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TMI Blog1979 (2) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme of composition. In terms of the said scheme of composition, the disputed property along with some other was sold by the Official Receiver to the defendant No. 1, Sm. Bibhabati Dasi by a deed of sale dated Oct. 14, 1955. The said Benoy Krishna Ghatak, however, died before the said sale. There is no dispute about these facts. The present suit was instituted by the plaintiff for the recovery of the sum of ₹ 25,540/-on account of principal and interest due under the mortgage, by the sale of the disputed property under the provisions of Order 34, Rule 4 of the Civil P. C. 3. The defendants are the heirs and legal representatives of the said Benoy Krishna Ghatak. The defendant No. 1 is his widow and the defendants Nos. 2 to 5 are his sons. The suit was contested by the defendant No. 1 alone, the other defendants did not appear in the suit. She denied that any equitable mortgage was created by her husband Benoy Krishna Ghatak in favour of the plaintiff. It was asserted by her that she had purchased the property from the Official Receiver and her purchase not being subject to the alleged mortgage, the plaintiff was not entitled to recover any amount from her. 4. The lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the property which vests in the court or in the receiver. The order of adjudication debars an insolvent to deal with his property in any manner whatsoever. Section 55 of the Provincial Insolvency Act protects some bona fide transactions, namely, (a) any payment by the insolvent to any of his creditors, (b) any payment or delivery to the insolvent, (c) any transfer by the insolvent for valuable consideration, or (d) any contract or dealing by or with the insolvent for valuable consideration, provided, however, that any such transaction takes place before the date of the order of adjudication, and that the person with whom such transaction takes place has not at the time notice of the presentation of any insolvency petition by or against the debtor. It, therefore, follows that the above transactions are protected under two conditions, namely, (1) that any such transaction takes place before the date of the order of adjudication, and that (2) the person with whom such transaction takes place has no notice of the presentation of any insolvency petition. It is implied from the proviso to Sec. 55 that any transaction taking place after the date of the cruder of adjudication is not pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e circumstances, it is contended, that the receiver had by necessary implication made the insolvent the ostensible owner of the disputed property and, accordingly, the transfer of the disputed property in favour of the appellant, who acted in good faith was legal and valid. This contention is equally untenable. There is no provision in the Provincial Insolvency Act that after an order of adjudication is made the receiver shall take possession of the property and also mutate his name in the municipal records as the owner thereof. The receiver has no power to remove any person from the possession of the property. It is only the court which can dispossess an insolvent or any person from the possession of the insolvent's property. The principal duty of the receiver is to realise the assets of the insolvent, and distribute them amongst the creditors. The duties and powers of the receiver have been enumerated in Section 59 of the Act. Such duties and powers do not include the taking of possession of any immovable property of the insolvent by dispossessing him. The doctrine of ostensible ownership, therefore, does not apply to a transfer of immovable property by a person who has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be called for. In our view the application is not maintainable and moreover, we are unable to allow such a prayer. The application is, accordingly, dismissed. 9. It is contended on behalf of the appellant on the basis of the plain copy of the order dated June 10, 1955 that the learned District Judge in accepting the scheme of composit ion directed the sale of the disputed property to the defendant No. 1, the wife of the insolvent, subject to the mortgage. In the first place, we cannot look into the order which, as aforesaid, is not a certified copy of the order and, in the second place, there is no such direction in the order. In the circumstances, the contention is rejected. 10. Next it is contended on behalf of the appellant that in view of the decisions in Shiam Sarup v. Nand Ram, ILR 43 All 555 : (AIR 1921 All 232) and Rup Narain v. Har Gopal, ILR 55 All 503 : (AIR 1933 All 449) it should be held that the equitable mortgage was validly created. In the first mentioned case, a subsequent mortgage was created during the insolvency proceeding for the purpose of paying off the first mortgagee who was the only creditor of the insolvent and who consented to the realisation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1 after an order of annulment of the order of adjudication. In our view, the court could not pass any order directing the vesting of the disputed property in the insolvent or his heirs, since under the scheme of composition accepted by the court, the disputed property was directed to be sold by the receiver to the defendant No. 1. The contention made by the appellant in this regard has no substance at all and cannot be accepted. 12. Before we part with this case, we may dispose of a short point that has been urged on behalf of the appellant. It has been argued that the defendant No. 1 is the benamdar of the insolvent and, as such, is bound by the mortgage. It is now well established that a person who alleges a transaction to be a benami transaction must prove the same. The appellant has not adduced any evidence whatsoever to prove that the purchase of the disputed property by the defendant No. 1 from the receiver in insolvency was a benami purchase. It is, however, contended on behalf of the appellant that on the facts that low price was paid by the defendant No. 1 for the purchase of the property, and that she did not come to depose in the present suit disclosing her sourc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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