T C PANIGRAHI Vs. GORU SATYARAJULU

JUDGEMENT

(1.) THIS is an appeal against an appellate order of the learned single Judge of this court allowing in part an appeal preferred against a judgment of the District judge, Koraput. One Goru Neelakantham applied on 11-5-1957 to adjudge him insolvent and this application was allowed by the District Judge on 12-12-1959. Long before such adjudication, he had executed a deed of gift (Ex. 1) dated 1611-1948 in favour of his wife, the present appellant in respect of eight items of property including a house situated in Kapur street, Jeypore town, which is item n6. 8 of the schedule of the gift deed. On 26-5-1955, he also executed a sale deed (Ext, 2) in favour of his mother Goru Appayamma in respect of a house site situated in Jeypore town. After adjudication, a receiver was appointed and he filed an application under Section 4 of the Provincial Insolvency Act on 30-1-1961 averring that Exts. 1 and 2 are fictitious documents which were never acted upon and were created with a view to screen the properties from the clutches of creditors. The learned District Judge after enquiry accepted the receiver's case and holding that the documents were fictitious in nature, ordered that they stand annulled. Against this order, the wife and the mother of the insolvent preferred an appeal to this Court. During the pendency of the appeal, the mother died and the learned advocate appearing for appellants did not also press the appeal legarding the finding of the District Judge on the sale deed. The learned single Judge of this court after a very elaborate consideration of the evidence on record and the circumstances of the case, recorded the following findings : (1) That the deed of gift (Ext. 1) was validly executed; (2) That in 1948, when the deed of gift was executed, the insolvent had no loans outstanding against him and hence there was no occasion and much less any necessity for him to screen his properties from the clutches of creditors; and (3) That after the execution of the deed of gift the wife remained in possession of the gifted properties. In view of these findings, the learned Judge was satisfied that the receiver on whom the onus lay to prove that the transaction under Exhibit No. 1 was a sham transaction failed to discharge the onus. He, therefore, set aside the order of the learned District Judge annulling the gift deed. The receiver has preferred this present appeal,

(2.) MR. Y. S. N. Murthy. the learned Advocate appearing for the appellant does not challenge the correctness of the learned Judges' findings 1 and 2 referr-ed to above. His entire attack is directed against the third finding regarding the possession of the properties covered by exhibit 1 after execution of the deed of gift. It seems that out of the eight items of property covered by the deed of gift, two items, being items Nos. 6 and 7 are already alienated in favour of third parties who have not been impleaded in this litigation. Items Nos. 1 to 5, according to Mr. Murthy are not very valuable items. He has therefore concentrated his entire submissions on item No. 8 which is a house situate in Kapur street, Jeypore town. Admittedly, the appellant (wife of the insolvent) had not so far got her name mutated in respect of this house, although the gift deed was execut-ed in her favour as long ago as in 1948. Considerable reliance was placed on this single circumstance on behalf of the appellant to show that the gift deed had not been acted upon and that it was Benami in character. We are unable to hold that this circumstance is in any way decisive. It should not be forgotten that the donee in this case is the wife and it is not disputed that even after the execution of the gift deed, the husband continued to live with his wife in this house. There is evidence to show that the gift deed was handed over to his wife and that it is from her custody that it was produced in court. The position would have been different if the donee was a person not related to the donor or a relation who would not in the ordinary course live with the donor under the same roof. But, where, as in this case, the parties are related to each other as husband and wife and were living in the house both before and after the execution of the gift deed, the position is slightly different and mere non-mutation of the name of the donee does not militate against the genuineness of the gift. The same view was taken by Das, J. in AIR 1964 Orissa 212, Adhikari narayanamma V. Adhikari Thabitinaidu. In AIR 1932 P. C. 13, Nawab Mirza mohammad Sadiq Ali Khan v. Nawab Fakr Jahan Begam, the husband executed a deed of gift in favour of his wife. The gift deed contained the statement : "i deliver possession of the gifted property to my said wife" and the deed of gift was handed over to the donee as soon as it was registered. Their Lordships said that the declaration in the deed was binding on the heirs of donor and that actual taking of separate possession by the wife was not necessary and that the declaration made by the husband, followed by the handing over of the deed to the wife was sufficient to establish a transfer of possession. Similar recitals indicating a complete transfer of ownership and possession of the properties devised appear in the gift deed (Ex. 1 ). In these circumstances, we are satisfied that mere non-mutation of the name of the wife in respect of the disputed house is not sufficient to show that the gift deed was not in fact acted upon. An attempt was also made on behalf of the receiver to show that some time after the execution of the deed of g ift, the insolvent had given the disputed ouse as security in a certain proceed-big. The learned single Judge elaborate ly discussed this aspect of the case with reference to the boundaries, the extent and other particulars relating to the disputed house as mentioned in the deed of gift and the house that was given as security by the husband, and pointed ou1 that the details differed so much from each other that it was impossible to hold that the house property which was offered as security by the husband is the same as the one covered by item no, 8 of the gift deed. In fact, Mr. Murthy fairly conceded that in view of this evidence and specially having regard to the lack of evidence by the receiver that besides the disputed house the insolvent had no other house in Jeypore town, it will not be possible for him to maintain that the house offered as security by the insolvent is the same as the disputed house.

(3.) MR. P. V. B. Rao. appearing for the respondents contended that the entire attack on behalf of the appellant is directly against the findings of fact recorded by the learned single Judge and that such a course is not permissible in this appeal. In support of this contention, he relied on a Full Bench decision of the Patna High court reported in AIR 1965 Pat 472 (FB ). Sm. Asho Devi v. Dukhi Sao. In view of the fact that on a perusal of the evidence on record we are satisfied that all the findings recorded by the learned single Judge are unassailable, it is unnecessary for us in this case to decide the further question whether it is open to the appellant in the present proceeding to assail these findings.