ISAMODDIN AJMODDIN Vs. AJMODDIN SHAMSODDIN

JUDGEMENT

(1.) THIS second appeal arises out of an application by the receiver appointed in an insolvency petition, under Section 53 of the Provincial Insolvency Act, to have two transfers set aside by the Court. The insolvency was declared on January 31, 1931. But in the previous March there was an award in a partition suit between the insolvent and his brother and sister, and the award, dated March 3, 1930, was embodied in the decree, dated March 5, 1930. Under that award-decree some of the insolvent's property passed to his brother and sister. Two days after the decree the sister, who is now opponent No.1, transferred what she obtained under the decree to the sons of the insolvent, opponents Nos. 2, 3 and 4.The receiver asks that the transfer represented by the decree may be set aside on the ground that the award was fraudulent, and he also asks that the transfer by the sister two days after the decree may also be set aside as fraudulent. In both cases he seeks the aid of Section 53 of the Provincial Insolvency Act.

(2.) IT is found as a fact that the transfers were fraudulent, and I have no reason to disagree with that conclusion, as fraud is apparent on the face of the award. But it is contended in this appeal that Section 53 of the Provincial Insolvency Act cannot be applied to either of the transfers. That section runs as follows; Any transfer of property not being a transfer made before and in consideration of marriage or made in favour of a purchaser or incumbrancer in good faith and for valuable consideration shall, if the transferor is adjudged insolvent within two years after the date of the transfer, be voidable as against the receiver and may be annulled by the Court. IT is argued in the first place that the section refers to " transfers " and not to " decrees ", and therefore, if a decree has been passed, the only remedy would be not by Section 53 but by a suit to have the decree set aside. No authority has been quoted for this argument, and, in my opinion, it is unsound. The section refers to " any " transfer, and I do not know why these words should not include a transfer made by a decree. In this case of course the transfer could not be annulled without in effect annulling the decree. But there does not seem to be any reason for not thinking that Section 53 would allow annulment of the decree in such circumstances.