NARAYAN SHAMRAO Vs. DNYANESHWAR BALIRAM

JUDGEMENT

(1.) The opponent Baliram was on his own application adjudicated an insolvent on 23-9-1955. Consequent upon his adjudication, one of his creditors deceased Shamrao who in this revision application is represented by the appliants No. 1 to 3 as his legal representatives, made an application for annulment of a certain transfer made by Baliram. The annulment was sought under the provisions of Section 53 of the Provincial Insolvency Act. The transfer was a gift deed executed on 15-10-1953 by Baliram in favour of his son Dnyanneshwar, opponent No. 1 Both the insolvency Court as also the learned Diostrict Judge in appeal have dismissed this application for annulment of the transfer on the short ground that the property which was gifted by Baliram to his son was not liable to attaschment and sale and that therefore it was not propery which under Section 28 of the Provincial Insolvency Act vested in the Court or a receiver.

(2.) The property which was the subject of the gift was originally land held in sir right which consequent upon the paswsing of the M.; P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, became land held in malikmakbua right by virtue of the provisions of Section 38 of that Act. Section 155 of the M. P. Land Revenue Code, 1954, however, stil maintains the bar of attachment ;and sale in regard to such land in a certain respect. Section 155 runs as follows :

(3.) But what he submits is that although the land as such would not be attachable or saleable, the bar of Section 155 does not apply to the income from such land. He has urged that in this field there stands an orange garden, and the usufruct of the garden can be attached. Simply because the father has chosed to transfer the whole garden to his son, the latter is taking a very substantial income any yet, it is urged, because of Section 155, the property which belonged to the father before the gift does not vest in the insolvency court. The bar of attachment and sale created by Section 155 of the M. P. Land Revenue Code is a bar which is in derogation of the normal right of a creditor to realise his debts out of the properties of his debtor, and therefore it seems to me that that bar must be strictly construed. When S. 155 refers to any land, it seems to me that it cannot possibly apply to the income or usufruct of that land, and therefore to the extent that the orange garden yields an income from its crop, I see no reason wy a receiver cannot be appointed.