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P.K. Banerji, Official Liquidator Vs. Mangal Prasad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All243; 137Ind.Cas.235
AppellantP.K. Banerji, Official Liquidator
RespondentMangal Prasad
Excerpt:
- - chettiar firm (1) that the burden of proof is upon the receiver to show that the transfer sought to be impugned had not been made in good faith and for full consideration. the court of first instance had recorded a categorical finding that these promissory notes had been executed for good consideration. of course an inadequate consideration may be evidence of want of good faith which may itself be sufficient for the setting aside of the transfer. 3. in this particular case the learned judge has found that there was no want of good faith......instance had recorded a categorical finding that these promissory notes had been executed for good consideration. the learned judge has not differed from that finding. he has further come to the conclusion that the consideration was for value inasmuch as it could not be disputed that rs. 500 due to the usufructuary mortgagee had been paid up.2. the learned advocate for the appellant contends that the expression valuable consideration' must mean consideration which is fully adequate. 'valuable consideration' in section 53, u.p. insolvency act, has been explained in stroud's judicial dictionary as meaning money or money's worth and 'valuable' as meaning real as distinguished from a consideration that is merely illusory or nominal; but not necessarily meaning equivalent. the.....
Judgment:

Sulaiman, Ag. C.J.

1. This is an appeal by the Official Receiver from an order of the insolvency Court refusing to set aside a sale dated 4th October 1926. It has now been finally settled by the pronouncement of their Lordships of the Privy Council, in the case of the Official Receiver v. P.L.K.M.E.M. Chettiar Firm (1) that the burden of proof is upon the receiver to show that the transfer sought to be impugned had not been made in good faith and for full consideration. In the present case the sale deed was ostensibly for Rs. 1,500 out of which Rs. 500 were set forth against an amount due on a usufructuary mortgage in favour of the vendee's son, Rs. 500 were to be paid to one Shahzade Lai said to be due on a promissory note dated 5th September 1926, Rs. 450 wore to be paid to Kishore Lai on a promissory note dated 2nd May 1926 and Rs. 50 were paid in cash before the Sub-Registrar. The vendee led evidence to prove the due execution of the mortgage deed and the promissory notes, and the attesting witnesses showed the passing of consideration. As pointed out by the learned Judge there was no evidence whatsoever on the side of the receiver to contradict the statements of the witnesses. The learned Judge declined to presume that merely because the vendor became insolvent afterwards the promissory notes were fictitious and not genuine. There may be one or two points which might arouse one's suspicion but the burden being on the receiver to prove that no consideration had passed on these promissory notes he had to lead affirmative and substantive evidence to substantiate such a plea. The Court of first instance had recorded a categorical finding that these promissory notes had been executed for good consideration. The learned Judge has not differed from that finding. He has further come to the conclusion that the consideration was for value inasmuch as it could not be disputed that Rs. 500 due to the usufructuary mortgagee had been paid up.

2. The learned advocate for the appellant contends that the expression valuable consideration' must mean consideration which is fully adequate. 'Valuable consideration' in Section 53, U.P. Insolvency Act, has been explained in Stroud's Judicial Dictionary as meaning money or money's worth and 'valuable' as meaning real as distinguished from a consideration that is merely illusory or nominal; but not necessarily meaning equivalent. The consideration would be valuable if it is not so small as to be negligible when the value of the property is to be taken into account. Of course an inadequate consideration may be evidence of want of good faith which may itself be sufficient for the setting aside of the transfer.

3. In this particular case the learned Judge has found that there was no want of good faith. The property in question was the ultimate right of the insolvent or his successor to succeed to the estate after the death of certain ladies who had under a decree of Court obtained possession for life in lieu of their maintenance. In this case no objection was taken that no second appeal lay to the High Court. This question therefore has neither been considered nor decided. We think that the order of the Court below was right.

4.The appeal is dismissed with costs


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