KANAK SUNDER BIBI Vs. RAM LAKHAN PANDEY

JUDGEMENT

(1.) This is an application for leave to appeal to the Supreme Court. The short facts giving rise to the application are these. Pawanjai Kumar Jain and his son, Rajkumar Jain, were possessed of some properties including two houses in the town of Arrah. Under a deed of family arrangement one of the two houses was to be sold by Pawanjai Kumar Jain in order to pay off all the joint family debts and the other house was to be held by him and his son in equal shares. On 1-7-1939, Pawanjai Kumar Jain executed a deed of gift with respect to all the properties that he had at that time including his interest in the aforesaid two houses to his sister, Sri Kanak Sunder Bibi, the petitioner, who as a consideration thereof accepted the liability to pay his debts and to maintain him till his life. On 29-4-1940, Pawanjai Kumar Jain and Rajkumar Jain were adjudged to be insolvents. One of the two houses was sold in execution of a mortgage decree for Rs. 27,000 out of which a sum of Rs. 10,700 was taken by the decree-holder towards the satisfaction of his decree and out of the remaining amount of Rs. 16,300 the Receiver realized half of the total price as being the share of Rajkumar Jain. After the order of adjudication the Receiver made an application under Section 53, Provincial Insolvency Act for the annulment of certain transfers made by Pawanjai Kumar Jai including the aforesaid deed of gift. On 12-7-1954, the Insolvency Court annulled the deed of gift. One of the contentions raised before it was that the said deed of gift was invalid and was not given effect to. The Insolvency Court, however, for the purpose of the insolvency proceeding, proceeded on the assumption that the deed of gift was valid and operative. It, therefore, left the question of its validity and effectiveness open and held that its annulment was for the limited purpose of the insolvency proceeding and after the discharge of the insolvents any of the gifted properties that would be left over was to revert to the petitioner, the donee. With regard to the other house, which was not sold, it directed that it should be divided in equal shares between the father and the son. Against the decision of the Insolvency Court the petitioner preferred an appeal to this Court being Miscellaneous Appeal No. 133 of 1954. Rajkumar Jain, one of the insolvents, Pawanjai Kumar Jain having died in the mean time, filed a cross objection praying that the deed of gift in question should be declared to be a sham and void transaction. There was another appeal, namely, Miscellaneous Appeal No. 219 of 1954, which had been filed by a purchaser from another donee, namely Janki Kaharin. That appeal was also heard and disposed of along with Miscellaneous Appeal No. 133 of 1954. We are, however not concerned with Miscellaneous Appeal No. 219 of 1954 and it is, therefore, not necessary to give the facts giving rise to that appeal. This Court affirmed the order of the Insolvency court with regard to the annulment of the deed of gift and held that the transfer in favour of the petitioner was without any valuable consideration and she was not a purchaser within the meaning of Section 53, Provincial Insolvency Act. The order of the Insolvency Court with respect to the division of the other house, however, was varied by this Court. It was held by this Court that one of the aforesaid two houses having already been sold and half of the price having already been realised by the Receiver on behalf of the son, the other house which was not sold should be treated under the terms of the family arrangement deed as the property of Pawanjai Kumar Jain as having been given to him for the payment of family debts on condition mentioned therein. The cross objection filed by Rajkumar Jain was allowed to a limited extent inasmuch as this Court directed that the question whether any part of the gifted properties would revert to the donee or not was left over for decision at a subsequent stage, or by a suit, if and when a determination of that question becomes necessary. Miscellaneous Appeal No. 133 of 1954 filed by the petitioner was dismissed subject to the modifications referred to above. The result was that there was a variation in the order passed by the Insolvency Court on two points, namely, (1) with regard to the direction of the division of the other house and (2) with regard to the order relating to the reversion of the left over properties to the donee. The petitioner has, therefore, filed the present application for leave to appeal to the Supreme Court against the judgment and order of this Court passed in that Miscellaneous appeal. By the proposed appeal she challenges the order of this Court both with regard to the annulment of the deed of gift on which the two Courts are in agreement as well as with regard to the direction leaving open the question of reversion of the left over properties to the donee on which the order of this Court is at variance with that of the Insolvency Court. The application was at the first instance heard by My Lord the Chief Justice and Kanhaiya Singh J. The point raised in this application, a reference to which will be made later on, is of considerable difficulty. The decisions of the various High Courts, some of which are Pull Bench Decisions, one including of this Court, are conflicting. In view of such conflicting decisions and! of the importance of the question raised, their Lordships thought it desirable that a more authoritative pronouncement on the question should be obtained and accordingly this case was directed to be heard by a larger Bench. The application has, therefore, been placed before us for disposal.

(2.) That the value of the subject-matter of dispute in the court of first instance and still in dispute on appeal is more than Rs. 20,000 has not been challenged before us. When the application was originally heard by a Bench of this court which referred it to the larger Bench, no argument was advanced before their Lordships that the appeal involves some substantial question of law. Mr. Jha, who has argued the case before us with great ability, has contended that the appeal does in-volve some substantial question of law. He has submitted that before the Bench which heard this application originally he, in view of the Full Bench decision of this court in 'Braja Sunder Deb v. Ra-jendra Narayan', 1941 Pat 269 (AIR V 28) (A), was sure to get leave and as such he did not think it necessary to advance any argument on the point that the appeal involved some substantial question of law. Be that as it may, we are, for the present, proceeding on the assumption that the proposed appeal does not involve any substantial question of law.

(3.) Mr. Jha appearing for the petitioner has contended that the judgment of this court is (one of reversal) and not of affirmance and as such the petitioner is entitled to get a certificate for leave to appeal to the Supreme Court as of right. His contention is that though the proposed ap peal relates to the question of annulment on which this court has affirmed the order of the Insolvency court, the petitioner, by this appeal, also challenges the order of this court in regard to the left over properties on which point this court has varied the order of the Insolvency court to the prejudice of the petitioner and as such the judgment of this court is one of reversal. He has also contended that the variation in the order of the Insolvency court with regard to the division of the house which had not been sold, though in favour of the petitioner, makes the judgment of this court as being not of affirmance.