JUDGMENT.- The Official Assignee, Madras, has taken out this application by Judge’s Summons under section 7 of the Presidency Towns Insolvency Act (hereinafter referred to as the Act), to declare that the site at No. 3/2-A, College Road, Nungambakkam, Madras, and the building put up thereon are the sole and exclusive property of Dinshaw K. Tehrani, the second respondent insolvent, that the deed of release dated 27th August, 1955, executed by the insolvent in favour of his wife, the first respondent, is sham and nominal and was not intended to confer any title upon the first respondent and that the entire property vests in the Official Assignee and is available for the benefit of the creditors. In the alternative, the Official Assignee has prayed that if it is considered necessary the deed of release may be set aside as fraudulent as against the creditors made with the intention of defeating and delaying the creditors. The Official Assignee has also prayed for delivery of possession of the property. The second respondent, who was engaged in the business of producing cinema films, was adjudged insolvent on his own application on 2nd December, 1964. He admitted debts to the tune of Rs. 3,20,343-58. In the petition to adjudge him insolvent he stated that the property in question was purchased in the joint names of himself and his wife, that he had no beneficial interest therein, the same having been -exclusively acquired out of his wife’s own funds and that his name was included only nominally. The site originally belonged to one Md. Shamsuddin Sahib. He conveyed it under the sale deed Exhibit P-1 dated 5th July, 1948 for Rs. 21,595-11-8 in favour of both the respondents. The endorsement made by the Sub-Registrar upon that registered sale deed says that on behalf of the two respondents one Purushotham handed over a crossed cheque drawn on the Chartered Bank of India in favour of the vendor for Rs. 21,595-11-8. That cheque had been issued by late Advocate Rangachari. After purchasing the site, a superstructure was put up on it. The two respondents jointly executed a simple mortgage deed on 12th July, 1952, in favour of the Midland Insurance Company for a sum of Rs. 25,000 for the purpose of the construction. 21,595-11-8. That cheque had been issued by late Advocate Rangachari. After purchasing the site, a superstructure was put up on it. The two respondents jointly executed a simple mortgage deed on 12th July, 1952, in favour of the Midland Insurance Company for a sum of Rs. 25,000 for the purpose of the construction. On 27th August, 1955, the second respondent insolvent executed the release deed Exhibit P-3 in favour of his wife, the first respondent, reciting inter alia that the beneficial interest in the property exclusively belonged to the first respondent, that it was her money that was used for the purchase of the land, that the name of the husband insolvent was included in the sale deed for the purpose of convenience merely with a view to obviate the necessity of the personal attendance of the wife in interviewing the public authorities for mutation of names in the revenue registers, securing actual possession of the plot, effectuating sub-division, etc. that it was not intended that the insolvent should have any manner of right, title or interest in the site, that the first respondent wife had applied and received the necessary quota for purchase of steel requirements for the construction, that the first respondent was dealing with the property as her own that in view of the inconvenience which the wife was experiencing she pressed her husband to execute a proper deed of release and relinquishment and that in order to dispel the cloud of doubt upon the exclusive title of the wife, the husband executed the deed of release. After this release, the property came to stand solely in the name of the wife, the first respondent. 2. After this release, the property came to stand solely in the name of the wife, the first respondent. 2. The case of the Official Assignee is that the insolvent had trouble with the income-tax authorities for his unaccounted wealth, that the entire consideration for the purchase of the plot was found only by the insolvent, that the insolvent’s wife had no wherewithal to purchase the property, that with a view to put off the scrutiny by the income-tax authorities, the insolvent included his wife’s name in the purchase of the property, that the insolvent himself put up the construction out of his funds and out of the fund borrowed from Midland Insurance Company, that the property belonged exclusively to the insolvent, that in about 1955 the insolvent became heavily involved when he had to meet the claims of several artists engaged in the films, that with a view to screen the property he executed the release deed containing false recitals and that the first respondent wife has no manner of title to the property. 3. The respondents have filed separate counter statements but putting forward the same contentions. The defence is that the plot was purchased exclusively with the funds of the first respondent, that the first respondent put up the superstructure with her own funds and dealt with the property as her own, that the first respondent discharged the debt borrowed from Midland Insurance Company, that the first respondent had monies belonging to her having been given to her by her father and had monies borrowed from relations, that with those monies the construction was put up and that the insolvent had no title to the property. The case of the Official Assignee with regard to the release deed is controverted and it is alleged that the release deed was executed only in recognition of antecedent title of the first respondent and that the insolvent never had any manner of title. It is also contended that the Official Assignee is not entitled to the reliefs asked for in this proceeding under section 7 of the Act. 4. The pleas with regard to limitation and jurisdiction raised by the respondents were considered as preliminary issues and found against them by order dated 5th February, 1971. ................................. [After discussing the Evidence His Lordship said:] 13. 4. The pleas with regard to limitation and jurisdiction raised by the respondents were considered as preliminary issues and found against them by order dated 5th February, 1971. ................................. [After discussing the Evidence His Lordship said:] 13. On the evidence discussed above, my conclusion on the facts are: (i) There is no proof that the money utilised for the purchase of the site belonged exclusively either to the first respondent or to the second respondent; (ii) There is no proof that either the first respondent or the second respondent spent exclusively for the construction; (iii) The cheque towards the consideration for the purchase of the site was given to the vendor on behalf of both the respondents thereby showing that the amount belonged to both of them; (iv) The amount spent for the construction of the building was raised by both the respondents jointly executing a mortgage in favour of the Midland Insurance Company describing themselves as absolute owners; and (v) A portion of the mortgage has been proved to have been discharged by payments made by the first respondent. 14. We may next advert to the question whether there was any motive for the second respondent in obtaining the sale deed jointly in his name and in the name of his wife. The contention of the Official Assignee is that the name of the first respondent was included nominally without any intention of conferring title on her. On the other hand, the case of the first respondent is that the name of her husband, the second respondent, was included with a view to obviate the necessity of her appearing in public offices in connection with mutation of names, etc. It is necessary to examine which of these two versions is established. ................................. [After discussing the evidence His Lordship said:] Thus, on the facts it is not possible to accept the case of the respondents that the name of the second respondent was included only nominally. As there is no material to displace the inference that follows from the apparent tenor of the document, it has to be held that both the respondents are jointly entitled to the property. 15. We may next deal with the question as to whether the release deed in question was executed by the second respondent with a view to defraud his creditors. 15. We may next deal with the question as to whether the release deed in question was executed by the second respondent with a view to defraud his creditors. The case of the Official Assignee is that in August, 1955, when the release deed Exhibit P-3 was executed, the second respondent was in great financial strain and that, therefore, he hit upon the idea of executing the release deed to defraud his creditors. On the other hand, the contention of the respondents is that the release deed was executed only in recognition of the pre-existing title of the first respondent and with a view to obivate any cloud that may be existing upon the title to the property on account of the inclusion of the name of the second respondent in the sale deed. It is also their case that the second respondent was not in financial difficulties at that time. On this aspect, there is abundant evidence to prove the case of the Official Assignee. ................................. [After discussing the evidence His Lordship proceeded:] 19. From the facts discussed above, I conclude that at the time of the release, the second respondent was heavily involved in debts and that the release is not a bona fide transaction, but is one that was conceived with a view to put off the half share of the second respondent in the name of his wife, the first respondent so that it may not be available for the creditors of the second respondent. 20. It is contended on behalf of the first respondent that the impugned transaction is one of release, that such a transaction cannot be called a “transfer” within the meaning of section 53 of the Transfer of Property Act and that, therefore, the Official Assignee is not entitled to impugn the transaction. Section 5 of the Transfer of Property Act defines the expression “transfer of property” as meaning an act by which a living person conveys property in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons and ‘to transfer property’ is to perform such. act. Section 53 inter alia provides: “Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed”. act. Section 53 inter alia provides: “Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed”. Placing reliance upon the aforesaid definition of “transfer of property” and the expression “every transfer” occurring in section 53, Mr. Radhakrishnan, Counsel for the first respondent, contended that release is not a “ transfer of property” within the meaning of the Transfer of Property Act and that, therefore, the impugned transaction is not hit by section 53. I am unable to accept this argument. In this connection, the following passage in the Law of Insolvency in India by Mulla, second edition, at page 601 is relevant: “ The expression” voluntary transfer “ in section 52 is not limited to any particular form of alienation of his property by the debtor. The expression is wide enough to cover all sorts of devices that may be practiced or suffered by the debtor to deprive the creditors of the benefit of his property. Section 53 of the Provincial Insolvency Act refers to ‘any transfer’ which include a transfer made by a decree. A transfer made by a nominal transferee from the insolvent can fall within the purview of the section and can be set aside where it can be gathered from the circumstances of the case that the real transferor was the insolvent himself and that both the transfers were intended to be part of one transaction”. The word “transfer” is defined in section 5 with reference to the word “convey”. This word in English Law in its narrower and more usual sense refers to the transfer of an estate in land; but it is sometimes used in a much wider sense to include any form of an assurance inter vivos. The definition in section 205 (1) (ii) of the English Law of Property Act is: “ Conveyance includes a mortgage, charge, lease, assent, vesting declaration, vesting instrument, disclaimer, release and every other assurance of property or of any interest therein by any instrument except a will”. This is a special definition adopted for the purposes oft he Law of Property Act. 1925. The word ‘conveys “ in section 5 of the Indian Act is obviously used in the wider sense referred to above. This is a special definition adopted for the purposes oft he Law of Property Act. 1925. The word ‘conveys “ in section 5 of the Indian Act is obviously used in the wider sense referred to above. That was the meaning given to the word” transfer “ occurring in section 53 while dealing with a transaction of gratuitous remission of debt due to the debtor, in Lakskmi Ammal v. Srinivasa Iyengar1. The Bench observed at page 482: ”The effect of a creditor voluntarily remitting the whole or a portion of a debt will be to put it out of the reach of his creditor just as much as a gift of the debt to a third person. In either case there is no consideration for the transaction and though section 53 of the Transfer of Property Act will not apply in terms, the principle on which it is based will apply. It is not necessary under section 53 that the transferor should reserve a benefit to himself, as gifts to a third party are as much, voidable as other transfers. Supposing that the only property a person has is a large sum due to him from a relation of his and that he to defeat his creditors, remits the debt, is there any principle on which the case can be distinguished from one where he makes a gift of the debt to a third person? We think not. No authority has been cited for such a distinction being drawn, and it would open a wide door to fraud if the remission of a debt is placed on a different footing from a transfer". Following this principle, it was held by Mockett, J., in Official Assignee v. Kanniah Naidu1, while dealing with a case under section 55 of the Presidency Towns Insolvency Act, that the expression "voluntary transfer" is wide enough to cover all sorts of devices that may be practised or suffered by an insolvent to deprive the creditors of the benefit of his property and that, as such, the remission of a debt without consideration amounts to a "voluntary transfer" within the meaning of section 55 of that Act. I find that though the second respondent has chosen to execute a document styling it only as a release deed in favour of his wife, the transaction amounts to a "transfer" within the meaning of the Act and that the transaction is liable to be impugned in this proceeding. 21. Mr. Venkatarama Iyer, appearing for the Official Assignee, contended that even on the first respondent’s own showing the money that was available with her represented the savings made by her out of the monies given to her by her husband, the second respondent, for family expenses that such saving should be treated as the property of her husband and that any acquisition made with such saving should be held to be the property of her husband., There is no evidence on this aspect. In support of the above argument, the learned Counsel made elaborate citations of authorities. The argument of Mr. Venkatarama Iyer was on the basis of what the first respondent was said to have stated in the course of the public examination before the Official Assignee. My attention has not been drawn to any evidence on this aspect. The Official Assignee was frank enough to concede that there is no evidence on record in this enquiry on this respect. It is, therefore, unnecessary to refer, to those authorities. 22. To recapitulate, the sale deed in respect of the site stands in the name of both the respondents. There is no positive evidence to show that the consideration was found either by the first respondent or by the second respondent. The construction was put up with the amount borrowed by both the respondents declaring themselves to be the owners of the property. In these circumstances, the apparent tenor of the document has to be given effect to and It has to be held that each of the respondents is entitled to one half-share in the property. The release deed was executed by the second respondent at a time when he was very heavily involved in debts. The attendant circumstances clearly show that the device of release was adopted to screen the half share of the second respondent from being proceeded against by his creditors. This release cannot affect the rights of the Official Assignee representing the creditors of the second respondent. The attendant circumstances clearly show that the device of release was adopted to screen the half share of the second respondent from being proceeded against by his creditors. This release cannot affect the rights of the Official Assignee representing the creditors of the second respondent. The said release deed is hereby set aside as it is proved to have been executed with intent to defeat and delay the creditors of the second respondent. The Official Assignee is at liberty to take such action as he may be advised for working out his rights as regards the half share of the second respondent in the property. The Official Assignee is entitled to his costs in this application from the first respondent. Advocate’s fee Rs. 200. V.S. ----- Order accordingly.