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citation codes
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  • Sections 35 and 37 of the Provincial Insolvency Act.
  • Section 28(2) of the Provincial Insolvency Act.
  • SECTION 43 TRANSFER OF PROPERTY ACT
  • provisions of the Debt Conciliation Act.19.
  • this.16. Section 12 Debt. Conciliation Act,
  • Section 21 of the Debt. Conciliation Act,
  • TRANSFER OF PROPERTY ACT
  • S. 13(1). Section 130(1)
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
Acts
  • Sections 35 and 37 of the Provincial Insolvency Act.
  • Section 28(2) of the Provincial Insolvency Act.
  • SECTION 43 TRANSFER OF PROPERTY ACT
  • provisions of the Debt Conciliation Act.19.
  • this.16. Section 12 Debt. Conciliation Act,
  • Section 21 of the Debt. Conciliation Act,
  • TRANSFER OF PROPERTY ACT
  • S. 13(1). Section 130(1)
Smart Summary

Judgment Summary — Suit for Possession of Survey No. 265, Dongaon

Factual and Procedural Background

This appeal was instituted by defendants 1 and 2 in a suit for possession of a field (Survey No. 265 of Dongaon). The lower appellate court had found that the field belonged to Sitaram Balkrishna, who was the father of defendants 1 and 2; the defendants claim as his heirs. The plaintiffs claim title through Anusuya, Sitaram's daughter-in-law.

Sitaram was adjudicated an insolvent on 6-3-1934 pursuant to a creditors' petition filed in May 1931 (adjudication order Ex. D-5). An application to the Debt Conciliation Board was made in 1934 (Revenue Case No. 1251 of 1934) and the Board effected a conciliation agreement on 22-7-1935 (Ex. P-8). The Board's agreement reduced certain debts (including one mortgage debt to Anusuya dated 13-6-1931) to a settlement of Rs. 1,600 payable in instalments.

Despite the settlement before the Board, Sitaram executed a sale-deed in favour of Anusuya on 29-7-1935 (Ex. P-15). The Insolvency Court subsequently annulled the adjudication on 2-8-1935 (Ex. P-19) on the ground that "The claim of the applicant is settled by the Debt Conciliation Board. The order of adjudication passed in favour of the insolvent is hereby annulled as all claims are settled."

On 30-8-1941 Anusuya sold the field to plaintiff 1. Defendants 1 and 2 (Sitaram's sons) contend that Anusuya obtained no valid title by Ex. P-15 and so could not pass valid title to plaintiff 1. The appeal challenges the decree of the lower appellate court; the judgment concludes by allowing the appeal, setting aside the lower appellate court's decree and restoring the decree of the first Court, with costs to be paid by the plaintiffs-respondents.

Legal Issues Presented

  1. Whether a sale executed by a person adjudicated insolvent, during the period of insolvency, can convey title (specifically whether the sale-deed Ex. P-15 executed on 29-7-1935 by Sitaram, while adjudicated insolvent, was effective).
  2. What is the effect of Section 21 of the Debt Conciliation Act (suspension of civil proceedings) on the jurisdiction and consequences of prior insolvency adjudication — specifically whether Section 21 ousts the Insolvency Court's jurisdiction or re-vests property in the insolvent.
  3. Whether an agreement recorded under Section 12 of the Debt Conciliation Act can embody or effect a transfer of immovable property so as to be enforceable as a decree.
  4. What is the legal effect of an annulment of an adjudication under the Insolvency Act — whether annulment revives and validates transfers made by the insolvent during the period of insolvency.
  5. Whether Section 43 of the Transfer of Property Act (equitable estoppel / protection of transferees in certain circumstances) is attracted in this case and can validate the transferred title.

Arguments of the Parties

Defendants' (Appellants') Arguments

  • The sale-deed Ex. P-15 (29-7-1935) executed by Sitaram while he was an adjudicated insolvent is wholly void; Sitaram had no authority to sell his property during insolvency, and consequently Anusuya obtained no title and could not pass title to plaintiff 1.
  • Defendants generally asserted that Anusuya's title was defective for a number of grounds (the judgment explicitly sets out the first ground above as the central contention).

Plaintiffs' (Respondents') Arguments

  • The plaintiffs contended that the sale-deed Ex. P-15 was not void because Section 21 of the Debt Conciliation Act "ousts the jurisdiction of the insolvency Court" by suspending proceedings and thus the Board's actions validated or restored Sitaram's capacity to execute the sale.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Shriahar v. Ganesh, 1938 N.L.J. 133 at p.136 Authority discussing which tribunal (Insolvency Court or Debt Conciliation Board) obtains precedence when proceedings on same debt are pending before both. The court stated it need not decide the precedence question along the lines of this case because suspension under S.21 does not re-vest property in the insolvent.
Chhotetal v. Nathuram, I.L.R. (1938) Nag. 165 : A.I.R. (24) 1937 Nag. 288 Similar to Shriahar v. Ganesh — precedence of tribunals when same matters pending. Used to frame the issue but the court declined to decide the precedence question because suspension alone cannot re-vest property.
Raghunath Das v. Sundar Das, 42 Cal. 72 at p.80 : A.I.R. (1) 1914 P.C. 129 Authority that after adjudication the judgment-debtor had no right, title or interest to sell and purchaser acquired no title. Relied upon to support the proposition that adjudication divests the insolvent of all right, title and interest and that a purchaser from the insolvent acquires no title.
Kala Chand v. Jagannath, 54 Cal. 595 : A.I.R. (14) 1927 P.C. 108 Similar proposition that sale by an insolvent does not pass title where insolvent has been divested by adjudication. Applied to reinforce the conclusion that the insolvent could not convey title during insolvency.
Chunmlal (Chunnilal) v. Vithal, 28 N.L.R. 317 at p.319 : A.I.R. (20) 1933 Nag. 28 Decision interpreting effect of adjudication on insolvent's power to transfer property. Cited as consistent authority for the view that property vests away from the insolvent on adjudication and sale by him conveys no title.
Kashinathappa v. Ramji, I.L.R. (1949) Nag. 625 at p.629 Holds that a sale under certain circumstances is voluntary, especially when the creditor is a secured creditor. Used to characterise Ex. P-15 as a purely private, voluntary transaction even though it had the Board's blessing.
Ramasami Kottadiar v. Murugesa Mudaliar, 20 Mad. 452 : 7 M.L.J. 229 Authority suggesting that transfers by an insolvent after adjudication may be held in abeyance and could become operative after re-vesting (ratio in earlier Act). The court noted this ratio but observed it could be distinguished on the basis of differing statutory language; the court preferred a wider view and did not adopt this as controlling here.
Kothaddaram Ravuth v. Murugesa Mudaliar, 27 Mad. 7 Similar early Madras decisions concerning effect of transfers made by insolvent during adjudication. Cited as part of the body of decisions the court examined but not followed as dispositive under the present Act.
Lingappa v. Official Receiver, Bellary, A.I.R. (24) 1937 Mad. 717 : 176 I.C. 600 Authority relevant to the effect of insolvency adjudication on transfers made by the insolvent. Noted as part of the prior decisions; court referenced it but preferred a broader approach under the present Act rather than treating post-adjudication transfers as simply in abeyance.
Jethaji Peraji Firm v. Krishnayya, 52 Mad. 648 at p.668 : A.I.R. (17) 1930 Mad. 278 Statement (quoted) that one cannot “put the clock back as if the adjudication had never been made.” Quoted and relied upon in support of the view that annulment does not validate acts done during the period of insolvency.
Lakshmanan Chettiar v. Srinivasa Iyengar, I.L.R. (1937) Mad. 203 at p.209 : A.I.R. (24) 1937 Mad. 131 Case in which Jethaji Peraji quotation was used; related to effect of annulment. Quoted to support the proposition that annulment restores title but does not erase the consequences of the intervening insolvency period.
Diwan Chand v. Manak Chand, 16 Lah. 392 : A.I.R. (21) 1934 Lah. 809 Decision supporting the line of reasoning that a transferee from a person without title who later obtains title has certain options under Section 43 reasoning. Cited in relation to examining the position under Section 43 of the Transfer of Property Act; court discussed the line of reasoning but ultimately excluded S.43 on procedural grounds.
Rup Narayan Singh v. Har Gopal Tewari, 55 ALL. 503 : A.I.R. (20) 1933 ALL. 449 Case touching on the effects of transfers by persons who later obtain title; cited in reasoning on S.43 implications. Noted as supportive of a particular line of reasoning about transferees' options, but the court did not base its decision on this ground.
Chandulal v. Raghunathdas, 1942 N.L.J. 82 at p.86 Authority cited for the proposition that Section 43 of the Transfer of Property Act is a species of estoppel and that knowledge and belief are material to its application. Used to explain that S.43 requires pleading and proof of good faith and being misled; court excluded S.43 in this appeal because it was not pleaded or tried below.
Dharmasamarajayya v. Sankamma, A.I.R. (30) 1913 Mad. 453 : 213 I.C. 110 Case where the alienation was before adjudication and later revived by annulment (distinguishable). Cited as distinguishable from the present facts; court explained why it did not support the plaintiffs' position.
Suleman v. Laxman, A.I.R. (25) 1938 Nag. 312 : I.L.R. (1940) Nag. 204 Another case the court considered distinguishable on similar grounds. Noted and distinguished; did not change the court's conclusion.

Court's Reasoning and Analysis

The court's analysis proceeded in several linked steps, applying statutory provisions and authorities to the facts before it:

  1. On the facts the court accepted the lower appellate court's finding that the field belonged to Sitaram and that the defendants claim as his heirs. It accepted that Sitaram was adjudicated insolvent on 6-3-1934 and that an application to the Debt Conciliation Board was made at some time in 1934 (Revenue Case No. 1251 of 1934). The Board recorded a conciliation agreement on 22-7-1935 (Ex. P-8).
  2. The court examined the Board agreement (Ex. P-8) and concluded that it only referred to the mortgage dated 13-6-1931 to Anusuya (settled for Rs. 1,600) and made no provision for sale or alienation of Sitaram's immovable property. The agreement contained no indication as to how instalments were to be paid (cash or in kind) and nothing about sale of property.
  3. The sale-deed Ex. P-15 of 29-7-1935 (one week after the Board agreement) recited consideration of Rs. 3,000 said to be “deducted from the dues payable to you by order of the Board.” The court found that the Board's agreement did not in fact include, or settle for, Rs. 3,000 to Anusuya and that the other mortgage (22-5-1931) was not in the agreement. The original agreement was partially torn but, on examination, the court was satisfied nothing material relevant to Anusuya's case was missing.
  4. Concerning the legal effect of Section 21 of the Debt Conciliation Act (which suspends civil proceedings in respect of debts for which an application has been made), the court held that suspension does not amount to abrogation of insolvency proceedings nor to re-vesting of the insolvent's property in the insolvent. Once adjudication occurs, the insolvent is divested of his property and can be re-vested only by an order of annulment of the Insolvency Court (Sections 35 and 37 of the Provincial Insolvency Act were referenced).
  5. The court analysed Section 12 of the Debt Conciliation Act which requires that a settlement be reduced to writing in a form recording immovable properties, particulars of mortgages/charges and the manner and times of payment, and that such an agreement be signed and authenticated by the Board and the parties. Sub-section (2) (as quoted) makes an agreement so signed take effect as if it were a decree of a civil court. The court concluded that only an agreement signed by the parties (the one having the force of a decree) can attract the Act's enforcement provisions, and that Ex. P-8 (the signed agreement) did not provide for alienation of property; consequently Ex. P-15 was an independent private transaction and not a transfer under the Act.
  6. The court noted Circular No. 1 of the Provincial Government explaining that a Board cannot embody a proposed transfer of immovable property in an S.12 agreement in a manner that would be enforceable (because enforcement mechanisms would be inoperative), while recognising that the Board could persuade parties to execute private transfers which would lie outside the Act's enforcement provisions. On the facts (Exs. P-8 and P-15) the Board had effectively followed those lines: the sale was a private transaction blessed by the Board but not incorporated into the S.12 agreement.
  7. The court therefore characterised Ex. P-15 as a voluntary private sale not covered by the Debt Conciliation Act (citing Kashinathappa v. Ramji to show such sales are voluntary where creditor is secured).
  8. The court reiterated that adjudication divests the insolvent of all right, title and interest (citing Raghunath Das v. Sundar Das and Kala Chand v. Jagannath), and that suspension under S.21 does not re-vest property nor permit the insolvent to validly convey title while adjudicated. Consequently Ex. P-15 conveyed no title.
  9. The court addressed, but refused to permit in this second appeal, a contention based on Section 43 of the Transfer of Property Act: it was neither pleaded nor raised in the first Court, and depended on facts not pleaded or tried; accordingly the court would not allow Section 43 to be raised at this stage.
  10. On the broader question of annulment's effect, the court considered authorities that might suggest post-adjudication transfers are merely in abeyance and become operative upon annulment. While acknowledging earlier decisions to that effect, the court preferred a wider view under the present Act: annulment revives the insolvent's original title but does not erase the legal consequences of the intervening period of insolvency nor validate transfers made by the insolvent during the period of incompetency. The court analogised the insolvent during adjudication to a person under a continuing disability (e.g., a lunatic or a minor) whose acts in the period may not be validated simply by restoring capacity later.
  11. Applying these conclusions, the court found plaintiffs lacked title: Ex. P-15, executed by a person divested by adjudication, conveyed no title; annulment did not operate to validate that alienation, and Section 43 could not be invoked in this appeal.

Holding and Implications

APPEAL ALLOWED.

The court's core rulings were:

  • The sale-deed Ex. P-15 (29-7-1935) executed by Sitaram while adjudicated insolvent conveyed no title.
  • Section 21 of the Debt Conciliation Act (suspension of proceedings) does not amount to re-vesting the insolvent's property in him nor does it abrogate the insolvency adjudication; suspension relates only to debts for which application has been made.
  • An agreement under Section 12 of the Debt Conciliation Act must be signed by the parties to have the force of a decree; the Board cannot, by its seal alone, convert a private sale into a transfer enforceable under the Act.
  • An annulment of adjudication (under the Insolvency Act) restores the debtor's title but does not validate or wipe out the legal consequences of acts done by the insolvent during the period of insolvency; such acts are not thereby treated as if no disability had existed.
  • Section 43 of the Transfer of Property Act was not allowed to be raised in this second appeal because it had not been pleaded or tried in the Courts below.

Direct consequences for the parties (as ordered by the court): the decree of the lower appellate court is set aside, the decree of the first Court is restored, and costs here and in the lower appellate Court are to be paid by the plaintiffs-respondents.

The court's analysis applies established authorities to the facts; the judgment resolves the dispute between the parties on those facts and the statutory provisions cited. The court declined to permit the invocation of Section 43 in this appeal for procedural reasons.

    Kisan Sitaram Ambekar v. Sitaram Tulsiram

    JUDGMENT

    1. This is an appeal by defendants 1 and 2 in a suit for possession of a certain field, Survey No. 265 of Dongaon.

    2. It is now accepted, because of the finding of the lower appellate Court, that this field belonged to Sitaram Balkrishna, the father of defendants 1 and 2. The defendants claim as Sitaram's heirs. The plaintiffs claim through Sitiyram's daughter-in-law Anusuya the following geneological tree will be of assistance.

    3. Sitaram was adjudicated an insolvent on 6-3-1934 in pursuance of a creditors' petition filed in May 1931. The adjudication order is Ex. D-5.

    4. According to the defendants, Sitaram applied to the Debt. Conciliation Board some time after the order of adjudication. That is not accepted by the plaintiffs, and so far as the record goes, all we know is that the application was made in 1934 because the case is numbered Revenue case No. 1251 of 1934. But that does not help us to determine whether the application was before or after 6-3-1934. However, this much is certain. It was made after the petition in the Insolvency Court, as the petition there was filed in May 1931.

    5. The Debt. Conciliation Board effected a conciliation and an agreement was reached before the Board on 22-7-1935. The agreement is Ex. P-8. All it says is:

    “…and it has been settled that the total amount of debts due to the ??? as shown in column 4 of Part I of the schedule overleaf, should be conciliated for the amounts shown in column 5 thereof and it is agreed that the amounts settled shall be paid in instalments as shown in column 8.…”

    6. It is to be noted that there is nothing in the agreement to indicate how the instalments are to be paid, namely whether in cash or in kind, and there is nothing there about sale of the debtor's property.

    7. Among the debts. settled was one due to Mt. Anusuya (Sitaram's daughter-in-law) on a mortgage dated 13-6-1931. It was settled for Rs. 1600 payable in 40 instalments of Rs. 40 a year. But despite this settlement Sitaram executed a sale-deed of survey no. 265 in favour of Anusuya a week later, namely on 29-7-1935 (Ex. P-15). The recital regarding the considertion is as follows:

    “In order to settle your previous debts due on two mortgage deeds dated 22-5-1931 and 13-6-1931 I had applied to the Dobt. ??? Board, Mehkar, in Revenue Case No. 1251 of 1964. I have received the full amount of consideration of Rs. 3000, in coins of this sale deed, as the same is deducted from the dues payable to you by order of the Board.”

    8. Now it will be observed that the agreement before the Debt. Conciliation Board included only one debt due to Anusuya on a mortgage of 13-6-1931 and that was settled for Rs. 1600. The other mortgage of 22-5-1931 was not included in the proceedings before the Board, and in any case the debt. of Anusuya, whatever it was, was settled for Rs. 1600 and not for Rs. 6000. In spite of this, however the Debt. Conciliation Board placed its seal on Ex. p. 15 and, apparently, authorised the sale.

    9. The original agreement is torn, but I have pieced the portions together and am satisfied that nothing is missing regarding Anusuya. The agreement is confined to the mortgage of 13-6-1931 and does not refer to the one of 22-5-1931, and the sum settled was Rs. 1600 and not Rs. 3000. I am satisfied from the original that there could not have been any reference to the other mortgage in the torn portion of the deed.

    10. As a consequence of this sale the Insolvency Court annulled the adjudication on 2-8-1935 (Ex. P-19) in the following terms:

    “The claim of the applicant is settled by the Debt. Conciliation Board. The order of adjudication passed in favour of the insolvent is hereby annulled as all claims are settled.”

    11. Some years later, namely on 30-8-1941, Mt. Anusuya sold the field to plaintiff 1. We are concerned here with his title as based on Anusuya's.

    12. Defendants 1 and 2 are sons of Sitaram. They claim as Sitaram's heirs. Their contention is that Anusuya got no title and so was incompetent to pass on any to plaintiff 1. This is based on a number of grounds. The first is this.

    13. It will be seen that the sale-deed Ex. P-15 was executed on 29-7-1935 while Sitaram was still an insolvent. It is contended that this made the sale wholly void. The plaintiffs on the other hand argued that the deed is not void because Section 21 of the Debt. Conciliation Act, ousts the jurisdiction of the insolvency Court. The section runs:

    “… any Suit or other proceeding then pending before a civil Court in respect of any debt. for the settlement of which application has been made shall be suspended until the Board has disposed of the application.”

    14. I need not, however, decide in this case, along the lines of Shriahar v. Ganesh, 1938 N.L.J 133 at p. 136 and Chhotetal v. Nathuram, I.L.R (1938) Nag. 165 : (A.I.R (24) 1937 Nag. 288), which of the two tribunals, namely, the Insolvency Court or the Debt Conciliation Board, obtains precedence when proceedings relating to the same debt and he same debtor are pending before both because, even if it be assumed that the Debt. Conciliation Board obtains precedence that does not abrogate the proceedings in the Insolvency Court. It merely “suspends” them. That does not have the effect of re-vesting the insolvent's property in the insolvent. The moment there is an adjudication all the insolvent's property vests in the Court or the receiver. The insolvent is completely divested until annulment, and an annulment can only be by order of the Insolvency Court see Sections 35 and 37 of the Provincial Insolvency Act. If the proceedings are “suspended” so also is the possibility of re-vesting. Therefore whatever the position may be vis-a-vis the two Courts the insolvent has no power to deal with the property qua insolvent.

    15. We have next to examine the powers of the Debt. Conciliation Board. One thing is clear from S. 21, and that is that the suspension only operates “in respect of any debt. for the settlement of which application has been made”. There is nothing on record to show that the application to the Board included the debt. due on the mortgage of 22-5-1931, and reference to the agreement Ex. P-8 would appear to indicate that it was not included. Therefore the insolvency proceedings were not suspended so far as that is concerned. However that is not of much consequence because the ground on which I proceed is wider than this.

    16. Section 12 Debt. Conciliation Act, requires that when a settlement is made

    “such settlement shall forthwith be reduced to writing in the form of an agreement recording a list of immovable properties of the debtor with particulars of any mortgage, lien or charge subsisting thereon, the amounts payable to such creditors and the manner in which and the times at which they are to be paid. Such agreement shall be read out and explained to the parties concerned and shall be signed or otherwise authenticated by the Board and the parties.”

    17. When this is done sub-s. (2) ??? that

    “An agreement thus made shall… be registered … and it shall then take effect as if it were a decree of a civil Court.”

    18. It will be seen from this that the only agreement which has the force of a decree is the one signed by the parties. In the present case the only agreement signed by the parties is Ex. P. 8 and that agreement, dots not provide for the alienation of any of the debtor's property. Therefore lit sale-deed Ex. P-15 is not in pursuance of the agreement. It is an independent transaction, and even though it bears the seal of the Board it does not attract any of the provisions of the Debt Conciliation Act.

    19. The next question is whether a Board can embody a transfer of property in an agreement under S. 12. It was argued that it can because the section requires that the manner of payment should be set out.

    20. I need not decide this question because the agreement here does not set out any such transfer or proposed transfer. But I draw attention in passing to Para 6 of Circular No. 1 issued by the Provincial Government among the notes and explanations to the Act.

    “6.(1) A Board cannot embody a proposed transfer of immovable property in an agreement under S. 12 since, in the event of default (i.e if the debtor ???) payment cannot be enforced under S. 13(1). Section 130(1) also would be inoperative. But there is nothing to prevent the Board persuading the parties to make such a settlement and getting them to execute the transfer and register it. Such settlement would, however, but be under the Debt Conciliation Act….

    It is therefore necessary when there is more than one creditor that all of them should agree to the arrangement.

    (2) It is not a part of the business of a Board to settle debts by setting off property to creditors who agree to accept it in satisfaction of their claims…. There is, however, nothing to prevent a debtor from paying the agreed amount after reduction by the transfer or lease of some of his land or in any other way he may like to do with the concurrence of the creditor, subject to the provisions of S. 17 of the Act. There is also no objection to the good offices of the Board being available to the parties for carrying out any private agreement that might be arrived at.”

    21. As I have said, I need not decide upon the power of the Board to incorporate such a transfer or proposed transfer in the agreement and to compel compliance under the Act because the agreement here does not in fact do this. What is evident from Exs. P-8 and P-15 is that the Board in this case did exactly what these instructions directed. It hardly matters whether the Board knew of these instructions or not (one is dated 2-3-1935 and the other 10-11-1935, so the Board could not have known about the latter) because with or without knowledge the Board followed exactly those lines. The sale Ex. P-15 is therefore a purely private transaction and is not covered by the Act even though it had the blessing of the Board. In any event a Division Bench of this Court holds that such a sale is voluntary, especially when the creditor, as here, is a secured creditor: Kashinathappa v. Ramji, I.L.R (1949) Nag. 625 at p. 629.

    22. I have already pointed out that even if Section 21 of the Debt. Conciliation Act, can operate upon the insolvency proceedings it cannot do more than “suspend” them. It cannot abrogate them, nor can it restore the status quo. Therefore once the insolvent is divested of his property by the insolvency proceedings S. 21 does not have the effect of re-vesting it in him; all it does is to “suspend” the possibility of re vestment. It follows from this that the insolvent had no authority or power to sell and so Ex. P-15 conveyed no title. See as to this Raghunath Das v. Sundar Das, 42 Cal. 72 at p. 80; (A.I.R (1) 1914 P.C 129), Kala Chand v. Jagannath, 54 Cal. 595 : (A.I.R (14) 1927 P.C 108) and Chunmlal v. Vithal, 28 N.L.R 317 at p. 319 : (A.I.R (20) 1933 Nag. 28).

    23. The next question is whether Section 43 of the Transfer of Property Act is attracted. This was not pleaded nor was it raised in the first Court, so I am not prepared to allow it to be raised here in second appeal as it depends upon a number of facts which have neither been pleaded nor tried.

    24. It has been settled by numerous decisions, which are collected by Sir Dinshah Mulla at pp. 209 and 210 of Edn. 3 of his Transfer of Property Act and by B.B Mitra at p. 184 of the 9th Edn. of his book on the Act and is also suggested in Chandulal v. Raghunathdas, 1942 N.L.J 82 at p. 86, that S. 43 is a species of estoppel and so cannot be availed of by a person who knows the facts and was not misled, and, according to some of those decisions, it is necessary for the person wanting to take advantage of this section to plead and prove that he took the transfer in good faith believing in and being misled by the erroneous representations made by the transferor. I need not go as far as that, but it is evident that the questions of knowledge and belief are material and so the other side must be given a chance of raising these defences if and when S. 43 is pleaded. It is very unlikely that Mt. Anusuya did not know of the insolvency proceedings at the date of her purchase because she was Sitaram's daughter-in-law and it was the two mortgages to her which occasioned the insolvency.

    25. The next question is: What is the effect of an order of annulment? Does it have the effect of reviving acts performed by the insolvent during the period of incompetency? It was urged that a transfer by an insolvent after adjudication is not void. It merely holds the title in abeyance and the transfer becomes operative the moment the incompetency is removed.

    26. Such a conclusion is justified on the ratio decidendi of Ramasami Kottadiar v. Murugesa Mudali, 20 Mad. 452 : (7 M.L.J 229) and Kothaddaram Ravuth v. Murugesa Mudaliar, 27 Mad. 7 though it is possible to distinguish these cases on the ground that they were construing an earlier Insolvency Act which had the words “null and void” in the section corresponding to the present S. 37. It is also the ratio decidendi of Lingappa v. Official Receiver Bellary, A.I.R (24) 1937 Mad. 717 : (176 I.C 600). But with all respect I prefer to found wider and to hold that under the present Act one cannot “put the clock back as if the adjudication had never been made” to use the words of Reilly, J. in Jethaji Peraji Firm v. Krishnayya, 52 Mad. 648 at p. 668 : (A.I.R (17) 1930 Mad. 278) quoted by Venkataramana Rao, J. in Lakshmanan Chettiar v. Srinivasa Iyengar, I.L.R (1937) Mad. 203 at p. 209 : (A.I.R (24) 1937 Mad. 131). It is true that the property reverts to the debtor under S. 37 but that does not wipe out all the effects of the insolvency. The debtor gets his original title back and it is possible that one can place him as far as may be in the same position as he was on the date of the adjudication, but that does not mean that acts done by the insolvent while under an incompetency can be validated or can be regarded as if there had never been a disability. In this respect the insolvent can, I think, be regarded in the same light as a lunatic who has intervals of sanity, or as a minor.

    27. It is, I think, beyond doubt that an order of adjudication denudes the insolvent of all right, title and interest to and in the property. In my opinion this continues during the whole period of the insolvency. It is as if the law had effected a transfer of title from the insolvent to the receiver. I think that follows from Section 28(2) of the Provincial Insolvency Act. In any case that is how I interpret the decisions of the Privy Council in Raghunath Das v. Sundar Das Khetri, 42 Cal. 72 at pp. 80, 82 and 83 : (A.I.R (1) 1914 P.C 129) and Kala Chand v. Jagannath, 54 Cal. 595 at p. 597 : (A.I.R (14) 1927 P.C 108. And that is how I interpreted these decisions in Chunnilal v. Vithal, 28 N.L.R 317 at p. 319 : (A.I.R (20) 1933 Nag. 28). In the first of these cases their Lordships said

    “the judgment-debtors had at the time of the sale no right, title, or interest which could be sold or vested in a purchaser, and consequently the respondents acquired no title to the property.”

    28. This was their Lordships' view with respect to an auction sale under an order of a Court. How much more must it be the case when there is a purely private sale.

    29. If that is the effect of an order of adjudication, namely to divest the insolvent of all “right, title and interest” and transfer it to another (the receiver), then the re-vesting under S. 37 only transfers the title back again. That, in my opinion, stands on the same footing as the case of a man who transfers his title in property to another, say, by a sale with a right to repurchase, and then purchases it again. If in the interval he were to sell to a third party that would not have the effect of conferring a good title. The purchaser would get just nothing. It is true he might, in given circumstances, get a right to have the estoppel fed under Section 43 of the Transfer of Property Act, but that is another matter. That is the line of reasoning adopted in Diwan Chand v. Manak Chand, 16 Lah. 392 : (A.I.R (21) 1934 Lah. 809) and is the ground on which Rup Narayan Singh v. Har Gopal Tewari, 55 ALL. 503 : (A.I.R (20) 1933 ALL. 449) could be sup-ported though the learned Judges do not proceed on that basis.

    30. But examining the position under S. 43 a little closer, it is evident from that when a man without title purports to sell to another and subsequently gets title to the property sold, that in itself does not pass any estate. The transferee is left with an option and he can, if he so chooses, decline to accept the property. I can see no reason why a man who buy from an insolvent should be placed in a worse position and be deprived of this option. But that is what would happen if the argument which I am now examining is sound. I hold therefore that an order of annulment does not have the effect of validating an alienation made by the insolvent during the pendency of the insolvency, and as I have excluded Section 43 of the Transfer of Property Act, in this Case for the reasons given above it follows that the plaintiffs have no title and so cannot maintain this suit.

    31. The following cases were also cited, but they are, I think, distinguishable. In Dharmasamarajayya v. Sankamma, A.I.R (30) 1913 Mad. 453 : (213 I.C 110) the alienation was before the adjudication. It was set aside by the Insolvency Court but the property covered was not disposed of by the receiver. It was held that the order of annulment revived the alienation. That is understandable if the insolvent is restored to the position he occupied on the date of the adjudication but the case does not decide whether the insolvent can deal with his property while under a disability. Suleman v. Laxman, A.I.R (25) 1938 Nag. 312 : (I.L.R (1940) Nag. 204) is distinguishable along the same lines. The appeal is allowed. The decree of the lower appellate Court is set aside and that of the first Court restored. Costs here and in the lower appellate Court will be paid by the plaintiffs-respondents.

    32. Appeal allowed.

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    Kisan Sitaram Ambekar v. Sitaram Tulsiram
    (Feb 24, 1950)