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M.R.P.R.S. Muthia Chettiar Vs. Lakshminarasa Aiyar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1921Mad62; 61Ind.Cas.756
AppellantM.R.P.R.S. Muthia Chettiar
RespondentLakshminarasa Aiyar
Excerpt:
provincial insolvency act (iii of 1908), sections 4, 6 - creditor, petition by, for adjudication of his debtor--release executed by debtor--release anterior to debt--petition, whether competent. - - 2. then, so far as the intention of the parties is concerned, it will be safe to infer that they intended the document to take effect from the 13th march, which is the date put down for the schedule portion also......executed a deed of release in favour of his father, by which he released his rights in the family property for a consideration of rs. 3,000. the main bedy of the deed was written on the 13th march. afterwards, on the 6th april, schedule of the family properly was attached. that also was executed by the respondent and attested by witnesses. the date put down to the schedule is 13th march. the document was registered on the 8th april. the promissory-note in favour of the petitions' creditor was executed on the 23rd march. the question, therefore, is whether, on the dace of the release, the petitioner was a creditor, so as to entitle him to present an application for adjudication of the respondent. the act of insolvency was the transfer of the respondent's property. section 4(6).....
Judgment:

1. The question in this appeal is whether the respondent, a young man about 20 years, committed an act of insolvency, so as to entitle the petitioner to have him adjudicated insolvent, under the Provincial Insolvency Act. The respondent executed a deed of release in favour of his father, by which he released his rights in the family property for a consideration of Rs. 3,000. The main bedy of the deed was written on the 13th March. Afterwards, on the 6th April, schedule of the family properly was attached. That also was executed by the respondent and attested by witnesses. The date put down to the schedule is 13th March. The document was registered on the 8th April. The promissory-note in favour of the petitions' creditor was executed on the 23rd March. The question, therefore, is whether, on the dace of the release, the petitioner was a creditor, so as to entitle him to present an application for adjudication of the respondent. The act of insolvency was the transfer of the respondent's property. Section 4(6) says that, a debtor commits an act of insolvency, if, in Bench India or elsewhere, he makes a transfer of his property or of any part thereof with intent to defeat or delay his creditors.' Section 6, Sub-section 4(c), lays down that a creditor shall not be entitled to present an insolvency petition against a debtor unless the act of insolvency on which the petition is grounded has occurred within three months before the presentation if the petition.' Therefore, the whole question was, whether this transfer took place on the 13th, when the main bedy of it was written, or the 6th April, when the schedule was added. The point is bare of authority. We have come to the conclusions having regard to the nature of the document, that the transfer was completed on the 13th March. The law does not require that a deed of release with respect to a co-parcener's share in a joint Hindu family property must specify all the family properties with respect to which the release operates. It may be as suggested, that the rules of the Registration Department require that even in such case, the properties are to be specified. Even if it be so, that will not make any difference on the question when the transfer was completed. The stamp duty-payable on the document of release is Rs. 5, independently of the value of the property, provided the value of the claim is over Rs. 1,000 as in this case.

2. Then, so far as the intention of the parties is concerned, it will be safe to infer that they intended the document to take effect from the 13th March, which is the date put down for the schedule portion also.

3. Upon these facts we agree with the conclusion of the learned District Judge, that the petitioner was not competent to present his petition for adjudication.


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