PADAMSI PREMCHAND Vs. LAXMAN VISHNU DESHPANDE

JUDGEMENT

(1.) ONE Keshavji Manekchand was adjudicated an insolvent on a petition presented by his creditors on August 24, 1940. Subsequently the Receiver in the insolvency filed three applications for setting aside three deeds of transfer dated January 25, 1935, January 80, 1935, and March 30, 1932, These transfer deeds were: one in favour of his son Harkissondas Keshavji, the second for the education and marriages of his daughters and for the maintenance and residence of the insolvent himself and third again for the benefit of his son Harkissondas.

(2.) IN the trial Court an issue was raised whether the Court had jurisdiction on its insolvency side to set aside these deeds of transfer. The learned Judge took the view that Section 53 of the INsolvency Act did not apply to the case as the deeds of transfer were made more than two years before the date of the insolvency petition, but he held that the Court had jurisdiction under Section 4 of the Act. An appeal was preferred to the District Court, and the learned Assistant Judge, Thana, dismissed the appeal. IN second appeal on the arguments advanced before me I felt some doubt as to whether the view taken as to the powers of the insolvency Court by a division bench of this Court in Baoji Pandarkar v. Bawachekar (1935) 37 Bom. L.R. 478 was the correct view, and on that the matter was referred to a full Bench and it has now come before us.

(3.) IT is perfectly true that Section 4 is merely declaratory of the jurisdiction of the insolvency Court. IT does not declare any substantive law and Section 4, as its very terms indicate, has to be read subject to the other provisions of the Insolvency Act. Therefore Mr. Desai is right when he says that if a transaction falls within the ambit of Section 53, then it can only be challenged provided the conditions laid down in that section are satisfied. IT would then not be open to the Receiver to say that although the transaction falls under Section 53 and he could not challenge it under Section 53 because he could not satisfy the conditions, he would fall back upon Section 4 and invoke the wider jurisdiction conferred by that section. But the question we have to consider is whether all transfers made by an insolvent which are to be challenged necessarily fall under Section 53 of the Act.