authority for us on which we should be justified in holding that their Lordships meant that the receiver or the insolvency Court could not touch the undivided shares of the sons in order to pay the father's just debts.
65. It must be remembered, as remarked by his Lordship Lord Halisbury in Quinn v. Leatham [1901] A.C. 495 that a case is an authority only for the proposition that it decides and not for every proposition that may appear to follow logically from the decision. Law is not always logical : see Quinn v. Leatham [1901] A.C. 495. I would therefore be loth to treat their Lordships' decision as a decision on the point before us.
66. I have already pointed out that without any exception up to this date, it has always been held that it is open to the insolvency Court or the insolvency receiver to deal with the entire family property in payment of the father's untainted debts. Thus, there is a course of decision which has been throughout uniform. Their Lordships of the Privy Council do not look with favour on a departure from a consistent course of decisions merely on the basis of an obiter dictum on the part of their Lordships themselves in any case. In the case of Brij Narain v. Mangal Prasad A.I.R. 1924 P.C. 50 at p. 100 (of 46 All), their Lordships make the following remarks:
Before the present case came to their Lordships, the expression used in Sahu Ram Chandra's case A.I.R. 1917 P.C. 61 had come before the consideration of the High Court in Madras in the case of Vankanna v. Deehshatulu [1919] 41 Mad. 136 and again in Arumugam Chetty v. Koundan [1920] 42 Mad. 711, where the question was referred to a Full Bench.
67. Again at p. 102 (of 46 All.) their Lordships say:
In such a matter as the present, it is above all things necessary stare decisis, not to unsettle what has been settled by a long course of decisions. Their Lordships entirely agree with the views taken by the Chief Justice in the Full Bench Madras case Arumugam Chetty v. Koundan [1920] 42 Mad. 711 at p. 730. They think that Sahu Ram Chandra's ease [1919] 41 Mad. 136 must not be taken to decide more than what is necessary for the judgment namely....
68. It is therefore the settled opinion of their Lordships of the Privy Council themselves that the Courts in India must not depart from a long consistent course of decisions simply on the basis of a dictum or a supposed dictum of their Lordships themselves on a matter which was not directly necessary for their Lordships to decide in the case. I have pointed out that the conclusions at which their Lordships arrived would follow even on a consideration of the Hindu law itself and certainly on considerations applied by their Lordships themselves, their Lordships never considered the point of law which we have to consider, and I am clearly of opinion that their Lordships' judgment is no authority for us to depart from the consistent practice obtaining in India.
69. It is however urged that their Lordships have considered the language of various sections of the Presidency Towns Insolvency Act, that the language of that Act and of the Provincial Insolvency Act are materially the same and that therefore we must accept their Lordships' interpretation of those sections in the Provincial Insolvency Act as well. I am prepared to accept this argument in its entirety, but what do their Lordships say? Their Lordships say that Section 2, Clause (e), Presidency Towns Insolvency Act, means property over which the insolvent has an absolute power of transfer and not merely a power which arises under particular circumstances of a case, i. e., where the debt to be paid is untainted with immorality. I do not rely on Section 2, Clause (d), Provl. Insol. Act, which contains, in similar terms, the definition of property. I have tried to show that the insolvent's right to sell his sons' undivided shares arises from a consideration of the language of Section 28, Provl Insol. Act, corresponding to Section 17, Presidency Towns Insolvency Act. Their Lordships did not consider Section 17 to find out whether the sons' share vested or not in the Court or the Official Assignee by virtue of Section 17. And even if their Lordships had come to the conclusion that the sons' share did not vest under the provisions of Section 17, that would have left the point before us untouched because the question here is whether the insolvent's right to sell the undivided share of his sons could vest or not in the Official Assignee under the provisions of Section 17 of the Act.
70. Then it is urged that in the Presidency Towns Insolvency Act there is a provision under Section 52, being Sub-section 2, Clause (b), as the only provision under which a Hindu father's right to transfer the undivided sons' shares could vest in the Official Assignee, and that as there is no corresponding provision in the Provincial Insolvency Act, therefore, it must be held that in the Provinces the Court or the receiver has no right to deal with the undivided sons' shares. But their Lordships of the Privy Council have nowhere said that it is by virtue of Section 52, Sub-section 2, Clause (b), alone that the Official Assignee can acquire the rights of the father to deal with the sons' undivided shares, in order to pay off the just debts. It is true that their Lordships, in the sentence quoted above from p. 23,. say:
It may be that under the provisions of Section 52 or in some other way that property may in an appropriate ease be available for payment of the father's just debts, etc.
71. But surely this cannot be taken as decision by their Lordships of the Privy Council that Section 52 alone indicates the manner in which the Official Assignee may make the property of the sons available to pay the father's just debts. I have relied on Section 28 (corresponding to Section 17, Presidency Towns Insolvency Act) as the authority for the Court or the receiver dealing with the undivided shares of the sons. I am not in a position to say why a provision similar to Section 52, Sub-section 2, Clause (b), is not to be found in the Provincial Insolvency Act. It may be that 11 years after the passing of Act 3 of 1909, it was found that the aforesaid provision was redundant and unnecessary. But surely I see no reason to make the omission the basis of an argument that the object of the omission was that in the Presidency towns the Official Assignee should be able to sell the undivided sons' shares to pay the father's debts, while in the mufassil towns the Court or the receiver should not be in a. position to do so. I can see no reason whatsoever for the legislature to make such a differentiation. Nobody has as. yet pointed out that in practice any difference existed at the two different, places. I may also again point out that the insolvency law was framed, as it was bound to be framed without reference to the personal laws of anybody and was framed in most general language. The personal law of the insolvent comes in, in order to determine what property can, be called his own and what cannot be, called his own.
72. The argument of convenience is not, very often a sound argument where the language of the law itself is clear beyond doubt. But having regard to the anomalous-position of the father, having regard to his personal capacity as the head of the family and as the father of the family under the Hindu law, it may surely be said that it is not quite clear whether his "whole property" should be his undivided property or his undivided property plus his right to have recourse to the rest of the family property in order to pay off his debts, untainted with immorality. If there be an ambiguity then we shall be justified in adopting that interpretation alone that will bring about a satisfactory result and must reject that interpretation which can only lead to confusion.
73. As I have indicated above the insolvency law was enacted to give relief to insolvent debtors, people who could not pay their own debts. A Hindu father will never go to an insolvent Court or will never be taken there by his creditors, so long as the entire family property in his hands is capable of paying off his father's debts. Because if the whole family property is enough to pay his debts, a father would use it for the purpose or his creditors would attach and sell those joint family properties. It is only when the entire joint family property proves insufficient to pay the debts that the father will go to or will be dragged into an insolvency Court. In these circumstances it is to the interest of the father and his creditors that the father's debts should be paid off by the insolvency Court out of the entire joint family property. It is also to the interest of the sons themselves that their shares in the undivided joint family property be also availed of in order to pay the father's debts. For the sons' undivided shares can in no way escape the payment of the debts. It is argued that while the Court or the receiver will be dealing only with the father's share, it would be open to the creditors to proceed against the sons' shares. As I have already pointed out, that in every case of insolvency the sons' shares must be insufficient to pay the father's debts, if that is so, the sons would like to hand over their shares also to the Court and save the worry of litigations and executions that are inevitable, at the instance of creditors who would try their best to realize their debts from such undivided shares of the sons. The result of the interpretation which we are asked to put on the Privy Council case of Sat Narain A.I.R. 1925 P.C. 18 by the learned Counsel for the appellants is this: Simultaneous proceedings will go on in the insolvency Court and numerous other Courts. This is a position which is hardly desirable. It benefits nobody. It leads to multifarious suits and the very object of insolvency law is frustrated.
74. I find that by far most of the decisions of the Courts given since their Lordships of the Privy Council decided the case of Sat Narain v. Behari Lal A.I.R. 1925 P.C. 18 have arrived at the conclusion that their Lordships of the Privy Council's decision does not touch the point now before us.
75. To begin with our own Allahabad High Court, we have got three decisions in this Court. In Om Prakash v. Moti Ram and Ram Ghulam v. Kailash Narain A.I.R. 1931 All. 59 three Judges in two Division Benches (one Judge being common to both the Benches) have held the view that Sat Narain's case A.I.R. 1925 P.C. 18 has no bearing on the question before us. No doubt in Allahabad Bank v. Bhagwan Das A.I.R. 1926 All. 262 two learned Judges of this Court held a contrary view. But the point arose more or less casually and was therefore naturally dealt with in like manner. In this case of Allahabad Bank v. Bhagwan Das A.I.R. 1926 All. 262 the son's shares along with the share of the father had already been attached by a decree-holder before the father was adjudged insolvent. Owing to this attachment the sons' shares could be dealt with by the receiver in insolvency only subject to the attachment; because the sons not having been adjudged insolvents their shares would not vest in the assignee. Only the right of the insolvent to deal with those shares could vest in him. However there is the position that two learned Judges of this Court did take a contrary view. A contrary view was also taken by the Oudh Court in the case of Trayambakeshwar v. Basant Kumar Mukerji A.I.R. 1930 Oudh 36. But as against this, a Full Bench of the Madras High Court in T. S. Balavenkata v. The Official Receiver, Tanjore A.I.R. 1926 Mad. 994, after an exhaustive consideration of the decision in Sat Narain's case A.I.R. 1925 P.C. 18 came to the conclusion that the present law was not affected and that the right of the father to sell the property vested in the receiver in insolvency. The Madras Court subsequent decisions followed the same view. In Lahore [Khem Chand v. Narain Das A.I.R. 1926 Lah. 41] the same view was taken as by the majority of Judges in this Court. Their decisions was based on Hindu law, and Sat Narain's case A.I.R. 1925 P.C. 18 was distinguished.
76. In Bombay [Shripad v. Basappa A.I.R. 1925 Bom. 416], Macleod, C. J., was inclined to take the view that in the case of the insolvency of a father the "power" which he has got before his insolvency to dispose of family estate for proper purposes did not vest in the receiver but his learned colleague Coyajee, J., did not express his concurrence with this view.
77. On principle and on authority therefore I am of opinion that the answer to question 2 must be returned in the affirmative.
78. Point. 3.-In point 3 we are asked to indicate what would be the remedy, if any, of the receiver against the son's share in the joint family property, if questions 1 and 2 were answered in the negative. I would say that the answer to point 3 must also be in the negative. For the receiver will be nobody, so far as the sons are concerned and he will have no right to proceed against the sons' shares either in the insolvency proceedings or by way of a suit. In the view however which I take on point 2, question 3 would not arise, as the question itself indicates.
Sen, J.
79. The facts of the case which have led to this reference have been set out in my judgment, dated 19th February 1930 and they need not be recapitulated in detail. The points referred to this Bench are:
(1) When a joint Hindu father governed by the Mitakshara law is adjudicated an insolvent, whether his joint sons' share vests in the receiver (assuming that the debt payable by the father is one which it is the pious duty of the son to pay).
(2) Whether it is open to the receiver in insolvency to seize the son's share and sell it in order to satisfy the debts payable by the father (assuming that the debt payable by the father is one which it is the pious duty of the son to pay).
(3) If the receiver in insolvency cannot proceed against the son's share (in the aforesaid circumstances) has the receiver any and what remedy against the son's share in the joint ancestral property?
80. Points 2 and 3 are interconnected and interdependent and hang or fall together.
81. The father has been declared insolvent. The sons have not been declared insolvents. The father and sons are members of a joint Hindu family and own a joint ancestral estate. Under Hindu law, the sons are under a pious obligation to pay their father's debt which is not tainted with immorality. It is within the competence of the father to alienate joint ancestral property belonging to himself and his sons for payment of his antecedent debts or debts incurred for family necessity. The power of disposition by the father is not absolute but depends upon the fulfilment of certain conditions.
82. The questions which emerge for decision are:
83. Upon the father's insolvency, what property vests in the receiver and has the receiver any power in the insolvency jurisdiction to attach and sell the son's interest in the joint ancestral property where the debts are not tainted with immorality?
84. These questions fall to be answered by a reference to the provisions of the Provincial Insolvency Act (Act 5 of 1920).
85. The object and policy of the law relating to bankruptcy are well known and well understood. In the language of a standard authority (Ringwood) they are designed to meet the case of an individual who has no reasonable prospect of being able to pay his debt. Its aim is twofold: First, to distribute the debtor's property among the creditors in .the most expeditious and economical manner. And secondly, to give the debtor a new start in life from the demand of his creditors when he has not been guilty of certain serious offences.
86. It is not however either necessary or permissible to examine and discuss the principle underlying a statute, unless the words of the statute are vague and ambiguous and unless the principle is helpful in clearing up the ambiguity.
87. The present case hinges mainly upon the construction of Sections 28 (2) and 2 (d) of the Act.
88. In interpreting a statute the proper course is in the first instance to examine the language of the statute itself and ask what its natural meaning is. Except where the terms used in the statute have acquired a technical sense, ordinary meaning should be attached to the word or words used and the intention of a statute has to be gathered from the words used and not from any speculation about its object. Regard has to be paid to three important factors:
(1) A statute enacts everything essential to its existence.
(2) Remedial measures must be liberally construed so as to advance the remedy.
(3) Where the words are ambiguous and two meanings are possible, scope and subject of the enactment may be looked at for the elucidation of the meaning.
89. Again in construing a statute one must guard against two pitfalls: (a) Positive law cannot be extended by analogy or parity of reasoning; (b) the creation of anomalies even where anomalies may arise can be no ground for not giving effect to the ordinary meaning.
90. Section 28 (2) provides as follows:
On the making of an order of adjudication, the whole of the property of the insolvent shall vest in the Court or in receiver as hereinafter provided, and shall become divisible among the creditors, and thereafter, except as provided by this Act, no creditor to whom the insolvent is indebted in respect of any debt provable under this Act, shall during the pendency of the insolvency proceedings have any remedy against the property of the insolvent in respect of the debt or commence any suit or other legal proceedings, except with the leave of the Court on such terms as the Court may impose.
91. The italics are mine.
92. The entire joint family property belonging to a Hindu father and his sons is not "the property of the insolvent." Before partition, the property in the hands of the father and the sons is coextensive. No member of the joint family can claim any portion of the joint family property as exclusively his own so long as his rights and interest in the property have not been defined and separately allocated to him. Before partition, the Hindu father as also each of the Hindu sons governed by the Mitakshara has an undivided share in the joint ancestral property. This undivided share is owned by the father and vests in him, and in the same way, the undivided share of each of the sons vests in them. An undivided share is not capable of physical possession but property may be owned and may vest in the person owning the same even though it be not capable of physical possession. I am not prepared to endorse the proposition that where a Hindu father being the head of a joint family, is adjudged an insolvent, he has not property at all and therefore nothing vests in an Official Receiver.
93. Even before partition, the father has an undivided share which is property. For many purposes this share does not materialise before partition has taken place; but the undivided share is there and the owner of the undivided share is also in existence. If the undivided share has no owner it must escheat to the Crown.
94. It is in each case a question of fact as to what is the property of the insolvent. For answer to the question, one must turn to the personal law of the insolvent. Where the insolvent has got no more than an undivided interest in the joint ancestral property this interest and this interest alone vests in the receiver under Section 28 (2). The undivided interest of the sons in the joint ancestral property is not the property of the insolvent.
95. The word "property" has not been exhaustively defined in the Provincial Insolvency Act. Under Section 2 (d) "property" includes any property over which or the profits of which any person has a disposing power which he may exercise for his own benefit. The Hindu father has undoubtedly the power to alienate property held in jointness by himself and his sons provided that certain conditions are fulfilled. He has no absolute power of disposal. He cannot gift away the property in whole or in part in praesenti. Equally, he cannot transfer his undivided share by testamentary devise. He has however the power or the right to mortgage or sell the sons' interest in the property to pay off an antecedent debt or to meet a legal necessity. The question is whether the disposing power possessed by the father under these circumstances can come within the definition of property as given below:
96. The question did not arise in the case of Brij Narain Rai v. Mangal A.I.R. 1924 P.C. 50, and this decision is not helpful for the determination of the issue raised in the present case. A case is- an authority for what it decides and for nothing more.
97. There is a distinction between a power relating to a property and a right in the property. A right in the property may be carved out from the dominium either horizontally or vertically. Many of these rights are of the nature of jura in re aliena and are proprietary rights. They are rights in the property as distinguished from a power with reference to the same. When I speak of "power" I do not mean "power" in its technical sense which is a term of art in English jurisprudence.
'Power' technically is an authority reserved by, or limited to, a person to dispose of, either for his own benefit or for that of others. The word is used as a technical term and is distinct from the dominion which a man has over his own estate by virtue of ownership : Farewell on Powers, Edn. 2, p. 1.
98. There can however be no doubt that the power of the Hindu father, although not technically a "power" as defined above, has a close resemblance to it. It is not in any case a dominion over ownership. It is important to remember that the power is personal to the Hindu father. No other member of the joint family possesses the same power as he. In no other system of jurisprudence we come across a case similar to that of a Hindu father having rights of disposition over the property of the sons for the payment of his antecedent debts not tainted with immorality. The Provincial Insolvency Act is a general statute applicable to Hindus, Mahomedans, Christians, Buddhists and Sikhs. It must be presumed to proceed upon a common basis as regards the notion of property, and it is doubtful if the legislature could have intended to bring within the fold of the Act, and to treat the father's power to alienate as being equivalent to property.
99. If we turn to other systems of law, we do not get any materials for our safe and sure guidance. Vijnaneshwar, the author of Mitakshara does not attempt any technical or scientific definition of ownership. He enumerates property, explains the sources of acquisition but does not define property. Jimuta Vahana, the author of Dayabhaga, defines ownership as an absolute use of a thing according to the pleasure of the owner. This fits in with the Dayabhaga system of jurisprudence under which the father is the absolute owner of the property and the sons are not joint owners with him. Under the Roman law, dominium or proprietas is the aggregate of rights which constitute ownership. In the French Code property is the right of enjoying and disposing of things in the most absolute manner, provided they are not used in a way prohibited by the laws or statutes. In the New York Code the ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others "The thing of which there may be ownership is called property." , According to Wharton, property is the highest right a man can have to anything being used for that right which one has to lands or tenements, goods or chattels which does not depend on another's courtesy. Wharton subdivides property into absolute, qualified and possessory. According to Austin, property or ownership is the right over a determinate thing, indefinite in point of use, unrestrained in point of disposition and unlimited in point of duration.
100. It is clear from the above that the ' father's power of disposition cannot, without straining the language, be described as a right of ownership in the property under any of the systems noted above.
101. Williams in his Principles of the Law of Seal Property (24, Edn, 1926, p. 2) observes as follows:
Without pretending to formulate a definition, we may venture to assert that ownership chiefly imports the right of exclusive enjoyment of something .... Another incident of absolute ownership is free power of disposition, that is, the right of the owner to transfer as he will the whole or any part of his rights over the thing owned. And in modern times free power of disposition is generally incident to, and indeed inseparable from, any ownership.
102. According to Williams, one of the meanings of property is valuable things:
Things which can be turned into money or assessed at a money value; in other words rights which may be exchanged for the ownership of money.
He adds:
It is in this last sense that the word 'property' seems to be used when a man speaks of all his property or of his real as opposed to his personal property.
103. Property may be corporal or incorporated. The power of disposition of another's property (that is of the undivided interest of another in the joint property) is manifestly outside the definition.
104. The father has the power of disposition and he may exercise that power. Is he competent to sell that power and can the purchaser exercise the power on his own account? The answer is obvious and it must be in the negative.
105. The provisions of Sections 28 (2) and 2 (d), Prov. Insol. Act correspond to Sections 17 and 2 (e), Presidency Towns Insolvency Act (Act 3 of. 1909). The latter Act contained amongst others the following provisions:
Section 52 (2). Subject as aforesaid the property of the insolvent shall comprise the following particulars, viz . . . . (b) the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the insolvent for his own benefit at the commencement of his insolvency proceedings or before his discharge.
106. These sections have been construed by the Judical Committee in Sal Narain v. Behari Lal A.I.R. 1925 P.C. 18. The facts of the case which gave rise to this appeal lie within a very narrow compass and were as follows: Raj Bahadur Sri Kissen Das and his two sons were members of a joint Hindu family and were possessed of joint family property as coparceners Sri Kissen Das was adjudicated insolvent by the High Court of Bombay, and by Section 17, Presidency Towns Insolvency Act, his property vested in the Official Assignee and became divisible among his creditors. Of the property belonging to the joint family was a house in Delhi. One Lala Munnun Lal having sold his house in Delhi to Behari Lall and Jamna Das, one of the sons of the insolvent brought a suit for pre-emption under the Punjab Preempt on Act. The defendants contended that as the result of the insolvency of Sri Kissen Das who was the father of the plaintiff and the head and manager of the family, the whole of the family estate and effects as well as the right, title and interest of the insolvent, became vested in the Official Assignee of Bombay. After reviewing the case law to which their attention was drawn, their Lordships observed as follows:
Now as to the subject matter, namely the joint property of an undivided Hindu family, it is certainly a startling proposition that the insolvency of one member of the family should of itself and immediately take from the other male members of the family their interest in the joint family property and from the female members their right to maintenance, and transfer the whole estate to an assignee of the insolvent for the benefit of his creditors. The father's power to dispose of the joint property is not absolute, but conditional on his having debts which are liable to be satisfied out of that property and Section 2 seems to contemplate an absolute and unconditional power of disposal. And if the later sections of the Act are examined it becomes apparent that this cannot have been the intention of the statute....
107. The other sections which they examined are 52, 23 and 76. There is no section corresponding to Section 52 (2) (b) in the Provincial Insolvency Act, but the other portions of this section correspond to Section 28 (5) (4) and (3). Section 23 corresponds to Sections 37 (1), and 43(2), Provl. Insol. Act, and Section 76 correspond to Section 67, Provl. Insol. Act.
108. In view of the fact that the two Acts are in many respects in pari materia, that the sections in controversy are common to both and that the scheme and objective of the two Acts are also common, it is permissible to use the decision in Sat Narain v. Behari Lal A.I.R. 1925 P.C. 18 as an authoritative ruling for our guidance as to the interpretation of Section 28 (2) and (2) (d). The interpretation put upon the text of the Presidency Towns Insolvency Act has been followed in Allahabad Bank Ltd., Bareilly v. Bhagwan Das Johri A.I.R. 1926 All. 262 and in Tryam Kishore Prasad v. Basanta Kumar Mukerjee, A.I.R. 1930 Oudh 36. It has been held in these cases that the insolvency of a Hindu father did not vest the interest of the sons in the joint family property in the receiver. It cannot be said that the learned Judges who decided these cases did not give sufficient thought to the Privy Council ruling.
109. In Om. Praksah v. Moti Ram, which was decided by Sulaiman and Mukherjee, JJ., one of the learned Judges sought to distinguish the Privy Council ruling and observed as follows:
The question is whether the expression "property of the insolvent" means the property which the insolvent, as the father of his sons, was entitled to call his own and sell under certain circumstances or that share which goes to the father in the event of partition between himself and his sons. On the authority so long prevailing in this Court, we take it that the former meaning is the proper meaning of the word "property" as used there. I find nothing in the Privy Council case which shows that interpretation would be wrong.
110. No reason has been assigned for the view why the property of the insolvent should he construed to include the property of the sons who are not insolvents. Reference has been made to Official Assignee v. Ramchandran A.I.R. 1923 Mad. 55 and to " the authority so long prevailing in this Court" in support of this view. The only decisions of this High Court which have been referred to us are Bawandas v. O. M. Chine A.I.R. 1922 All. 179 and Sita Ram v. Beni Prasad A.I.R. 1925 All. 221. Neither of these cases is based upon the construction of the relevant sections of the Provincial Insolvency Act. In Bawandas's case A.I.R. 1922 All. 179 the learned Judges founded their decision upon the principle of Hindu Law that before partition the minor sons should be required to make provision for all debts due by the joint family including the debts due by the father. They follow the decisions in Fakir Chand v. Moti Chand [1883] 7 Bom. 438 and Bangala Chetty v. Thanikachala Mudali [1896] 19 Mad. 74. Neither of these two cases was founded upon the Provincial Insolvency Act. As pointed out by their " Lordships of the Judicial Committee these, cases were decided under a different statute, viz. 11 and 12 Victoria, Chap. 21. Their Lordships doubted the correctness of the interpretation of Section 7 of the said statute and observed as follows:
If their Lordships are to construe Section 7, 11 and 12 Victoria, Chap. 21, they would doubt that the Imperial Parliament sitting at Westminster, in passing 11 and 12 Victoria, Chap. 21, ever contemplated or intended that the real and personal estate of such petitioner which a Court might order to be vested in an Official Assignee or a right to sell it for the debts of a Hindu father might be held to include, or should include, the unpartitioned, separate interest of a Hindu coparcener, who was not a petitioner, in the immovable property of a joint family.
111. Sulaiman, J., also followed the same decisions in support of the view that the receiver in insolvency was competent to dispose of the joint family property in lieu of the debt of the father where the latter has been declared insolvent. The decision in Om Prakash v. Moti Ram has been followed by Mukherjee and Bennet, JJ, in Ram Ghulam v. Kailas Narain A.I.R. 1931 All. 59.
112. It is not necessary to review the rulings of the other High Courts. If there are any reasons for holding that the Privy Council did not decide the points in issue those reasons are capable of being definitely formulated. I have not been able to find any adequate grounds for not following the Privy Council decision.
113. In view of the text of Section 2 (d) and 28 (2) and the constructions put by the Privy Council upon the corresponding sections of the Presidency Towns Insolvency Act, I am clearly of opinion that question 1 should be answered in the negative. The property of the sons is not the property of the father who alone has been adjudicated insolvent, and that it does not vest in the Official Receiver (assuming that the debt was one which the son was under a pious obligation to discharge).
114. Now I take up point 2. There is nothing in the Provincial Insolvency Act which authorizes the receiver to seize the son's share in order to satisfy the debt payable by the father. The following points are worthy of consideration:
(1) Under Section 28 (2) the property which vests in the receiver is the property of the insolvent and not of the sons'.
(2) The so s are under a pious obligation to discharge the father's debt. The creditor is debarred from having any remedy against the property of the insolvent in respect of the debt but he is not precluded from recovering his money by a suit against, the sons who are strangers to the bankruptcy.
(3) The sons' interest in the joint family property is not property over which the insolvent father has an alsolute and unconditional power of disposition within the meaning of "property" defined in Section 2 (d) and as explained by the Privy Council. It is therefore not "the property of the insolvent" under Section 28 (2).
(4) It is pregnant with some significance that there is no section in the Provincial Insolvency Act corresponding to Section 52 (2) (b) according to which the property of the insolvent shall comprise:
the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the insolvent for his own benefit at the commencement of his insolvency or before his discharge.
(5) Under Section 59, Provl. Insol. Act, the powers and duties of the receiver have been enumerated, which include amongst others the power to sell all or any part of the property of the insolvent and to institute, defend or continue any suit or other legal proceedings relating to the property of the insolvent.
115. It is patent from the above that the receiver has not been clothed with any power to seize and sell the property of the son. But in Sat Narain's case A.I.R. 1925 P.C. 18 the Privy Council made the following observation:
Having regard to those considerations and to the scope of the Act, their Lordships are satisfied that it was not the intention of the Act that on the insolvency of a father, the joint property of his family-should at once vest in the assignee It may be that under the provisions of Section 52 or in some other way that property may in proper case be made available for payment of the father's just debts; but it is quite a different thing to say that by virtue of his insolvency alone it vests in the assignee, and no such provision should be read into the Act.
116. It has not been indicated what is the way in which the property of the son may be available to the receiver for the payment of the father's just debts. The Indian High Courts however have in a very large number of cases recognized the power of the receiver to attach and sell the interest of the son in joint family property. Although these decisions receive no support from the language of the statute they have held the field for over half a century. There is the further fact that there are no decisions to the contrary. Upon the principles of stare decisis it is not desirable to run against the current of these decisions.
117. It cannot be lost sight of that the receiver in insolvency represents the general body of creditors. The liability of the sons to discharge their father's debt, where it is not tainted with immorality, is not open to cavil or question. The Courts in India have uniformly allowed the receiver to enforce against the sons their pious obligation to pay by attachment and sale of their interest in the joint ancestral property. Section 4 (1), Prov. Insol. Act invests the Insolvency Court with very extensive powers to decide all questions which may arise in any case of insolvency to enable the Court to do complete justice or make a complete distribution of property.
118. The position therefore is that although the power of the receiver to attach and sell the son's property is not supported by the express text of the Provincial Insolvency Act, yet having regard to the general principles indicated above and the unbroken current of authority, I am of opinion that the answer to question 2 must be returned in the affirmative.
119. Question 3 does not call for a separate treatment.
Banerji, J.
120. The first question which has been referred to the Full Bench for decision is that when a joint Hindu father governed by the Mitakshara law is adjudicated an insolvent, whether his joint son's share vests in the receiver (assuming that the debt payable by the father is one which it is the pious duty of the son to pay).
121. I would answer the question in the negative and my reasons are that in the case of Sat Narain v. Behari Lal A.I.R. 1925 P.C. 18 their Lordships of the Privy Council in interpreting the definition of "property" in the Presidency Towns Insolvency Act (1909), which is word for word the same as the Provincial Insolvency Act said as follows:
And that by Section 2 'property' is defined as including any property over which any person has a disposing power which he may exercise for his own benefit; and it may be said that a Hindu father's power to sell the joint property and apply the proceeds to the payment of his debts is such a power.
122. But the definitions in Section 2 are only to apply "unless there is something repugnant in the subject or context", and it is necessary therefore to consider the effect of the definition of property" contained in that section in relation to the subject matter which is being dealt with and the other sections of the Act. Now; as to the subject matter, namely:
the joint property of an undivided 'Hindu family it is certainly a startling proposition that the insolvency of one member of the family should of itself and immediately take from the other male members of the family their interests in the joint property and from the female members their right to maintenance and transfer the whole estate to an assignee of the insolvent for the benefit of his creditors. The father's power to dispose of the joint property is not absolute, but conditional on his having debts which are liable to be satisfied out of that property; and Section 2 seems to contemplate an absolute and unconditional power of disposal.
123. The second question is whether it is open to the receiver in insolvency to seize the son's share and sell it in order to satisfy the debts payable by the father (assuming that the debt payable by the father is one which it is the pious duty of the son to pay).
124. I would answer this question in the affirmative. The question arises upon the particular facts of the case, namely that the debts are such that it is the pious duty of the son to pay them. "Under Section 28 (2), Prov. Insol. Act, it is provided that On the making of an order of adjudication the whole property of the insolvent shall vest in the Court.
125. The expression "the whole property of the insolvent" has in my opinion been very widely used, as appears from Clause (3), Section 28. Although the joint son's share does not vest in the receiver the rights of every kind, which an insolvent has and which can be turned into money for paying off the debts of the insolvent must, in my opinion, be deemed to vest in the receiver by reason of the words used in Section 28(1). It is not denied that a father in a case where the debt is such which it is the pious duty of his sons to pay, can dispose of the whole of the joint family property. Whatever may be the rights of the father to otherwise transfer the property is not before us and I confine myself to answering the question as referred to this Bench for decision.
126. The third question is if the receiver in insolvency cannot proceed against the son's share (in the aforesaid circumstances) has the receiver any and what remedy against the son's share in the joint family property?
127. The answer that I would give to this question is that in view of what my conclusion is as to question No. 2, this question does not arise. If the answer to question No, 2 is in the negative, then I would answer this question also in the negative.
King, J.
128. In considering the questions referred for our decision we have to bear in mind that we are dealing with a joint Hindu family consisting of a father (as manager) and his sons, and that the debts incurred by the father are untainted debts, such as the sons are under a pious obligation to pay; and that the father alone has been adjudicated an insolvent. Although the appeal arises from the adjudication of certain firms as insolvents, the order of reference makes no mention of firms. We are not called upon to consider the effect of the order of adjudication upon the interests of the minor sons in the firms with reference to Section 247, Contract Act, or to any other rule of law relating to firms or partners. We only have to consider the effect of the order upon the joint family property and especially upon the son's interests in that property.
129. The first question is in my opinion concluded by the authority of Sat Narain v. Behari Lal A.I.R. 1925 P.C. 18. Their Lord-hips held that the adjudication of the father of a joint Hindu family as an insolvent under the Presidency Towns Insolvency Act, 1909, did not have the effect of vesting the property of the joint family, consisting of the father and his sons, in the Official Assignee. The lights and interests of the sons in the joint family property did not vest in the assignee by virtue of the adjudication alone. The sons retained their proprietary interests in the property, so as to enable them to maintain a suit for preemption on the strength of their proprietary rights. It is true that this ruling was based, as their Lordships were careful to observe, strictly upon an interpretation of the Presidency Towns Insolvency Act, 1909, and mainly upon the interpretation of Sections 2 (e), 17 and 52 of that Act. We have to interpret the Provincial Insolvency Act, 1920; but the language of the relevant sections of the two Acts is so similar that the reasons for the decision seem to apply with equal force to the latter Act. . The definition of " property " in Section 2 (1) (d) of the latter Act is word for word the same as in Section 2 (e) of the former Act. Section 28 (2) of the latter Act is practically identical with 3. 17 of the former. It must be noted that there is nothing in the latter Act corresponding to Section 52 (2) (b), Presidency Towns Act but I cannot see that this omission furnishes any ground for holding that the ruling does not apply to the Provincial Act. This view has been taken in numerous decisions referred to by my learned brothers. I need only refer to the Full Bench ruling of the Madras High Court in Seetharama Chettiar v. Official Receiver, Tanjore A.I.R. 1926 Mad. 994 and think it unnecessary to labour the point any further. I hold therefore that the shares of the sons (i. e. the proprietary rights of the sons) do not vest in the receiver under Section 28 (2) as being " the property of the insolvent."
130. The second question is whether it is open to the receiver to seize . the sons' share and sell it in order to satisfy the debts payable by the father. This is a question which has expressly been left undecided in Sat Narain's case A.I.R. 1925 P.C. 18 and it is more difficult to determine. Their Lordships suggested that " under the provisions of Section 52 or in some other way" the property of the sons might be made available for payment of the father'e just debts. The reference to Section 52 was apparently intended to refer more particularly to Section 52 (2) (b) which lays down that the property of the insolvent divisible amongst his creditors shall comprise The capacity to exercise and to take proceedings for exercising all such powers in or over or in respect or property as might have been exercised by the insolvent for his own benefit at the commencement of his insolvency or before his discharge.
131. The father has power to alienate the joint family property, so as to bind the sons, if the alienation is for the discharge of an antecedent untainted debt. This power seems to be covered by the terms of Section 52 (2) (h), but there is nothing corresponding to this provision in the Provincial Act.
132. The question then is whether the father's power of disposal of the joint family property can be held to he included in " the property of the insolvent " which vests in the receiver under Section 28 (2).
133. The term "property" has, or may have, a very wide meaning. In construing the words ' the whole of the property of the insolvent," I think we should be justified in including any valuable right belonging to the insolvent, i. e. any right which the insolvent could exercise so as to raise money for his own benefit. This would include the father's right to sell the joint family property for the discharge of his personal debts if antecedent and untainted as in the case before us. The notion that the " property " of a person includes a power of disposal of property which does not belong to him, or which does not wholly belong to him, is nothing new or strange. In Section 60 (1), Civil P.C. of 1908, the property of a judgment-debtor, which is liable to attachment and sale, is defined as including property:
over which, or the profits of which, he has a disposing power which ho may exercise for his own benefit.
134. This shows that a certain kind of disposing power over property is regarded as a sort of proprietary right. In Section 2 (1) (d), Provl. Insol. Act, 1920 " property " is defined as including:
any property over which or the profits of which any person has a disposing power which he may exercise for his own benefit.
135. The same definition is given in the Presidency Towns Insolvency Act.
136. In Sat Narain's case A.I.R. 1925 P.C. 18 their Lordships have held that this definition contemplates an absolute and unconditional power of disposal and therefore does not cover a Hindu father's power of disposal which is conditional.
137. It is true that in the case propounded to us the conditions necessary for an absolute power of disposal are fulfilled. The debts are antecedent and untainted and the father has therefore an absolute power to sell the joint family property for the purpose of discharging them. We cannot however hold that, as the father's power of disposal is " absolute " in the present case, therefore, the property over which he exercised that power is his property under the definition of " property " in Section 2 (1) (d). The result of holding this would be that the property itself (i. e. the whole joint family property including the interests of the sons) must vest in the receiver under Section 28 (2). I have already held that this view is untenable in the face of the ruling in Sat Narain's case A.I.R. 1925 P.C. 18. We cannot therefore invoke the aid of the definition in Section 2 (1) (d) as applying in terms to the father's power of disposal. The definition is only helpful to this extent, that it shows that a certain kind of power of disposal of property is regarded as a species of a proprietary right.
138. Section 52 (2) (b), Presidency Towns Insolvency Act, goes further and shows that a certain kind of power of disposal to property may he regarded not merely as a kind of proprietary right but as " property."
139. In the law of England also a bankrupt's property" is described as including the capacity to exercise all such powers over property as might have been exercised by the bankrupt for his own benefit : Bankruptcy Act 1914, Section 38 (2) (b).
140. I see no reason why the term "property," when applied to the property of the father of a Hindu joint family should not be wide enough to cover the father's power of disposal of the family property for discharge of his antecedent untainted debts. It must be remembered that the father's power of disposal of his own undivided share is no greater than his power of disposing of the entire coparcernary property. His undivided share only belongs to him in the sense that it would fall to his share in the event of a partition. I doubt whether his undivided share can properly be said to be "vested" in him. The share is indefinite and fluctuating in extent. The ownership of the coparcenary property is vested in the whole body of coparcerners. No individual member can claim that he has a definite share. The father's power of disposal of his undivided share is conspicuous by its absence. He cannot dispose of it by gift or by will. On his death intestate it does not pass to his heirs. He cannot even alienate it for value without the consent of his coparcernars. In short, his power of dealing with his undivided share is no greater thin his power of dealing with the coparcenary property as a whole. Considering that the father can only be said to own" his undivided share in a very limited sense, and that he has no special power of disposing of that share, I think it would be very anomalous if only his undivided share vests in the receiver while his very valuable right and power of disposing of the joint family property for discharging his personal debts, does not so vest. I think we are fully justified in holding that his 'property" includes his power of disposal of the joint family property and that power therefore vests in the receiver under Section 28 (2). several rulings support this view and I would follow and endorse the reasoning in Subramania Aiyar v. T. V. Krishna Aiyar A.I.R. 1927 Mad. 701.
141. On the other grounds too I think this must have been the intention of the legislature. The receiver represents the insolvent. Any valuable right which the insolvent could have exercised for discharging his debts should be exercisable by the receiver as the insolvent's representative.
142. Then again the receiver represents the interests of the creditors and stands in much the same position as a judgment-creditor. Now the holder of a simple money decree against the father, for an untainted debt, can (apart from insolvency) attach and sell the joint family property so as to bind the sons. The receiver should not be in a worse position than a decree-holder of a money decree; and it would be unjust if the creditors were deprived, by the operation of the law of insolvency, of recourse to the family property which would otherwise have bean available for the satisfaction of their claims.
143. Owing to the absence of anything corresponding to Section 52 (2) (b). Presidency Towns Act, it is argued that the legislature did not intend that the father's power of disposal should under the Provincial Insolvency Act be included in the property divisible amongst the creditors. I must frankly confess that I do not understand why that provision should be considered necessary in Presidency towns and not in the provinces, but I cannot believe that the legislature intended that the Official Assignee might sell the joint family property in Presidency towns, while the receiver could not do so in the provinces. It may be that any provision corresponding to Section 52 (2) (b) was considered superfluous as the term ''property" was sufficiently wide to include such a power of disposal.
144. Putting the case at its very lowest there is at least a doubt whether the term "property" in Section 28 (2) does not include the father's power of disposal of the joint family property. If there is a doubt we are entitled to act upon the maxim stare decisis and follow the long-established current of decisions which lay down that the receiver is entitled to sell the joint family property for discharging the insolvent father's debts. I answer the second question in the affirmative. In view my of answer to the second question, the third question does not arise.
Kendall, J.
145. I agree.