THE OFFICIAL RECEIVER Vs. NEMINADHA MUDALIAR

JUDGEMENT

(1.) THIS Civil Miscellaneous Second Appeal and the Civil Revision Petition have been filed against the order of the District Judge of West Tanjore on an application by the Official Receiver to set aside a usufructuary mortgage executed by three insolvents in favour of the respondent and also a payment to him of Rs. 2,800. The learned District Judge agreed with the trial Court that the transactions in question were fraudulent preferences. The transactions were therefore set aside as far as the insolvents' share in the property was concerned but not with regard to the shares of certain members of the insolvents' family who had not been declared insolvents. The Official Receiver also claimed mesne profits, which was granted by the District Judge from the date of order and not, as the Official Receiver claimed, from the date of his application to set aside the alienations. The appeal and civil revision petition have been filed by the Official Receiver because of the refusal of the District Judge to set aside the mortgage as far as the shares of those who were not insolvents were concerned, and also because of the disallowance of mesne profits from the date of application. A memorandum of cross objections has been filed by the alienee, contending that there was no sufficient justification for the finding of the Courts below that the transactions were in fraudulent preference of the transferee. It is also contended that the lower Court was wrong in ordering the respondent to repay the whole of the Rs. 2,800 paid to him.

(2.) SINCE the order of the first Court was under Section 54 of the Act no second appeal lies. The application was no doubt filed under Section 4 also; but it was not necessary for the lower Court to invoke the provisions of Section 4 in passing the orders it did. No second appeal therefore lies. As however the Official Receiver has taken the precaution to file a civil revision petition also, and the questions raised are questions of jurisdiction, the matters raised both in the civil miscellaneous second appeal, civil revision petition, as well as in the memorandum of cross -objections, can be considered.

(3.) IF we examine Ex. I, we find that the mortgage deed was executed by the three insolvents, who are a father and two sons, and by three grandsons who were not insolvents. Of these, one Subramania Chetti was a major and the other two were minors. The document indicates that the fathers were executing this document for themselves and as guardians of the minors. If they executed the document as guardians of the minors, they could not have been executing it merely as undivided fathers with a right to transfer their sons' shares, in which case it would not have been necessary to make the minors parties to the transaction. Moreover, as already pointed out, one of the grandsons was a major, and as he represented himself in this document his father could not have purported to transfer his share by virtue of his right as an undivided father. There is therefore no doubt that the insolvents in this case were not exercising their rights as Hindu fathers to sell their sons' shares. The Insolvency Court had jurisdiction to deal only with the shares of the insolvents.