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TMI Blog1945 (7) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... ge and obtained a preliminary decree which was made final on 19th November 1932. In pursuance of the decree possession was taken on 26th November 1932. Some of the unsecured creditors of the mortgagor thereafter applied to get the mortgagor adjudged insolvent. This application for insolvency was filed on 6th December 1932, and the mortgagor Khuahal was adjudged insolvent on 26th June 1934. After adjudication the creditors applied for annulment of the mortgage dated 2nd January 1931 in favour of Govindram and Deokisan under S. 53, Provincial Insolvency Act. The mortgage was annulled on 2nd February 1937. Thereafter the creditors applied to the Court for recovery of mesne profits from the transferees Govindram and Deokisan from the date on wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We mention this because an attempt was made in the Courts below to urge that the case fell under s. 54, Provincial Insolvency Act, and not under s. 53. On a perusal of the record we are clearly of the opinion that the creditors had applied for setting aside the transfer under s. 53, Provincial Insolvency Act, and the case was treated throughout as one falling under S. 53 only. The contention that it also fell under s. 54, Insolvency Act, was, therefore, rightly abandoned by the counsel for the appellants before Rs. Section 53, Provincial Insolvency Act, runs as under : Any transfer of property not being a transfer made before and in consideration of marriage or made in favour of a purchaser or incumbrancer in good faith and for valuable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Luck. 64 : 59 I.A. 147 : 136 I.C. 108 (P.C.), Satgur Prasad v. Har Narain that such a transfer is void from its inception and mesne profits are claimable from the date of the transfer and not from the date of the order of annulment. The Privy Council case was one between the parties to the transaction, which was set aside on the ground that it had been obtained by undue influence and fraud. In such a case, their Lordships of the Privy Council held on a finding being arrived at that the transaction was obtained by undue influence and fraud it ought to be held that the possession of the transferee was wrongful from the date on which he entered into possession in pursuance of such a transfer. Their Lordships very clearly stated that the transa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the reversioner has to set aside any transaction before he becomes entitled to possession thereof. This was very clearly pointed out by their Lordships of the Madras High Court at p. 926 of the above mentioned ruling. Both these cases were, therefore, cases in which the plaintiff was not bound by law to set aside the transaction at his option and are, therefore, clearly distinguishable from the case falling under S. 53, Provincial Insolvency Act. 6. Pollock J. in ('36) 23 A.I.R. 1936 Nag. 139 : 31 N.L.R. Sap. 178: 161 I.C. 689, Balkrishna v. Digambardas held that if a transfer was annulled under s. 53 the possession of the transferee was not wrongful till it was annulled. He further held that a. transfer coming under s. 54, Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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