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PETITIONER: RAGHUNATH KESHAVA KHARKAR

       Vs.

RESPONDENT: GANESH AND OTHERS

DATE OF JUDGMENT: 02/05/1963

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS

CITATION:  1964 AIR  234            1964 SCR  (3) 520

ACT:      Insolvency-Devolution   of  property  on   undischarged insolvent-Suit for possession after absolute discharge-Main- tainability-Provincial Insolvency Act, 1920(5 of 1920),  ss. 28  (4),37,42,44,67  will-Construction-Appeal  when   cannot abate as a whole.

HEADNOTE:       The  appellant, a Hindu reversioner, brought  the  suit out  of  which  the appeal arose  for  recovery  of  certain properties  alienated by two widows having  widow’s  estates under  the will of their husband.  The respondents  resisted the  suit mainly on the grounds that the appellant, who  was an undischarged insolvent at the time the succession opened, could  not  maintain  the  suit  even  after  his   absolute discharge as the properties must be taken to have vested  in the  official  receiver  and that under the  will  of  their husband the widows got not a widow’s estate but an absolute estate and had the right to  alienate the  properties  which they did.  The trial court  found  in favour of the appellant and directed delivery of  possession of the properties to him.  On appeal the High Court took the contrary  view  on both the points and dismissed  the  suit. The  appellant  came  up to this Court  on  the  certificate granted by the High Court.      Held  that the High Court was in error in-holding  that the appellant could not maintain the suit.  There is nothing in  the Provincial Insolvency Act that takes away the  right of  the  insolvent to sue in courts after he  is  granted  a discharge  for he then becomes a free man.  Though there  is no  specific  provision  in  the Act  with  respect  to  the property  that may remain undisposed of by the court  or  by the   receiver,  the  provisions  in  s.  67  by   necessary implication  read in the light of the general scheme of  the Act provides an answer to this and all such property must be treated as surplus to which an insolvent is entitled,  after an  absolute  order  of discharge is  made  in  his  favour, subject  always to the condition that if any debts  provable under the Act have not been discharged before such order,  521 the  property will remain liable for such discharge as  also

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the expenses of all proceedings under the Act till they  are fully met.      Cohen  v. Mitchel, (I 890) 25 Q. B. D. 262; Sayad  Daud Sayed Mahomed v. Mulna Mahomed Sayad, (1926) 28 Bom.  L.  R. 334;  Yellavajjhula Suraya v. Tummalapali  Mangayya,  A.I.R. (1941)  Mad. 345, Rup Narain Singh v. Har Gopal Tewari,  ’I. L.  R.  (1933),  53 All. 503; Diwan Chand  v.  Manak  Chand, A.I.R.  (1934)  Lah.  809;  Arjun  Das  Kundu  v.  Marchhiya Tolinee,  I.L.R. (1937) 1 Cal. 127; Kanshi Ram v. Hari  Ram, A. I .R. (1937) Lah. 87 and Parsu v. Balaji, I.L.R. (I  944) Nag. 14, discussed.      In order to determine the true intention of a testator, the  clauses  of the will should be read as a whole  in  the light  of the surrounding circumstances as also in  contrast to  the  other  clauses and where the testator,  as  in  the instant  case, having used the word owner’ in  the  previous clause,  follows up by using the words "during her  lifetime enjoy  as  owner  the income in any manner  she  likes"  the latter  words  clearly limit the bequest and  indicate  that what is given is no more than a life estate.      Where  the  interests  of  the  various  defendants  in possession of various properties are independent, the appeal cannot abate as a whole by reason of the heirs of a deceased defendant  in  possession  of a  property  not  having  been brought on the record within the prescribed time.

JUDGMENT:      CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  98  of 1962.      Appeal  from  the judgment and decree  dated  March  7, 1957, of the Bombay High Court in First Appeals Nos. 897  of 1951 and 66 of 1952.      S.   S. Shukla for the appellant.      G.   B. Pai, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for respondents Nos. 1, 3 and 7.      A.V.  Viswanatha  Sastri and  Sardar  Baliadur,  for respondent No. 2. 522      1963.   May 2. The judgment of the Court was  delivered by       WANCHOO J.-This is an appeal on a certificate  granted by  the Bombay High Court and arises out of a suit filed  by the  appellant as a Hindu reversioner to recover  possession of  properties alienated by a Hindu widow.  The property  in suit was the self-acquired property of one  Ganpatrao-jairam who died in 1894 leaving behind two widows, Annapurnabai and Sarswatibai.   Ganpatrao  had  executed  a  will  by   which property  in village Dahisar was given to  Annapurnabai  and property  in village Nagaon was given to  Sarswatibai.   The will  further provided that a dwelling house  together  with structures and open land situate at Thana would remain  with his  two wives who would enjoy the same.  There  were  other dispositions  in  the  will with which we  are  however  not concerned now.  Annapurnabai was also authorised to make  an adoption on the advice of the executors appointed under  the will; but the adopted son was to have no right or connection with   the  movable  and  immovable  property   devised   to Annapurnabai  during  her  life-time and  was  to  take  the property  devised to her only after her death.  The  adopted son  was also to take the immovable property  bequeathed  to Saraswatibai  after her death.  It may be added that no  son was  adopted by Annapurnabai and this aspect of  the  matter therefore need not be considered further.  Annapurnabai died

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on  September 17, 1915, and she had executed a  will  before her  death.  After Annapurnabai’s death, Saraswatibai  began to  manage the property.  It may be added  that  Sarswatibai had adopted    a    son, but this  was saidto beagainst the  provision    in the will of herhusband        which specifically    directed  that  she  could  only  adopt   if Annapumabai died without making an adoption from amongst the family      on  the  advice of  the  executors.   There  was therefore  523 litigation   in  connection  with    the   adoption   between Saraswatibai and Balkrishna Waman, one of the legatees under the  will of Ganpatrao, which ended in favour of  Balkrishna Waman.  Saraswatibai died in 1943.      The  case  of  the  appellant  was  that  the  will  of Ganpatrao  merely  gave widow’s estate to  Annapurnabai  and Saraswatibai.   Consequently Annapurnabai could not  dispose of  the property given to her by will and the bequests  made by  her  were  not  binding on the  appellant  as  the  next reversioner.   It  was also alleged that the  will  made  by Annapurnabai was vitiated by the exercise of undue influence brought  to  bear on her by Balkrishna Waman,  who  was  the husband  of  her  niece.   Saraswatibai  also  made  certain alienations  and  the appellant contended that the  sale  by Saraswatibai was due to the undue influence exercised on her by  Balkrishna  Waman, and in any case there  was  no  legal necessity  for transfer and therefore the transfer  was  not binding  on the appellant.  The main defendant in  the  suit was  Ganesh, a son of Balkrishna Waman.  In  addition  there were twelve other defendants who were alienees in possession of the property and were joined in the suit as the appellant prayed for recovery of possession from them also.      The suit was resisted by the main defendant Ganesh  for two main reasons.  It was first contended that the appellant was an undischarged insolvent at the time succession  opened in 1943 and therefore whatever property might come to him as a  reversioner vested in the official receiver.   Therefore, the  appellant  had  no right to bring  a  suit  to  recover possession  even  after his absolute discharge  because  the property  never vested in him.  Secondly, it  was  contended that by his will Ganpatrao had granted an absolute estate to the two widows and therefore 524 Annapurnabai  had full right to make a will with respect  to the  property given to her and Sarswatibai had the right  to make alienations if she thought fit.  Besides these two main defences,  it was also contended that the appellant was  not the   nearest  reversioner  and  the  alienations  made   by Sarswatibai were for legal necessity.  The same defence  was raised  by the other defendants.  In addition  the  alienees from  Sarswatibai  contended that they were bona  fide  pur- chasers  for  value without notice of the  defect  in  their vendor’s  title and therefore the alienations made in  their favour  could not be set aside.  They further  pleaded  that they  had  made substantial improvements on  the  properties purchased by them.      On  these  pleadings as many as  eighteen  issues  were framed by the trial court.  Two of these issues covered  the two main defences which were raised, namely,               (1)   Is  the plaintiff entitled  to  maintain               the  suit due to his insolvency as alleged  by               the defendants?               (3)   Had  Annapurnabai no authority  to  will               away the properties in her possession? The-  trial  court held that the plaintiff was  entitled  to

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maintain  the  suit.  The third issue obviously  raised  the question  whether  the bequest to Annapurnabai was  that  of widow’s  estate or an absolute bequest, and the trial  court held in that connection that the bequest to Annapurnabai was that  of  widow’s estate and therefore she had no  right  to will away the properties in her possession.  The trial court also  gave  findings  on the remaining  issues  and  finally declared that the alienations made by Saraswatibai on  March 29,  1930 and April 16, 1935 were not for  legal  necesssity and  therefore  were not binding on the  appellant  and  the defendants of the suit were directed to deliver  525 possession of the suit properties to the appellant.  Inquiry as  to  mesne profits was also directed and Rd  finally  the trial court ordered that notice be given to the receiver  in the insolvency application No. 48 of 1939 to consider if  he wanted  the property to be made available  for  distribution amongst creditors in the aforementioned application.      The  defendants then went in appeal to the  High  Court and  two  separate  appeals  were  filed  one  by   original defendant  No. 3 and the other by original defendant  No.  I and some others.  The two appeals were heard together by the High  Court  and the two principal  questions  which  arose, according to the High Court, were as to-               (i)   the  effect of the dispositions made  by               Ganpatrao under his will, and               (ii)  the  right of the plaintiff to  maintain               the  suit  when he was, at the date  when  the               succession opened, an undischarged insolvent, These two questions, it will be seen, correspond to the  two issues  raised  by the trial court, which we  have  set  out above.   The  High Court first considered the right  of  the plaintiff  to maintain the suit and held that the  plaintiff had no right to maintain the suit, as he was an undischarged insolvent at the time the succession opened and he could not maintain  the suit even after his absolute  discharge.   The High  Court further held that the disposition in  favour  of Annapurnabai   of  the  property  in  Dahisar  amounted   to conferment  of absolute estate on her and further  that  the disposition  in  favour of Saraswatibai of the  property  in Nagaon amounted to conferment of absolute estate on her.  On these findings the High Court dismissed the suit.  Thereupon the appellant applied for a. certificate which was  granted; and that is how the matter has come up before us. 526      The  first  question that falls  for  consideration  is whether  the  appellant  can  maintain  the  suit.   It   is necessary in that connection to see what the facts are  with respect  to the insolvency of the appellant.  The  appellant had filed an insolvency application in 1939 and was adjudged insolvent  on March 11, 1940 and two years time was  granted to  him to apply for discharge.  The appellant  applied  for discharge  on  July 6, 1942 and he was granted  an  absolute discharge in January, 1944.  The succession to the estate of Ganpatrao  had  however  opened  on May  4,  1943  when  the appellant    was    still   an    undischarged    insolvent. Consequently,  the  case of the  defendants-respondents  was that under s. 28 (4) of the Provincial Insolvency Act, No. 5 of 1920, (hereinafter referred to as the Act), the  property which devolved on the insolvent after the date of the  order of adjudication and before his discharge forthwith vested in the  court  or  receiver.   It is  further  urged  that  the property  having  vested in the court or  receiver  it  must remain  so vested even after the absolute discharge  of  the appellant  for  the  order  of  absolute  discharge   merely

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absolved the insolvent from liability from payment of  debts other  than those mentioned in s. 44 of the Act.   Therefore when  the suit was brought in 1947 after the  discharge  the appellant  had no title in the property as the  title  still vested  in  the  court or  receiver,  and  consequently  the appellant could not maintain the suit for ejectment  against those  in possession of the property as he had no  title  on which he could base his right to sue for ejectment.      The question therefore that arises for determination is whether an insolvent on whom property devolves when he is an undischarged insolvent can maintain a suit for the  recovery of the property after his absolute discharge.  The  decision of  that  depends  on  what effect  the  order  of  absolute discharge has on the insolvent’s title to the property  527 which  develoved  on him when he was still  an  undischarged insolvent.  It is to this narrow question, (namely,  whether a suit brought by an insolvent after his absolute  discharge with  respect to property which devolved on him when he  was an undischarged insolvent can be maintained by him), that we -address  ourselves  hereafter.   In  view  of  this  narrow question it is in our opinion unnecessary to consider  those cases on some of which the High Court has relied which  deal with the, right of the insolvent to maintain a suit while he is  still  an insolvent.  What we say  hereafter  will  only apply  to a case where the suit is brought by  an  insolvent after  his absolute discharge, though the right to  property which is in suit devolved on him when he was an undischarged insolvent.      It  will  be necessary in this connection  to  consider briefly  the scheme of the Act, to decide exactly  what  the consequences are when an absolute discharge is granted to an insolvent.   Section 6 of the Act defines what are  acts  of insolvency.  Section 7 gives power to a debtor or a creditor to  make  an application for insolvency, if the  debtor  has committed  an  act  of insolvency.   Section  9  deals  with applications  made by creditors and section 10  by  debtors. Section  19  provides  for  the  procedure  for  hearing  an insolvency petition.  Sections 20 and 21 provide for interim proceedings against the debtor and appointment of an interim receiver.  Section 25 provides for dismissal of the petition on grounds mentioned therein  Section 27 gives power to  the court  to make an order of adjudication and the  Court  also has  to  fix a time therein within which  the  debtor  shall apply for his discharge.      Section 28 with which we are mainly concerned lays down the  effect  of an order of adjudication.   Sub-section  (2) thereof  provides  that  on  the  making  of  an  order   of adjudication, the whole of the property 528 of  the insolvent shall vest in the court or in  a  receiver and shall become divisible among the creditors  Under sub-s. (7)  this vesting will relate back to and take  effect  from the  date of the presentation of the petition on  which  the order  of  adjudication is made.  Sub-section (4)  which  is also material lays down that "all property which is acquired by  or devolves on the insolvent after the date of an  order of  adjudication  and before his discharge  shall  forthwith vest in the court or receiver, and the provisions of  sub-s. (2)  shall  apply  in  respect  thereof."  This  sub-section undoubtedly  vests - in) the court or receiver any  property which the insolvent acquires after the order of adjudication and  before  his discharge or which devolves on him  in  any manner,  and such vesting takes place forthwith  Section  33 provides  for the making  of a schedule of  creditors  after

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the order of adjudication and s. 34 lays down what debts are provable  under  the  Act.   Section  56  provides  for  the appointment of a receiver and s. 59 lays down the duties and powers of the receiver  Scction 61 provides for priority  of debts  and s. 62 for calculation of dividends.   Section  64 lays  down  that  when the receiver  has  realised  all  the property of the insolvent or so much thereof as can, in  the opinion  of  the  court,  be  realised  without   needlessly protracting  the  receivership,  he shall  declare  a  final dividend.   But  before doing so, the receiver has  to  give notice  to  persons  whose claims  as  creditors  have  been notified  but  not proved, that if they do not  prove  their claims  within  the  time limited by  the  notice,  he  will proceed  to  make a final dividend without regard  to  their claims.  After the expiration of such time, the property  of the insolvent shall be divided amongst the creditors entered in  the schedule without regard to the claims of  any  other persons.  Then comes s. 67 which lays down that "’the insol- vent  shall  be  entitled to  any  surplus  remaining  after payment in full of his creditors with interest as  529 provided by this Act, and of the expenses of the proceedings taken thereunder."      It is clear from this scheme of the Act that the entire property  of the insolvent belonging to him on the date  the petition for insolvency is made vests in the receiver  under s.  28  (2).   Further under s. 28 (4) if  any  property  is acquired by the insolvent or devolves on him after the order of  adjudication and before he is discharged, that  property also vests in the court or receiver forthwith.  The receiver has  to administer the property so vested in him and he  has the  power  to sell the property and do various  other  acts provided  in s. 59 for the purpose of the administration  of the  property.   Generally speaking the receiver  sells  the property  which vests in him and then distributes the  money amongst  the  creditors who have proved  their  debts.   But before  the receiver declares the final dividend he  has  to give one more opportunity under s. 64 to creditors who might not  have proved their debts at the earlier stage,  to  come and prove their debts.  This will generally happen when  all the  property of the insolvent has been disposed of  by  the receiver, though s. 64 contemplates that the final  dividend may be declared even if some property has not been  disposed of  when  in  the opinion of the court  it  will  needlessly protract the receivership.  Section 67 then finally provides that  if  any surplus is left in the hands of  the  receiver after payment in full to the creditors with interest and  of the  expenses of the proceedings under the Act, the  surplus is  to be paid to the insolvent.  As we have  said  already, the  final  dividend  is generally declared  after  all  the property  of the insolvent is disposed of but there  may  be cases  when  a final dividend may be  declared  without  the disposition  of all the property of the insolvent if in  the opinion  of  the  court  that  would  result  in  needlessly protracting the receivership.  But it is clear that under s. 67 if there is 530 any  surplus  remaining in the hands of  the  receiver  that surplus has to go to the insolvent.      Though  this  is  the general scheme of  the  Act  with reference  to administration of property which vests in  the receiver  after  an  order of adjudication,  there  are  two exceptions  which may be noticed.  Section 35 provides  that where,  in the opinion of the court, a debtor ought  not  to have  been adjudged insolvent, or where it is proved to  the

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satisfaction  of the court that the debts of  the  insolvent have been paid in full, the court shall, on the  application of  the debtor, or of any other person interested, by  order in  writing,  annul  the  adjudication.   Section  37   then provides that "where an adjudication is annulled, all  sales and dispositions of property and payments duly made, and all acts  therefore  done, by the court or  receiver,  shall  be valid  ;  but,  subject as aforesaid, the  property  of  the debtor who was adjudged insolvent shall vest in such  person as  the court may appoint, or, in default ’of such  appoint- ment, shall revert to the debtor to the extent of his  right or interest therein on such conditions (if any) as the court may, by order in writing, declare." Special stress has  been laid on behalf of the respondents on the provision in s.  37 which specifically lays down that the property of the debtor in case of annulment shall vest in such person as the  court may  appoint or in default of such appointment shall  revert to  the debtor, thus divesting the court or the receiver  of the property which had vested in them under s. 28 (2) or  s. 28 (4).      The  second  exception is to be found in  s.  38  which allows compositions and schemes of arrangement.  Section  39 then provides that if the court approves the composition  or the  scheme of arrangement, the terms shall be  embodied  in the  order of the court and the order of adjudication  shall be annulled and the provisions of s. 37 shall apply to  such annulment.  531      Lastly, we come to what happens where the estate of the insolvent  has been administered in the usual way  which  we have  set out already.  Section 41 authorises the debtor  to apply for an order of discharge.  On such an application the court  has  to consider the objection, if any, made  by  any creditor  and  also  the report of the receiver  in  case  a receiver has been appointed and thereafter the court may-               (a)   grant  or  refuse an absolute  order  of               discharge ; or               (b)   suspend the operation of the order for a               specified time ; or               (c)   grant  an order of discharge  subject.to               any conditions with respect to any earnings or               income which may afterwards become due to  the               insolvent,  or  with  respect  to  his  after-               acquired property. Section  42 then lays down in what circumstances the  court, shall  refuse to grant an absolute order of discharge ;  and we may refer to only cl. (a) of s. 42 (1) in that connection which  gives  power  to  the court to  refuse  to  grant  an absolute order of discharge if it finds that the insolvent’s assets are not of a value equal -to eight annas in the rupee on  the amount of his unsecured liabilities, unless the  in- solvent  satisfies the court that the fact that  the  assets are not of a value equal to eight annas in the rupee on  the amount   of  his  unsecured  liabilities  has  arisen   from circumstances   for   which  he  cannot   justly   be   held responsible.   Section 43 provides that if the  debtor  does not  apply  for  discharge within the period  fixed  by  the court,  or does not appear on the day fixed for hearing  his application for discharge, the court may annul the order  of adjudication  or make such other order as it may think  fit, and if the adjudication is so annulled, the provisions 532 of  s.  37 shall apply.  Section 44 then  provides  for  the effect  of the order of discharge.  Sub-section (1)  thereof mentions  the  debts from which the insolvent  will  not  be

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released  on  an order of discharge.   Subsection  (2)  then provides  that  "save as otherwise provided  by  sub-section (I.), an order of discharge shall release the insolvent from all debts provable under this Act." Stress is laid on behalf of  the respondents on this provision and it is  urged  that though  sub-s.  (2)  provides that the  insolvent  shall  be released from all debts provable under the Act, it does  not provide  for revesting any property in the insolvent  on  an order of discharge.      It  is  thus  clear  from the  above  analysis  of  the provisions  of the Act that if there is no annulment of  the adjudication  and no sanction of a composition or scheme  of arrangement  resulting in an order of annulment,  insolvency proceedings terminate generally after the administration  of the properties is complete and a discharge is granted.   The discharge  may  be absolute in which case  the  consequences mentioned  in s. 44 (2) apply.  On the other hand  discharge may be conditional in which case also the consequences of s. 44  (2)  apply  subject to the conditions  attached  to  the discharge in accordance with sub-s. 41 (2) (c).  Further  in considering whether an absolute order of discharge should be granted  or not. the court has to -consider whether the  in- solvent’s assets are of a value equal to eight annas in  the rupee  on the amount of his unsecured liabilities.   Further before  granting a discharge the court has to  consider  the report of the receiver if one is appointed.  It is therefore reasonable  to  think that generally speaking  an  order  of discharge  will only be made after the court has  considered the report of the receiver and has also considered that  the assets  of  the insolvent-; are of a value  equal  to  eight annas   in  the  rupee  on  the  amount  of  his   unsecured liabilities.  It is also not unreasonable  533 to  think  in view of all the provisions that  no  order  of discharge will generally be made till all the assets of  the insolvent  are  realised, (see s. 64), though,  as  we  have already  pointed  out,  it is possible to  declare  a  final dividend  even though all the property of the insolvent  has not  been  realised  if in the opinion  of  the  court  such realisation would needlessly protract the receivership.   In such a case however the court would generally pass an  order protecting  the interests of the creditors with  respect  to the property which has not been realised before the order of discharge.   Finally there is s. 67, which provides that  if there is any surplus remaining after payment in full of  his creditors   with  interest  and  of  the  expenses  of   the proceedings  taken  under  the  Act,  it  shall  go  to  the insolvent.      The  key to the solution of the narrow  question  posed before  us  is in our opinion to be found in s. 67.   It  is true that s. 44 when it provides for the consequences of  an order  of discharge does not lay down that any  property  of the insolvent remaining undisposed of will revest in him and to  that extent it is in contrast to s. 37,  which  provides for  the effect of an order of annulment and in effect  lays down that all sales and dispositions of property made by the receiver  shall  be  valid,  but  if  any  property  remains undisposed of it shall vest in such person as the court  may appoint or in default of any appointment shall revert to the debtor-insolvent.   The  reason why s. 44 has  not  provided specifically for the reversion of undisposed property to the insolvent  obviously is that the scheme of the Act does  not contemplate  where there is no annulment that  any  property which vested in the receiver would remain undisposed of.  It as s. 74 shows the final dividend is generally declared when

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he  receiver has realised all the property of the  insolvent there would be no property left unadministered usually  when an  order  of discharge comes to be passed.  It  is  however urged on behalf of the respondents 534 that  there  is nothing in ss. 41 and 42 to suggest  that  a discharge  can  only be granted after a  final  dividend  is declared   and   therefore   there  may   be   cases   where administration  by  the  receiver  may  still  go  on  after discharge has been ordered.  This argument, in our  opinion, is  not quite correct, for cl. (a) to s. 42  (1)  definitely requires  the court to consider whether the assets are of  a value equal to eight annas in the rupee on the amount of his unsecured liabilities, and this the Court generally speaking can  only find out after all the property has been  realised and  final  dividend  has been declared.  But,  as  we  have pointed out, it is possible to declare a final dividend  and thereafter  to  get an order of discharge even  though  some property may not have been disposed of where in the  opinion of  the  court  the  realisation  of  such  property   would needlessly  protract the receivership.  Therefore it may  be possible  in  some  cases  that  all  the  property  of  the insolvent  may  not  be  disposed  of  before  an  order  of discharge  is  made.   But in such a  case  the  court  will generally  pass  orders  with respect to  the  property  not disposed  of  when granting’ an order of discharge.   It  is true  that  the Act does not contemplate that  an  insolvent might  get an order of discharge and yet retain part of  his property free from the liability to pay debts provable under the Act, in case all the debts have not been paid off But it is  here that we have to look to the effect of s. 67 of  the Act.   That  section lays down that the insolvent  shall  be entitled  to any surplus remaining after payment in full  of his  creditors with interest as provided’ by the Act and  of the  expenses  of the proceedings  taken  thereunder.   Now, often this surplus would be in the form of money.  But  take a  case  where  an  insolvent  has  come  into  property  by devolution   after  he  became  insolvent  and  before   his discharge; and suppose that the property which was  devolved on  him is worth a few lacs while his debts are only  a  few thousands.  In such a case the receiver would not proceed to sell all the property; he would only sell so much of the  535 property  as  would satisfy the debts in full and  meet  the expenses  of the proceedings in insolvency; the rest of  the property whether movable or immovable would not be converted into  money.  It seems to us that it would not be  wrong  in such  a  case  to  call such  property  whether  movable  or immovable  which  remains  after  payment  in  full  to  the creditors   with  interest  and  of  the  expenses  of   the proceedings in insolvency as "surplus".  To this surplus the insolvent is entitled.  In such a case therefore it would be proper to hold that if any property remains undisposed of in the shape of surplus that vests back in the insolvent,  just as  surplus  in the shape of money would.  It is  true  that cases  may arise where what devolves on the insolvent  after the  order of adjudication and before his discharge may  not be easily realisable or may be a matter of dispute which may lead  to litigation lasting for many years.  In such a  case the  receiver would be entitled to declare a final  dividend if  the court is of opinion that the property which has  de’ volved on the insolvent is subject of protracted  litigation and it cannot be realised without needlessly protracting the receivership.   Such property would also in our  opinion  be surplus to which the insolvent would be entitled under s. 67

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subject to his complying in full with the provisions of that section i.e. paying his creditors in full with interest  and meeting the expenses of the proceedings taken under the Act. A  third  class of cases may arise where the court  may  not come to know of the property which devolves on the insolvent and grants a discharge in ignorance of such devolution,  may be  because the insolvent did not bring it to the notice  of the  court.   In  such a case also in principle  we  see  no difficulty in holding that the property which vested in  the receiver under s. 28 (4) and which remained undisposed of by him  before  the discharge of the insolvent would  still  be surplus to which the insolvent would be entitled, though  he may not be permitted to make full use of 536 it  until he complies with the conditions in s. 67,  namely, until  payment  in  full is made to his  creditors  and  the expenses of the proceedings in insolvency are met by him out of   the  property  so  remaining  undisposed  of.    Though therefore  there is no specific provision in terms in s.  44 (2)  with respect to property that may remain undisposed  of by the receiver or by the court like the provision in s.  37 on  an  order  of annulment, it seems to us that  s.  67  by necessary implication provides the answer to a case like the present.   All the property which remains undisposed  of  at the  time of discharge must be treated as surplus  to  which the  insolvent  is entitled.  The insolvent  will  thus  get title  to all such property and the vesting in the  receiver whether under s. 28 (2) or s. 28(4) would come to an end  on an  order  of  discharge subject  always  to  the  insolvent complying in full with the conditions of s. 67 in case  they have not been complied with before his discharge, for he  is entitled  only to the surplus after the creditors have  been paid  in full and the expenses of all proceedings in  insol- vency  have  been  met   Any other view  of  the  effect  of discharge  would  result  in this  startling  position  that though the insolvent is freed from his debts under s. 44 (2) and is a freeman for all purposes the property which was his and which vested in the receiver under s. 28 (4) will  never come back to him and will always remain vested either in the court  or the receiver.  We have no doubt that the  Act  did not contemplate such a situation.  We have already indicated the  reason  why  s. 44 does not provide  for  revesting  of property  in  the  insolvent in contrast  to  the  provision therefor  in s. 37.  Generally speaking it is  not  expected that  there  would  be any property left to  revest  in  the insolvent  after the administration in insolvency  is  over. We  have therefore to look to s. 67 which provides that  the insolvent is entitled to any surplus remaining after payment in  full of his creditors and after meeting the expenses  of the proceedings taken under the Act; and it is that  537 section  which gives title to the insolvent in the  property which  remains  undisposed  of for  any  reason  before  his discharge  subject to the conditions of that  section  being fulfilled even after the discharge. just as the Act does not contemplate  that  an  insolvent  would  get  an  order   of discharge  and  yet  retain part  of  his  property  without meeting  the debts provable under the Act in full, it is  to our  mind  equally clear that the Act does  not  contemplate that  after an insolvent has been discharged his  undisposed of  property,  if  any,  should  for  ever  remain  in   the possession  of  the  court or receiver,  even  though  in  a particular case the creditors may have been paid in full out of  the  property disposed of’ and all the expenses  of  the proceedings under the Act have been met.  In such a case  it

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seems  to us that it is s. 67 which must come to the aid  of the  insolvent and the property which remains undisposed  of must  be treated as surplus and he gets title to it.   Where however  the  insolvent has been  discharged  without  fully meeting the conditions of s. 67, he would in our opinion  be still entitled to the surplus, even if it be in the shape of undisposed   property,   subject  to  his   fulfilling   the conditions  of s. 67. It may be added that there is  nothing in  the Act which takes away the right of the  insolvent  to sue in courts after he has been granted a discharge, for  he then  becomes  a free man.  In such a situation  we  are  of opinion that he would certainly be entitled to sue in  court for recovery of his undisposed of property, if it is in  the possession  of a third party, after his discharge  and  such property  cannot  for  ever remain vested in  the  court  or receiver.   All  that justice requires is that in  case  the conditions  of s. 67 have not been fulfilled  such  property should  be  subject  to those conditions,  namely,  that  he should  be liable to discharge his creditors in  full.  with interest  and to meet the expenses of all proceedings  taken under the Act.  Subject to these conditions the insolvent in our  opinion would be entitled to undisposed of property  on discharge and would be 538 free to deal with it as any other person and, if  necessary, to file a suit to recover it.      It remains now to consider some of the cases which were cited  at the bar.  We have already pointed out that  it  is unnecessary  to  consider those cases which  deal  with  the right  of  the insolvent to file a suit while  he  is  still undischarged,  though even on this point there seems  to  be difference of opinion in various High Courts as to the power of  the insolvent; nor is it necessary to refer to the  rule in   Cohen  v.  Mitchel  (1),  which  has  found   statutory expression  in  s. 47 of the Bankruptcy Act, 1914,  (4  &  5 Geo.5,  ch. 59).  Section 47 of the           English  Bank- ruptcy  Act deals with transactions by a bankrupt  with  any person dealing with him bona fide and for value, in  respect of  property,  whether  real or personal,  acquired  by  the bankrupt after the adjudication, and provides that all  such transactions shall be valid if completed before intervention by the trustee (i. e. the receiver).  In England,  therefore intervention by the trustee (i.e. the receiver) is  required before completion of the transaction and if the trustee does not intervene the transactions arc generally speaking  good. That position of law however does not apply in India because of  s.  28 (4), which specifically lays down  that  all  the property  which is acquired by or devolves on  an  insolvent after  the date of an order of adjudication and  before  his discharge shall forthwith vest in the court or receivers      Learned  counsel for the parties have not been able  to cite  any case which deals exactly with a case like the  one before us.  We may however refer to certain observations  of learned judges which may be helpful to show how the position has  been  understood by some High Courts  with  respect  to surplus and also with respect to what happens to  undisposed of property after a (1)  (1890) 25 Q. B. D. 262, 539 discharge,  though there is no discussion on the subject  in the cases cited.      In  Sayad Daud Sayad Mohd. v. Mulna Mohd.   Sayad  (1), the  Bombay  High  Court was dealing with a  case  where  an insolvent  had  filed a suit to recover property  four  days after  he  had  been  adjudicated  insolvent’.   Later   the

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official assignee wanted to join as a new plaintiff when  he came  to know of the suit; but by that time it appears  that limitation  had expired, and the question arose whether  the suit would be said to have been filed afresh on the date the official assignee intervened.  It was held that that was so, for  the  insolvent could not maintain a suit after  he  had been  adjudicated  insolvent  and so  far  as  the  official assignee  was concerned the suit must be held to  have  been filed  on  the  date he asked  for  intervention  and  would therefore be barred by time.  It will be seen that the  case deals  with a suit brought by an undischarged insolvent  and not  with  a  suit  as in the  present  case  brought  by  a discharged insolvent.  But the learned judges observed  that the  vesting  order for the time being was  paramount,  even though  an  insolvent might eventually be entitled  to  what might remain as surplus after satisfying his creditors, thus showing that what remains as surplus becomes the property of the insolvent.     Yellavajjhula Surayya v. Tummalapalli Mangayya (2) is  a case more directly in point.  In that case the plaintiff was declared an insolvent in 1919.  He was still an insolvent in 1929  when certain property devolved on him as  reversioner. He  was  granted an absolute discharge in August  1931.   No creditors  had  come to prove their debts or to  take  steps between  1919 and 1929; nor did the official  receiver  take any  step prior to 1929 or between 1929 to 1931.  After  his absolute  discharge,  the plaintiff instituted  a  suit  for recovering the property., In that (1) (1926) 82 Bom.  L.R. 554. (2) A.I.R. (1941) Mad. 345 540 suit,  Varadachariar J. observed-and, if we may say so  with respect,  rightly-that the construction of cl. (4) of s.  28 was not free from difficulty; but went on to add that  there was  nothing in the policy of the Insolvency Law to  suggest that  it  was  intended to benefit  strangers,  and  in  the circumstances  the  plain-’ tiff could  maintain  the  suit, though the learned judge added that nothing that was said in the  judge  ment would prejudice the right, if any,  of  the official  receiver or of the creditors of the  plaintiff  to assert such rights and remedies as they might have in law in respect  of the suit properties.  It will be seen that  this case was almost similar to the case before us and the  court held  that  in such circumstances the  discharged  insolvent could  maintain the suit, though the reasoning was  only  in one  sentence, namely, that there was nothing in the  policy of  the  Insolvency Law to suggest that it was  intended  to benefit strangers.      In  Rup Narain Singh v. Har Gopal Tewari  an  insolvent acquired some property after the order of adjudication.   It was apparently not brought to the notice of the receiver and was   mortgaged  by  the  insolvent  while  he   was   still undischarged.   Later  after  his  discharge  the  mortgagee brought  a  suit  to enforce the  mortgage.   The  insolvent mortgagor  had  transferred part of the  property  to  other persons  who were also made parties.  These  persons  raised the  defence  that  as the  mortgagor  was  an  undischarged insolvent  when he executed the mortgage, it was void.   The High Court negatived this contention and relying on S. 43 of the  Transfer  of  property Act decreed the  suit.   In  the course of the judgment the High Court however observed  that after  the order of discharge was passed, the  property  had been  divested from the receiver and revested in the  insol- vent, though no reason was given for this view.      In Dewan Chand v. Manak Chand (2) the facts were that a

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certain property devolved on an insolvent,  (1) I.L.R. (1933) 55 All. 503. (2) A.I.R. (1934) Lab. 809  541 who made a mortgage of it, apparently without bringing it to the  notice  of  the  receiver.   After  the  insolvent  was discharged, a suit was brought to enforce the mortgage and a question arose whether s. 43 of the Transfer of property Act would  apply.   In that connection the High  Court  observed that  after  the insolvent was discharged  the  property  in question  must  be  considered  to  have  revested  in   the mortgagor  on his discharge in the absence of any  order  to the contrary by the court.      We  may  now  notice some cases on  which  reliance  is placed to suggest that undisposed of property can never vest in the insolvent, even after he gets a discharge.  In  Arjun Das  Kundu v. Marchhiya Telinee (1), it - was held that  "an absolute order of discharge of an insolvent does not release any  property  acquired by him before such  order  from  the liability  to meet his debts provable in  insolvency."  That case, however, was only dealing with the effect of s. 44 (2) of  the Act and it was held that if there was  any  property which vested in the official receiver either under s. 28 (2) or  under  s. 28(4) and that property was  not  disposed  of before  the  order of discharge, the creditors  would  still have  a right to get their debts discharged by the  sale  of that  property  even though they might not have  proved  the debts  at  an  earlier stage.  This case  does  not  in  our opinion support the proposition contended for by the respon- dents.   It only lays down that the property  which  remains undisposed  of would still be subject to the debts  provable under the Act, and this is what in our opinion is the effect of s. 67 where only the surplus revests in the insolvent.      The  next case is Kanshi Ram v. Hari Ram (2) there  the facts  were that a discharge was granted on the re  port  of the  official  receiver to the effect that  the  insolvent’s assets  had been completely disposed of.  Thereafter it  was discovered that some property had (1) I.L.R. (1937) 1 Cal. 127. (2) A.I.R. (1937) Lah. 87. 542 devolved  on the insolvent before his discharge and was  not within  the knowledge of the receiver.  The High Court  held that  such property was liable to meet the debts  which  had not been paid in full before the discharge.  This case  also in our opinion only lays down that any surplus in the  hands of the insolvent after his discharge is liable to the  debts provable  under the Act if they have not been paid in  full, and this is in accordance with the provisions of s. 67,  for the insolvent is only entitled to that property or money  as surplus  which  remains after payment of his debts  in  full -and after meeting all expenses of the proceedings under the Act.      The  last case to which reference may be made is  Parsu v.  Balaji  (1).  In that case also the insolvent  had  been discharged but his debts had not been paid in full.  It  was held in those circumstances that any undisposed of  property would  still be liable to meet the debts provable under  the Act.   This  again in our opinion is in accord  with  s.  67 where  the insolvent is only entitled to that surplus  which remains  after his debts have been paid in full and all  the expenses  of the proceedings taken under the Act  have  been met.      Therefore, on a careful consideration of the scheme  of the  Act and on a review of the authorities which have  been

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cited  at  the bar, we are of opinion that an  insolvent  is entitled  to get back any undisposed of property as  surplus when  an absolute order of discharge is made in his  favour, subject  always  to the condition that if any of  the  debts provable  under the Act have not been discharged before  the order of discharge, the property would remain liable to dis- charge  those  debts  and  also meet  the  expenses  of  all proceedings  taken  under the Act till they arc  fully  met. The view of the High Court that the suit is not maintainable is  therefore not correct.  The order of the trial court  by which  it held that the suit was maintainable  and  provided that notice should be (1)  I.L.R. (1944) Nag. 14.  543 given  to the receiver in insolvency application No.  48  of 1939  to  consider  if be wanted the  property  to  be  made available for distribution amongst creditors, is correct.       Now we come to the second point raised before the High Court, namely, the effect of the will of Ganpatrao.  By  the first   clause  of  the  will,  Ganpatrao  appointed   three executors.   The  bequest in favour of  Annapumabai  was  in these terms :-               "The entire immovable property situate at  the               village of Dahisar, Taluka Kalyan,  consisting               of  lands  and tenements etc. is given  to  my               senior wife, Annapoorna.  During her life-time               she   shall  enjoy,  as  owner,   the   income               therefrom, in any manner she may like.  No one               shall  have  (any) right,  title  or  interest               therein." The bequest in favour of Sarswatibai was in these terms :-               "The entire immovable property situate at  the               village  of Nagaon, Taluka Kalyan,  consisting               of  lands  and tenements etc. is given  to  my               junior wife, Sarswati.  During her  life-time,               she  shall  enjoy, as owner, only  the  income               therefrom in any manner she may like." Then there was another clause which gave them some  property jointly, which was in these terms :-               "The  property consisting of a dwelling  house               and  other  structures  and  open  space  etc.               situate  at  Thana shall remain  with  my  two               wives.   Hence, they should live amicably  and               enjoy the same."      The  High  Court  has held that  the  estate  given  to Annapurnabai in the lands at village Dahisar and 544 to Sarswatibai in the lands at village Nagaon and the estate given to them, in the house at Thana was an absolute  estate subject to defeasance of the estate on their deaths in  case a son was adopted by Annapurnabai.      It  is  true that the two clauses with respect  to  the demise  of properties in villages Dahisar and Nagaon to  the two  widows use the word "owner" ; but we have to  read  the clauses   as   a  whole  together   with   the   surrounding circumstances  then  prevailing as also in contrast  to  the other clauses in the will to determine the intention of  the testator.  Now the clause with respect to village Dahisar is that the property in Dahisar was given to Annapurnabai.  and then  goes  on to say that during her  life-time  she  would enjoy  as  owner the income there from in  any  manner  -she liked  and  no  one  else would have  any  right,  title  or interest therein  Reading the clause as a whole it seems  to us fairly clear that the intention of the testator was  that the property given to Annapurnabai was for her life and  she

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was entitled to enjoy the income therefrom in any manner she liked   without  any  interference  by  any  one.   If   the testator’s intention had been to give an absolute estate  to Annapurnabai, there was no reason why he should have gone on to say in that clause, "during her life-time she shall enjoy as owner the income therefrom, in any manner she may  like", for that would have been unnecessary in the case of a person who  was  given an absolute estate.  Therefore  these  words appearing  in  the  second  clause  are  clearly  words  of, limitation and show on the reading of the whole clause  that the intention of the testator was to confer a life estate on Annapurnabai.   In  the  case of  the  property  in  village Nagaon,  the matter is clearer still, for the testator  said that  Sarswatibai  shall  enjoy as owner,  only  the  income during  her life-time.  These are clear words of  limitation and show on reading the clause as a whole that the  545 intention of the testator was to confer only life estate  on Sarswatibai.   As  to the clause relating  to  the  dwelling house etc. in Thana, it is remarkable that that clause  does not  even  use  the word "given" ; it  only  says  that  the dwelling house etc.  "’shall remain with my two wives"  i.e. that  they will be in possession so long as they live.   The further  sentence that they should live amicably  and  enjoy the  same,  makes  in  our  opinion  no  difference  to  the intention of the testator, which is clear from the fact that he  wanted  these properties to remain with his  two  wives, i.e. he was only giving them the possession of the  property for enjoyment for their lives. In  this connection it may be well to contrast the  language of  some  other clauses in the will where  the  bequest  was obviously of an absolute estate.  Take the bequest  relating to  Sirdhon village in favour of Balkrishna  Waman  Kharkar. It is in these terms :-               "The  entire immovable  property  situate-,’at               Sirdhon village, taluka Panvel, consisting  of               lands and tenements etc. is given to Chiranjiv               Balkrishan Waman Kharkar.  He shall en’JOY the               same  as  owner.   Neither my  two  wives  nor               others  whosoever shall have any right,  title               or interest etc. whatever therein." This is a clear bequest of an absolute estate.  There is  no mention of any income in this clause and also no mention  of the  life time of the legatee.  Obviously, therefore,  where the testator was intending to bequeath an absolute estate he used entirely different language from that used in the three clauses with respect to his wives.      Contrast again the language relating to the bequest  of movable property in favour of the two wives.  That clause is in these terms :-               "  Movable  property  such  as  ornaments  and               trinkets and clothes and raiments etc. which               546               may have been given to any party shall  remain               with the said party and my two wives shall  be               fully entitled thereto.  They shall deal  with               the same in any manner they               like.   " The use of the words "fully entitled" clearly indicates  the bequest  of  absolute estate so far as movable  property  is concerned  ;  but we find no similar words  in  the  clauses relating to bequests of property in villages Dahisar, Nagaon and Thana.      This  conclusion  as  to the  nature  of  the  interest bequeathed  to  the  two wives is  strengthened  by  another

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provision  in the will.  Under that  provision  Annapurnabai was  authorised to adopt a fit boy from amongst the  family, on  the advice of the executors.  It was also provided  that the adopted son shall have no right of any kind whatever  to the movable and immovable properties so long as  Annapumabai remained  alive.  But on her death he was to be entitled  to these.  properties.   It was further provided  that  on  the death  of Sarswatibai the adopted son would become  entitled to  the  immovable property bequeathed of her.  Now  if  the estate  bequeathed  to Annapurnabai    and   Sarswatibai was anabsolute estate  it is difficult  to see how the  testator could  provide  that  on  the  death  of  Annapurnabai   and saraswatibai  the properties bequeathed to them would go  to the adopted son.  The holder of an absolute estate would  be entitled  to sell it if she so desired, and therefore  there could  be  no provision in the will that on  the  deaths  of Annapumabai and Sarswatibai, the property bequeathed to them would go to the adopted son.  This provision therefore  read with  the  provisions in the three clauses relating  to  the bequests of properties in Dahisar; Nagaon and Thana  clearly shows that the bequest of those properties in favour of  the two wives was only a life estate.  We cannot therefore agree with the  547 High  Court  that  the  estate  given  to  Annapumabai   and Sarswatibai  whether  in  Dahisar, Nagaon or  Thana  was  an absolute  estate.  In our opinion it was life  estate  only. It  may also be added that Ganpatrao died,, in 1894 when  it was  more usual to give life estate to widows and the  terms in  the  various clauses on the will are in our  opinion  in consonance with the prevailing practice in those times.      In  the  view that we have taken it  follows  that  the judgment  of the High Court must be set aside.   However  as the High Court has only considered these two questions,  the case will have to be remanded so that the High Court may  go into the other issues raised and decided by the trial court.      Lastly we may refer to another contention on behalf  of the  respondents.   It appears that Shamdas  Narayandas  and jaigopal  Narayandas purchased property in village  Dhokali- Manpada  in Taluka and sub-division of Thana,  described  as lot No. 8 in the first schedule to the ’plaint.  It  appears that  there  was  one  sale deed  in  favour  of  these  two defendants.   Of these defendants, jaigopal_Narayandas  died on April 19, 1960, after the decree of the High Court  which was given on March 7, 1957, and also after the grant of  the certificate  by the High Court in May, 1958, and  the  order admitting the appeal by the High Court in April, 1959.   The record was despatched to this Court in 1962.  No application was however made to the High Court till August 13, 1962, for substitution of the heirs of jaigopal Narayandas.  When  the application  was made in August 1962, for substitution,  the High Court dismissed it on Jannary 9. 1963, on the ground of limitation.   There  was  then a  review  application  filed before the High Court, which was also dismissed on  February 12,  1963.  Thereafter the petition of appeal was  filed  in this  Court  on March 13, 1963.  Then on April 3,  1963,  an application was made to this 548 Court for substitution of the heirs   of Jaigopal Nara a as. The  respondents  contend  that as the  heirs  of  jaigopal- Narayandas  were  not brought on the recordwithin  the  time allowed by law, the entire appeal abates.  We are of opinion that  the  interests of the various defendants  who  are  in possession   of  various  properties  are  independent   and therefore  the whole of the appeal cannot abate because  the

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heirs  of certain deceased defendants in possession  of  one property  have  not been brought on the record.  So  far  as lot.   No.  8  is concerned it was the  common  progerty  of Shamdas  Narayandas  and  jaigopal Narayan  as,  which  they apparently  acquired by one sale-decd.  We are not  prepared to  condone  the  delay in bringing the  heirs  of  jaigopal Narayandas   on  the  record  and  therefore   dismiss   the application dated April 3, 1963.  The effect of this will be that  the suit will abate in so far as the property  in  lot No. 8 is concerned. It is not shown that the interest of the two  purchasers who are presumably members of  an  undivided family  were  separate and distinct and so there  cannot  be partial  abatement  only  in  regard to  the  share  of  the deceased purchaser; but that cannot affect the appeal in  so far  as the property in other lots is concerned.   The  High Court on remand will therefore go into the other issues with respect  to  properties  in lots other than lot  No.  8.  We therefore  allow the appeal and remand the case to the  High Court  for  decision on other issues so far as  lots  (other than  lot  No. 8) in the first schedule to  the  plaint  are concerned.   So  far as lot No. 8 is concerned,  the  appeal abates  and is dismissed.  In the circumstances we  pass  no order as to the costs of the appeal with respect to lot  No. 8,  so far as the costs of the appeal with respect to  other lots  are concerned, the respondents will pay the  costs  of the  appellant including advocate’s fee of this court &  the Court fees also.                               Appeal allowed. Case remanded.  549