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Bhut Nath Chatterjee Vs. Biraj Mohini Debi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in49Ind.Cas.87
AppellantBhut Nath Chatterjee
RespondentBiraj Mohini Debi
Excerpt:
provincial insolvency act (iii of 1907), section 36 - transfer in favour of wife by insolvent, validity of--discretion of court to cancel transfer. - .....comprised in that transfer is liable to be distributed amongst the general body of creditors. the learned judge of the court below thought that he had a discretion as to whether this property should be distributed amongst the creditors and came to the conclusion that in this case the property ought not to be so distributed. the judge has given no reasons for coming to that conclusion. there is a clear provision of the law, i think, that the transfer is void as against the official receiver and there is no, reason why this ought not to be given effect to. the word relied on by the learned judge is that the court may -annul the transfer. the transfer being void as against the official receiver, the official receiver is. entitled to cause the property to be transferred to him. the present.....
Judgment:

Fletcher, J.

1. This is an appeal by an opposing creditor against the decision of the learned District Judge of Hooghly, dated the 26th May 1917. The respondent to the appeal is the wife of the insolvent. What is found is this--and it cannot be challenged--that the insolvent within two years prior to his insolvency made a transfer of a portion of his property, not being a transfer made before and in consideration of marriage or made in favour of a purchaser or' incumbrancer in good faith and for valuable consideration, to his wife. That transfer is ipso facto void as against the Official Receiver and the property comprised in that transfer is liable to be distributed amongst the general body of creditors. The learned Judge of the Court below thought that he had a discretion as to whether this property should be distributed amongst the creditors and came to the conclusion that in this case the property ought not to be so distributed. The Judge has given no reasons for coming to that conclusion. There is a clear provision of the law, I think, that the transfer is void as against the Official Receiver and there is no, reason why this ought not to be given effect to. The word relied on by the learned Judge is that the Court may -annul the transfer. The transfer being void as against the Official Receiver, the Official Receiver is. entitled to cause the property to be transferred to him. The present case is a perfectly clear case. The judgment of the learned District Judge must be set aside and the transfer declared void as against the Official Receiver. The present appeal is, therefore, allowed and, in lien of the judgment passed by the learned District Judge, it will be declared that the transfer in favour of the respondent by her husband, the insolvent, is void as against the Official Receiver. The appellant will get his costs both in this Court and in the Court below. We assess the hearing fee in this Court at two gold mohurs.

Shamsul Huda, J.

2. I agree.


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