N SUBRAMANIA IYER Vs. OFFICIAL RECEIVER QUILON

JUDGEMENT

(1.) This appeal by special leave is directed against the concurrent orders of the Courts below allowing the Official Receiver's application under S. 35 of Travancore Regulation viii of 1090 (=1915), to which we shall, refer in the course of this judgment as the Insolvency Regulation, for annulling the usufructuary mortgage (EX. I) for Rs. 75,000 dated 18-8-1924, executed by a number of persons who may not be conveniently described as the insolvents. The main question for determination in this appeal on behalf of the transferee is whether the transaction in his favour is within the third exception to S. 35 aforesaid. (In this judgment we shall use the dates with reference to the Gregorian Calendar equivalent to the dates maintained under the Malayalam Calendar).

(2.) In order to appreciate the arguments in this appeal it is necessary to state the following facts. Koya Kunju was a flourishing merchant at Quilon carrying on trade in piecegoods, yarn, provisions, etc. He died in or about the year 1921 leaving him surviving his widow, two sons and two daughters, who jointly carried on the ancestral business through the eldest son under a power-of-attorney. They added to the family business a tile factory and an oil mill.

(3.) It was on 28th March 1928, that the Official Receiver made his application to the Court praying "that the Court may be pleased to declare the transfers described in sch. A, void as against your petitioner." Schedule A comprised the usufructuary mortgage bond aforesaid and the lease deed, as also the hypothecation bond for Rs. 78,859-15-0.