OFFICIAL ASSIGNEE Vs. RAMCHANDRA KASHERA

JUDGEMENT

(1.) This is an appeal from a judgment of Lort-Williams, J., dated 21 March 1933. That judgment was given in an insolvency proceeding in which the Official Assignee was asking that a certain transaction between the insolvents and a man named Ramchandra Kashera should be set aside as being fraudulent and void. The notice of the application is dated 10 March 1933, and the transaction in question was described thus: The transfer of 35 bags of brass and bell-metal articles and ten bundles of brass and copper sheets by the insolvents in your favour be declared fraudulent and void as against the applicant.

(2.) Lort-Williams, J., took the view that he was bound by the decision in the case of Official Beceiver V/s. Chettyar Firm , which decided that the onus Under Section 55, Presidency Towns Insolvency Act, of proving that the transfer was not made in good faith or for valuable consideration, lay on the Official Assignee. The learned Judge upon that came to the - conclusion that the petition of the Official Assignee failed, because he had not succeeded in discharging the onus that day upon him. It seems that the learned Judge did not have his attention called to the fact that that case was decided on Section 53, Provincial Insolvency Act, and not on Section 55, Presidency Towns Insolvency Act. It is to be observed that there is a slight difference in the language of those two sections. Section 55, Presidency Towns Insolvency Act, says: Any transfer of property, not being a transfer made before and in consideration of marriage, or made in favour of a purchaser or incumbran-cer in good faith and for valuable consideration, shall, if the transferor is adjudged insolvent within two years after the date of the transfer, be void against the Official Assignee.

(3.) Whereas, on the other hand, Section 53, Provincial Insolvency Act, says: Any transfer of property not being a transfer made before and in consideration of marriage, or made in favour of a purchaser or incumbran-cer 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.