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In Re: Varikanti Ankanna - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1958CriLJ159
AppellantIn Re: Varikanti Ankanna
Excerpt:
.....governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - the father's power to dispose of the joint property is not absolute, but conditional on his having debts which are liable to be satisfied out of that property;.....the act forbade was a transfer of his property and the right that he possessed was only a lease-hold right, which could not be regarded as 'property' within the meaning of section 2(d) of the act. the district magistrate finding the accused guilty under sections 69(a) and 69(c)'(2), sentenced him to undergo rigorous imprisonment for three months, under each charge, the sentences to run concurrently. this was upheld by the sessions judge.3. the point that is now sought to be made out by the learned counsel for the petitioner is that this lease that he obtained from the landlord in 1952 was a subordinate interest and could not be regarded as property belonging to the petitioner under the act. section 69 of the act reads as under:if a debtor where before or after the making of an order.....
Judgment:
ORDER

Srinivasa Chari, J.

1. This is a revision directed against the order of the Sessions Judge, Anantapur, who confirmed the conviction made and the sentence awarded by the District Magistrate, Gooty. The petitioner before me was adjudged an insolvent on his own application on 5th August 1953. by the District Judge, Anantapur. It is alleged that in his insolvency petition, he did not mention that he had an interest in a piece of land situated in Lingareddypalli, comprised in Survey No. 42. It would appear that he also held a permanent lease of this land under a registered lease-deed dated 21st Feb.. 1950. The further facts that are alleged against the petitioner are that subsequent to the filing of the insolvency petition before the District Judge and before he was adjudged an insolvent, he transferred his right in 50 cents of this land in favour of a third party who has been examined as P.W. 2 in the criminal case against him, by means of a document dated 28th April 1953, and his right in the remaining portion of the land, he appears to have transferred in favour of his concubine on 1st of July 1953/

2. The Insolvency Act makes it obligatory upon the insolvent to give a true and correct statement of his assets and deliver the same to the Receiver. The insolvent is also forbidden from transferring any of his property after he had filed the insolvency petition. If he contravenes any of these conditions then he is liable to punishment under Section 69 of the Provincial Insolvency Act. The facts, no doubt, are proved that there was a transfer as alleged by the prosecution in favour of P.W. 2 and P.W. 3 but the petitioner contended that the conveying did not amount to any offence under the Act, because what the Act forbade was a transfer of his property and the right that he possessed was only a lease-hold right, which could not be regarded as 'property' within the meaning of Section 2(d) of the Act. The District Magistrate finding the accused guilty under Sections 69(a) and 69(c)'(2), sentenced him to undergo rigorous imprisonment for three months, under each charge, the sentences to run concurrently. This was upheld by the Sessions Judge.

3. The point that is now sought to be made out by the learned Counsel for the petitioner is that this lease that he obtained from the landlord in 1952 was a subordinate interest and could not be regarded as property belonging to the petitioner under the Act. Section 69 of the Act reads as under:

If a debtor where before or after the making of an order of adjudication.

a) wilfully fails to perform the duties imposed on him by Section 22 or to deliver up possession of any part of his property which is divisible among his creditors under this Act, and which is for the time being in his possession or under his control to the Court or to any person authorised by the Court to take possession of it; or

b) fraudulently, with intent to conceal the state of his affairs or to defeat the objects of this Act,

i) has destroyed or otherwise wilfully prevented or purposely withheld the production of any document relating to such of his affairs as are subject to investigation under this Act, or

ii) has kept or caused to be kept false books, or

iii) has made false entries in or withheld entries from or wilfully altered or falsified any document relating to such of his affairs as are subject to investigation under this Act, or

c) fraudulently, with intent to diminish the sum to be divided among his creditors or to give an undue preference to any of his creditors,

i) has discharged or concealed any debt due to or from him, or

ii) has made away with, charged, mortgaged or concealed any part of his property of any kind whatsoever.

he shall be punishable on conviction with imprisonment which may extend to one year.'

4. The word 'property' has been defined in Section 2(d) of the Act as follows:

'property' includes any property over which or the profits of which any person has a disposing power which he may exercise for his own benefit.

5. It has to be observed that the term 'property' is a generic term for all that a person has domain over. The word 'includes' in Section 2(d) of the Act would show that the definition of the property in the Act is not exhaustive. The underlying principle is that everything which belongs to the insolvent which could pass from him to the trustee in bankruptcy arid can be turned to profit should be divided amongst the creditors. The property might not belong to the debtor but yet he may have a disposing power exercisable for his own benefit. AU the debtor's property and all that he could dispose of for his own benefit would pass on to the Receiver. The word property cannot be held to be confined to the material object. It would also cover a right in and over the object. The property may be owned by another but the lease-hold, mortgage or other rights over such property would also be regarded as 'property'. Such rights, it must be said, cannot be left out of the connotation of the word 'property'. The definition of property as made by Langdeli, M. R., in Jones v. Skinner, (1835) 5 LJ Ch 87 (A), has always been referred to as giving a comprehensive definition of the word property., Lingdeli, M. R., described 'property' as being the most comprehensive of all the terms which can be used and it is indicative of every possible interest which the party may have.

6. learned Counsel for the petitioner referred me to certain decisions ol the Indian High Court and also a judgment of the Privy Council. He adverted to the case of Sat Narain v. Beharilal A.I.R. 1925 PC 18 (B). In that case their Lordships while considering Section 2(d) of the Provincial Insolvency Act, observed:

The father's power to dispose of the Joint property is not absolute, but conditional on his having debts which are liable to be satisfied out of that property; and Section 2 seems to contemplate an absolute and unconditional power of disposal.

The question in that case was as to whether the father's power in dealing with the joint family property were absolute or not. They held that they (the powers) were not absolute and while holding so, said that Section 2 requires that the property of the insolvent which could be recorded as his assets must be one over which he has an absolute right of appeal. There can be no doubt that the insolvent in this case had an unconditional disposing power over the lease-hold interest. Another case which was brought to my notice was the case of Wadhawa Singh v. Emperor A.I.R. 1918 Lah 247 (2) (C)'. That case can have no application to the facts of this case, because in that case the insolvent was not held to be guilty of the offence, as it was found as a fact that he forgetfully omitted to mention the equity of redemption and the creditors were aware of the same. Therefore, the test being as to whether the insolvent had a disposing power over the lease-hold interest or not, which he possessed, he having an absolute disposing power, it would fall within the definition of the word 'property' under Section 2(d) of the Act. I am, therefore, of the opinion that the Courts below were right in holding that the petitioner not having mentioned the lease-hold interest that he had in 1 acre and 50 cents in Survey No. 42, he was guilty under Section 69 of the Act and has been rightly convicted. No question of the petitioner bona fide believing that the lease-hold was not the property of the insolvent can arise in this case, because the dates of transfer would show that he transferred this right after the riling of the application and before he was adjudged an insolvent only with a view to keep them away from the list of assets which had to be placed at the disposal of the Receiver, I do not see any reason to reduce the sentence awarded by the lower Courts. The revision petition is, therefore, dismissed.


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