1. The Subordinate Judge of Tuttcorin dismissed an application by the Official Receiver of Tinnevelly to set aside an alienation under Section 53 and 54 of the Provincial Insolvency Act. In appeal the District Judge of Tinnevelly reversed the decision of the Subordinate Judge and declared the alienation void as against the Official Receiver under both Sections 53 and 51 of the Act.
2. No Second Appeal lies in such a case (vide Alagirisubba Naik v. Official Receiver of Tinnevelly 132 Ind Cas 641 : 61 MLJ 820 : Ind. Rul. (1931) Mad. 673 : 31 LW 105 : AIR 1931 Mad. 745 : 54 M 989 and therefore the C.M.S.A. No. 60 of 1929 must be dismissed.
3. Criminal Revision Petition No. 591 of 1929 is said to be based upon the same grounds as C.M.S.A. No. 60 of 1929 though it is obvious that the considerations which arise in revision are not the same as those which arise in a second appeal. In revision under Section 75 of the Provincial Insolvency Act it is only necessary to ascertain whether the decision of the learned District Judge is in accordance with law. As to this it can be said at once that considered simply as a technical matter, the order of the learned District Judge is Btrictly according to law. The alienation attacked is a simple mortgage executed on June 29, 1923 by certain persons who were adjudicated insolvents on a creditor's petition presented on September 6, 1923, the mortgage was in favour' of three persons to whom the insolvents are heavily indebted. The learned District Judge has recorded findings that the mortgage was not fully supported by consideration, and that the alienees did not act in good faith when they took the transfer. He has also found that the insolvents in executing the mortgage acted with a view to prefer the mortgagees over their other creditors. On these findings the mortgage is voidable tinder both the sections, 53 and 51 of the Provincial Insolvency Act and the order of the learned District Judge is the only order which according to law he could pass.
4. Mr. S. Varadachariar for the petitioners, the morgagees, contends, however, that the finding of the learned District Judge is vitiated by serious mistakes of fact, by a wrong view as to onus of proof in a question under Section 54 and by a wrong view as to law governing an alienation made in favour of creditors when the alienation is accompanied by a fresh loan. He contends also that since the mortgage in question was executed by the insolvents in pursuance of an agreement entered into more than three months before the insevency petition was presented, the transaction cannot be avoided under Section 54.
5. I am not satisfied that the learned District Judge made any mistake of fact of so serious a nature as to vitiate his conclusions. The most serious mistake alleged is that the learned District Judge went on treating the partnership between the insolvent Venkatasami and his brother-in-law Ayyappa as if it were still subsisting in 1923 whereas in fact it had been dissolved in 1921. But as Mr. T.M. Krishnaswam Ayyar points out the evidence as to the dissolution of partnership is extremely vague and unsatisfactory. No deed of dissolution was produced, no accounts were so produced to show what liabilities each incurred and what assets each took over. On the other hand, it was proved that both together borrowed Rs, 10,000 Bfrom a banker in Madura in April 1923, and in January, 1923, Venkatasami and Ayyappa jointly borrowed Rs. 10,000 from the Imperial Bank at Tuticorin, each endorsing a pro-note for Rs. 5,000 executed by the other (Vide Exs. E and E-l). In the settlement of debts which took place after the execution of the mortgage in question it is alleged that Ayyappa took over Venkataswami's share in the debt due to the Madura Bank, while Venkatasami took over Ayyappa's share in the debts due to the Imperial Bank. The learned District Judge emphasised the fact that Ayyappa though available did not go into the witness box to explain these and other transactions nor did he produce his accounts. In these circumstances I cannot see that the learned District Judge made any serious error in omitting to refer to the alleged dissolution of partnership between Venkata-swami and Ayyappa. The whole matter is left extremely obscure. Other mistakes, attributed to the learned District Judge are of very minor importance.
6. The contention that the learned District Judge held a wrong view as to the onus of proof is based on para. 13 of the judgment where the learned District Judge observes as follows:
These facts combined with, the fact that the insolvents had practically no other tangible assets than the property hypothecated and that they [owed Rs. 37,000 in addition to the debts the discharge of which is provided for in the mortgage made .it incumbent on the mortgagees to satisfy the court that the mortgage was a bona fide transaction.
7. I do not think this indicates a wrong view as to onus. It only indicates that in the opinion of the learned District Judge the onus which lay initially on the Official Receives- had been shifted to the mortgagees.
8. It is contended, relying upon the case of Official Assignee of Madras v. T. B. Mehta & Sons 49 Ind Cas. 968 ; 42 M 510 : AIR 1919 Mad. 333 : 36 MLJ 190 : 25 MLT 265 : (1919) MWN 293 that since the alienation was made in order to secure not only past debts but also fresh loans made at the time of the alienation, the alienation cannot be avoided as a fraudulent preference. The decision relied upon: Official Assignee of Madras v. T. B. Mehta & Sons 49 Ind Cas. 968 ; 42 M 510 : AIR 1919 Mad. 333 : 36 MLJ 190 : 25 MLT 265 : (1919) MWN 293 does not lay down any such proposition. It was found in that case that there was no transfer of all or substantially all of the debtor'3 properties and that therfore was no view to prefer one creditor over others. In the present case the transfer was of practically the whole of the debtors' properties and the learned District Judge has found that there was a view to prefer the mortgagees over the other creditors.
9. Mr. Varadachariar reliescon Ex parte Hodgkin; In re Softely (1877) 10 Eq. 746 : 44 LJKB 107 : 24 WR 68 ; 33 LT 62 for hisiproposition that the mortgage having been executed in pursuance of a prior agreement cannot be avoided as a fraudulent preference. The prior agreement is the Yadast, Ex. J. said to have been executed on April 2, 1923. I cannot see any similarity between Ex. J and the undertaking referred to in the English case [quoted nor between the general circumstances of that case and this. In Ex. J the debtor did not offer anything definite as security. They merely made a vague promise to execute a mortgage but what they would offer as security they did not state. Moreover, the decision of Sir James Bacon, C.J., in the case quoted begins with these words:
This is a case which, as I conceive, must come under the 9?nd section of the Bankruptcy Act and not under the 2nd sub-section of the 6th section. I think the transaction in question cannot under any Circumstances, be treated as an act of bankruptcy. It was not a transfer of the whole of the debtor's estate, and no single fact has been stated, no argument has been addressed to me which would induce me to say that it was a fraudulent transfer of a part of the debtor's estate.
10. In the case I am now dealing with the transfer was an act of bankruptcy. It was a transfer of practically the whole of the debtors' estate and there are many facts which have induced the learned District Judge to say that it was a fraudulent transfer. Here is a case of simple mortgage executed by the insolvents in favour of a relative (respondent No. 3) and his two sons-in-law respondents Nos. 1 and 2. Except a quite negligible fraction tne wnole of the debtors' property is mortgaged for Rs. 46,500. Debts due to others to the extent of Es. 37,000 are left unprovided for. A loan of Rs 16,000 is made or purports to be made, to the insolvent Venkitaswami at a time when his business had actually come to a standstill. Terms for repayment, which the learned Subordinate Judge called 'egsy terms' but which were really quite impossible terms were arranged. There are ample materials to support the finding of the learned District Judge regarding the lack of consideration, want of good faith and a view to prefer. I find no ground for interfering with the findings of the learned District Judge in revision and dismiss this petition with costs.
11. The 1st respondent will recover also the costs of printing charges in C.M. S.A. No. 60 of 1929.