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1953 DIGILAW 141 (MAD)

Veeraraghavamma v. Padmaraju

1953-04-02

MACK

body1953
Judgment.- The appellants are three alienees from the insolvents. Their alienations have been set aside by the learned District Judge of East Godavari as fraudulent preferences under section 54 of the Provincial Insolvency Act, on applications filed by a decree-holder creditor, admittedly to the tune of about Rs.30,000. The Official Receiver declined to move the Court to set aside the alienations, and the petitioner had no option but to apply to the Insolvency Court. There were altogether six alienations set aside by the learned District Judge on six different applications filed, in a common order. The insolvents were adjudicated on 27th January, 1947, on a creditor’s application filed on 5th November, 1945. C.M.A.No.234 of 1950 is now of academic interest. The alienee was a lessee from the insolvents for a period of five years of a rice mill for a rent of Rs.100 a month The date of the lease was 15th August, 1945 and it was registered on 27th October 1945. The period of lease expired shortly after this appeal was filed. It is common ground that the Official Receiver has taken possession of the mill. Mr. Ramamurthi, in the circumstances, for the alienee who is also a transferee from the original lessee does not press this appeal as it has now become infructuous. It is dismissed with costs of the respondent-creditor. C.M.A..No.324 of 1950 raises an interesting point of law for determination. In this case the alienee-appellant was a creditor under a pronote, Exhibit B-24, dated 25th August, 1943, for a sum of Rs.2,500. On 20th July, 1945, he took a sale under B-23 from the insolvent of 5-19 acres of dry land for a consideration of Rs.4,400 made up as follows: (1) Rs.2,558-2-0 in settlement of his own pronote debt; (2) the discharge of a pronote debt under Exhibit B-13, dated 1st June, 1945, amounting to Rs.1,214-11-6 due to one Subba Rao (R.W. 10); (3) Rs.320 to be paid to one Adinarayanamurthi due under a pronote, the payment being evidenced by Exhibit B-25; (4) a balance of Rs.307-2-6 paid before the Sub-Registrar. The learned District Judge had no reason for doubting that Exhibit B-23 was executed for full -consideration and while setting aside this alienation directed the alienee to prove his debt in the insolvency. Mr. Umamaheswaram contends that this alienee was a perfectly bona fide creditor who took the alienation to discharge genuine debts. The learned District Judge had no reason for doubting that Exhibit B-23 was executed for full -consideration and while setting aside this alienation directed the alienee to prove his debt in the insolvency. Mr. Umamaheswaram contends that this alienee was a perfectly bona fide creditor who took the alienation to discharge genuine debts. There can, however, be no doubt that this alienation would be a fraudulent preference within the scope of section 54 of the Provincial Insolvency Act and is for the reasons given by the learned District Judge, a fraudulent preference, the most cogent being that this decree-holder for Rs.30,000 who had expended a great deal of money in obtaining decrees was rather blatantly disregarded and preference given to the simple creditors to pay whom Exhibit B-23 was effected by the insolvents. On its merits this appeal must also fail. Mr. Natesan for the respondent has put forward a legal objection to this alienation not taken before the District Judge, which I think must also prevail. He contends that it is void in any event under sub-sections 2 and 7 of section 28 of the Provincial Insolvency Act as a transfer which was really effected subsequent to the filing of the insolvency petition on 5th November, 1945, in that Exhibit B-23 which was executed on 20th July, 1945, by the four executants was registered only on 17th November, 1945. The executants of Exhibit B-23 are the three brothers adjudged insolvents and a stranger. The registration of Exhibit B-23 was several days after the filing of the insolvency petition on 5th November, 1945. Mr. Natesan relies on a Bench decision of this court in Venkadari Somappa v. Official Receiver of Bellary1 by Madhavan Nair and Stodart, JJ., which clearly lays down that for the purpose of section 54 of the Provincial Insolvency Act, the date of the transfer is the date of the registration of the document and not the date of its execution, and the transfer cannot be ante-dated by the operation of section 47 of the Registration Act which lays down that a registered document shall operate from the time which it would have commenced to operate if no registration thereof has been required or made and not from the time of its registration. The view taken in that decision was that the transfers effected after the petition has been filed, if the transferor is ultimately adjudged insolvent, are void as against the Official Receiver in view of sub-sections 2 and 7 of section 28 of the Provincial Insolvency Act. In another decision in Iswarayya v. Subbanna2, Madhavan Nair and Bardswell, JJ., laid down that the three months’ period prescribed by section 9(1)(c) of the Provincial Insolvency Act must be calculated from the date of the registration of the deed and not from the date of its execution. My attention has been drawn to a recent decision by Balakrishna Iyer, J., in Narayanaswamy Kone v. Narayanaswami1, where he took the view which appears to be in conflict with these two Bench decisions, namely, that the time in such a case must be computed from the date of the presentation of the document for registration in view of section 47 of the Registration Act. With respect, I am unable to agree and I prefer to follow the law laid down in the two Bench decisions by which also I am ordinarily bound. It is the registration of a sale deed which not only completes it and makes it valid but also gives notice to the alienees of the fact of the alienation. It would be manifestly inequitable and unjust to debar a creditor from founding a petition on an act of insolvency alleged under section 54 within three months of the registration of the document when alone he may have become aware of it, and to dismiss his petitions on the technical ground that the act of insolvency was not within three months of the date on which the insolvency petition was filed reckoning from the date of the presentation for registration or date of execution. Mr. Umamaheswaram has relied on a Full Bench decision of the Rangoon High Court in U On Maung v. Maung Shwe Hpaung2, which took a different view and held that the period of three months referred to in section 54 would begin to run from the date of the execution of the transfer provided it has been properly registered within the specified time and not from the date of the registration. With respect, I am in complete agreement with the view taken by the Bench decision in Venkadari Somappa v. Official Receiver of Bellary3and hold that as Exhibit B-23 was registered after the insolvency petition was filed and the order of adjudication relates back to the date on which the insolvency petition was presented, the alienation is void as against the Official Receiver. On this legal ground also the appeal must fail and is dismissed with costs. C.M.A.No.203 of 1951. The alienee is a sister of the insolvent to whom he conveyed by a registered sale deed, Exhibit A-2, dated 28th October, 1945, a house for Rs.1,000. The appellant contended that she had given her jewels to her brother for sale and that it was to discharge this debt that he had conveyed the house to her. The learned District Judge saw no reason to suspect the consideration and directed her to be ranked as an ordinary creditor and to prove her debt. This alienation is also on the same footing as that considered in C.M.A.No.234 of 1950 on its merits. This is clearly also a case of fraudulent preference by the insolvents in favour of their sister without making any attempt to discharge the heavy decree debts of the respondent. This appeal is also dismissed with costs. R.M. ----- Appeals dismissed.