VINAYAK SHAMRAO Vs. MORESHWAR GANESH PHADE

JUDGEMENT

(1.) I agree with Bose J., that a single Judge of the High Court is bound by the decision of the Division Bench, even though the decision is not reported. It appears to be the established practice in India. In Sri Venamamalai v. Venkataramana A.I.R. 1922 Mad. 183 Devadoss J. remarked "Sitting as a single Judge, I am bound by a decision of a Bench of this Court in Koothan v. Kulla Vandu A.I.R. 1916 Mad. 587:" see also Mayankutti v. Kathiri A.I.R. 1925 Mad. 441. Prom the point of view of the judgment becoming a judicial precedent what is material is the decision in the case; it is the decision and not the opinion of the Court nor the report of it that makes the precedent. Hence an unreported case may be cited as an authority if the actual decision can be shown from the original sources (Black on Judgments, pp. 138-189 quoted at paras. 273-74 in the Use of Judicial Precedents by P. Ramnath and N.S. Ranganath Aiyars). It is the decision which establishes the precedent and the report but serves as evidence of it. In Corder v. Morgan. (1802) 18 Ves. 344 a manuscript report of a case was cited at the bar and was referred to in the judgment as being an authority applicable. In Prestion v. Funnell (1739) 7 MR 296, the Chief Justice speaking of a case cited to him from Salkeld's Reports said. "I have a fuller manuscript (note of the case) than the report in the Salkeld." The reason is to be found in the observations of Jessel M.R. in In re Hallett's Estate (1879) 13 Ch. D. 696: The only use of authorities, or decided eases, is the establishment of some principle which the judge can follow out in deciding the ease before him. The point was well put by Mr. (now Right Hon.) M.R. Jayakar in his speech during the debate in the Indian Legislative Assembly on the Indian Law Reports Bill, 1927, in the following terms: "What constitutes the authority of a decision, Sir? What recommends it to universal adoption? Its merits, not its publication in a particular series. It is always available in the files of the High Court where it was pronounced. The reporter does not manufacture any thing of his own. He only puts the decision in the authorised series and makes it available to the public in an easy manner." (Page 278, The Use of Judicial Precedents by Aiyar).

(2.) BUT , on the other point, with due deference to my learned brother Bose J., I do not feel pressed to depart from the view to which I was a party in G.N. Godbole v. Mt. Nani Bai A.I.R. 1938 Nag. 546. As pointed out by Bose J. himself the decisions of the High Courts in India which are relied on are those in which the transfers were impugned as nominal and colourable. Such fictitious transactions do not involve transfer of title and the property affected by them continues to vest in the insolvent notwithstanding the ostensible which serves only as a cloak. In such cases I have no doubt that Section 4, Provincial Insolvency Act, is applicable. But as to those transactions which are real but are intended to delay or defeat the creditors, I am still of the opinion that Section 4 cannot be invoked for setting aside the transactions when they are more than two years old. I do not wish to add to what has already been said in G.N. Godbole v. Mt. Nani Bai A.I.R. 1938 Nag. 546. All that I should like to do is to point out that L. Subrahmanya Sastri in his commentary on the Provincial Insolvency Act remarks that Anwar Khan v. Muhammad Khan requires reconsideration (see p. 32).

(3.) THE scope of the authority so conferred was defined by Lord Selborne in Ellis v. Silber (1872)8 Ch. A. 83: That which is to be done in bankruptcy is the administration in bankruptcy. The debtor and the creditors, as the parties to the administration in bankruptcy, are subject to that jurisdiction. The trustees or assignees, as the persons entrusted with that administration, are subject to that jurisdiction. The assets which come to their hands and the mode of administering them are subject to that jurisdiction; and there may be, and I believe are, some special classes of transactions which, under special clauses of the Acts of Parliament, may be specially dealt with as regards third parties. But the general 5 proposition, that whenever the asignees or trustees in bankruptcy or the trustees under such deeds as these have a demand at law or in equity as against a stranger to the bankruptcy, then that demand is to be prosecuted in the Court of Bankruptcy, appears to me to be a proposition entirely without the warrant of anything in the Acts of Parliament, and wholly unsupported by any trace or vestige whatever of authority.