LexCHERUVU NAGESWARASWAMI versus RAJAH VADREVU VISWASUNDARA RAO AND OTHERS
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• 1953 May 18. 894 SUPREME COUR'f REPOR'l'S [1953) UHERUVU NAGESWARASWAMI v. RAJAH VADREVU VISW'ASUNDARA RAO AND OTHERS ME!fR CHAND MAHA.JAN, MuKHERJEA, GnuLAill HASAN AND BHAGWATI JJ. Hindu law-Debts-Father's power to alienC<te sons' interest for antecedent debts-Whether 'property' and passes to Receiver on insolvency of father-Sale by Recei·ver, whether vests sons' interest in purchaser-Provincial InsoZ.Vency Act, 1920, as amended in 1948, s. 28A--Retrospective operation-Nadras Agricultnrists' Relief Act, 1938, ss. 7, 8-Pnrchaser of eq•dty of redcmption- Right tv claim relief. Under the provisions of s. 28A of the Provincial Insolvency Aot, 1920, as amended by the Provincial Insolvency (Amendment) Act of 1948, which bas been expressly made retrospective, when a Hindu father governed by the :\Iitakshara law is adjndged a bankrupt, his power to alienate the interest of bis sons in the joint family properties for che satis(action of his antecedent debts not contracted for illeg•l or immornl purposes, passes to the Receiver as his "property" within the meaning of the Act. Consequently, where a Hindu father who has mortgaged the joint family property for an antecedent debt which is not illegal or immoral becomes insolvent ancl the receiver sells the property, the interest of his sons in the property also vests in the purchaser, even in the case of a sale held before the Amendment Act of 1948 came into force, and the sons cannot redee1n the property. Sat Narain v. Sri Xishen (63 LA. 384), Rama Sastruln v. Balltkrislma Rao (I. L. l'.. 1943 )fad. 83) and Viswanath v. Official Receiver (I.L.R. 16 Pat. 60) referred to.• Though the liability of a person who has purchase<l an er1uity of redemption after 22nd )farch, 1938, to 11ay the mort- gage debt arises only on the date of his purchase, ii the debt itself existed on the 22nd ;\Jarch, 1938, and if it was payable by an agriculturist on that date, the purchaser can clahn the bene- fits conferred by s. 7 of the Madras Agricultural Relief Act, 1938, if he himself \vas an agriculturist on the date of his appli- cation. Perianna v. Sellappa (LL.IL 1939 )lad. 218) referred to. CrvrL APPELLA~'E JURISDICTION: Civil Appeal No. 76 of 1950. Appeal from the Judgment and Decree of the High Court of Madras dated 18th April 1945, in • • s.c.R. SUPREME COVRT REPORTS 895 1953 Oheruvu Appeals Nos. 56 and 192of1941 reversing in part the decree of the Court of the Subordinate Judge of Masulipatam in Original Suit No. 29 of 1937. N ageswa"'aswanii B. Somayya (C. J11allikaijnna Row, with him) v. th ]] t Raja V adtevu 10r e ap1)e an . 1,. a • • iswasun (f?'t~ K. Rajah Aiyar (R. Ga1111p((,thy Aiya.r, with him) HaoandOrhm for Respondent No. 1. Respondent No. 10 appeared in pernon . 1953. May 18. The Judgment of the Court was delivered by MUKHER.JEA J.- -The appellant before us is the sixth defendant in a suit, commenced by the plaintiff-res- pondent in the court of the Subordinate Judge at Masulipatam (being Original Suit No. 29 of 1937) for recovery of a sum of Rs. 99,653 annas odd by enforce- ment of a simple mortgage bond. The mortgage bond is dated 28th September, 1930, and it was executed by defendant No. 1 for himself and as guardian of his two minor sons-- -defendants 2 and 3-all of whom consti- tuted together a joint Hindu family at that time. The plaintiff mortgagee happens to be the son-in-law of defendant No. 1 and at the time of the execution of the mortgage the first defendant was indebted to a large number of persons including the mortgagee him- self, and being hard pressed by his creditors requested the plaintiff to lend him a sum of Rs. 1,25,000 on the hypothecation of the properties in suit, to enable him to tide over his difficulties and discharge his debts. The total consideration of Rs. 1,25,000 as stated in the deed is made up of the following items :- ( l) Rs. 13,065, which was the amount due on a promissory note executed in favour of the plaintiff by the first defendant on the 17th January, 1928. (2) Rs. 13,285 due under another promissory note dated 18th August, 1930 executed by defendant No. 1 in favour of the wife of the plaintiff and later on trans- ferred by her to the plaintiff on 28th September, 30. Mukherjea .T. (3) Rs. 25,000 paid by the plaintiff by endorsing in favour of defenda,nt No. 1 a cheque for that amount • 896 SLTPREME COURT REPORTS [1953] · w.13 drawn in hi
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