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TMI Blog1977 (8) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... the Provincial It Act hereinafter to be referred for short as ' the Act -was for adjudging Pyarelal as an insolvent. On April 5, 1968 the appellant Zohri Lal Soni an Advocate was appointed receiver by the On October 15, 1960 Pyarelal was on his own application as an insolvent by the Additional District Judge, Jodhpur January 4, 1969 the appellant who was the receiver moved the under Section 4 of the Act for declaring the deed of gift dated November 1961 as void and inoperative inasmuch as it was a sham transfer On March 3, 1972 the Insolvency Court of the Additional Judge, Jodhpur, after making an inquiry, upheld the plea receiver/appellant and declared the deed of gift dated November 1961 as being void and inoperative. Thereafter the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not examine the question of title. A number of authorities have been cited by counsel for the parties in support of their respective submissions, but we think the question lies within a very narrow compass. It would appear that Section 4 of the Act was not there in the Insolvency Act of 1907, but was introduced for the first time by Act 5 of 1920. Before 1920, the Provincial Insolvency Act did not contain any such provision as a result of which there was a serious divergence- of judicial opinion on the question as to whether or not an Insolvency Court could determine a question of title regarding a transfer made by the insolvent. Act 5 of 1920, however, set at rest this controversy and gave wide powers to the Insolvency Court to determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consideration shall, if the transferor is adjudged insolvent on a petition presented within two years after the date of the transfer, be voidable as against the receiver and may be annulled by the Court. 6. It was submitted that the effect of Section 53 of the Act clearly is that it bars the jurisdiction of the Insolvency Court to determine the validity of any transfer made beyond two years of the transferor] being adjudged insolvent. It is no doubt true that the words within two years after the date of the transfer being voidable as against the receiver does fix a time-limit within which the transfer could be annulled by the Court. But a plain construction of Section 53 would manifestly/indicate that the words within two years aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading of Sections 4 and 53 of the Act. Indeed if a different interpretation is given, it will render the entire object of the section nugatory, because the Court would be powerless to set at naught transfers which are patently void, merely because they had been made at a particular point of time. 7. Reliance was placed by counsel for the appellant on a Full Bench decision of the Allahabad High Court in Haji Anwar Khan v. Mohamad Khan and Ors. where the following two questions were referred for the decision of the Full Bench: (1) Whether an insolvency Court can try a question of title raised on the basis of a transfer which took place more than two years prior to the adjudication, having regard to the provisions of Section 53, Insolv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansaction. 9. We feel that the view of Sen. J., appears to be based on a correct interpretation of Sections 4 and 53 of the Act. King, J., agreed with Dalai, J. and observed as follows: I see no difficulty, therefore, in giving a meaning and effect to the words subject to the provisions of this Act without construing them in the restrictive sense suggested by my learned brother Sen, J. In my opinion they do not bar the jurisdiction of the insolvency Court to decide a question of title under the ordinary law when the special provisions of the Act do not apply. 10. In a later decision of the Allahabad High Court in Madan Kumar and Anr. v. M/s. Hari Narain Agrawal and Ors. following the Full Bench decision referred to above, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid decision. The Bombay High Court further pointed out that the same view was taken by the Calcutta High Court in Radha Krishna Thakur and Anr. v. Official Receiver , by the Patna High Court in Biseswar Chaudhuri v. Kanhai Sing A.I.R. 1932 Pat. 129 the Nagpur High Court in G.N. Godbole v. Mt. Nani Bai A.I.R. 1938 Nag. 546 and the Lahore High Court in Budha Mal v. Official Receiver A.I.R. 1930 Lah. 122. The only decision which appears to have taken a contrary view is of the Oudh Chief Court in Amjad Ali and Ors. v. Nand Lal Tandon and Ors. A.I.R. 1930 Oudh. 314 which appears to be the shoot-anchor of the argument of the learned Counsel for the respondent. The Oudh Chief Court observed as follows: We do not consider that where in S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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