BHANWARI BAI Vs. JOHARILAL SONI

JUDGEMENT

(1.) PYARELAL executed a deed of gift on November 7, 1961 in favour of his wife Smt. Bhanwari Bai. On October 15, 1968, upon his own application, Pyare Lal was adjudged as an insolvent. On behalf of the receiver the deed of gift in favour of Smt. Bhanwari Bai was challenged on January 4, 1968. The learned Additional District Judge No. l,jodhpur, upheld the objection of the receiver and declared the deed of gift as void. Smt. Bhanwari Bai has now come up in appeal.

(2.) MR. Mukat Beharilal Bhargava appearing for the appellant has urged that sec. 4 of the Provincial Insolvency Act (hereinafter called "the Act") is subject to the other provisions of the Act as the opening words of sub-sec. (1) and (2) indicate. Therefore, the deed of gift which was executed two years before the date of the adjudi-dation of the insolvent could not be enquired into by the Insolvency Judge in exercise of his powers under sec. 4 of the Act. He urged that the Full Bench decision reported in Haji Anwar vs. Kd. Khan (l) contained a dissenting judgment of Sen J. the reasoning whereof has been accepted in Amjad Ali vs. Nandlal Tandon (2 ). This question also received a close consideration by the learned Judges of the Nagpur High Court in G. N. Gadbole vs. Mt. Nanibai (3), MR. Bhargava urged that whatever might have been the divergence of opinion between different High Courts with regard to the powers conferred by sec. 4 of the Act the matter has now been set at rest by the decision of the Supreme Court in Hansraj vs. Rattan Chand (4), wherein the view expressed by the learned Judge of the Rangoon High Court in Ma Sein Nu vs. U. Mg. (5) has received full approval. This is to the effect that the jurisdiction conferred under sec. 4 is controlled inter alia by the provisions of sec. 53 of the Act. The last case he cited was Gangadhar Revappa Umbaranikar vs. Shanker Vithoba Gholasgaonkar (6 ).

(3.) THE other line of cases is Amjad Ali vs. Nandlal Tandon (2) which lays down that sec. 4 was to be head subject to the provisions at the Act and, therefore, it did not give to the Insolvency Court any power wider than that which was indicated in sec. 53 to annual transfer executed more than 2 years before the date of adjudication on the ground of their being benami executed to defraud creditors. Tiansactions of such a nature must be challenged if at all in an ordinary civil court. THE Oudh case (2) did not follow 1929 Allahabad (J) but preferred the view contained in 1926 Madras 869 and 1927 Calcutta 474.