Johri Lal Soni vs Smt. Bhanwari Bai on 1 August, 1977 Equivalent citations: AIR1977SC2202, (1977)4SCC59, [1978]1SCR231, 1977(9)UJ542(SC), 1977()WLN375 Author: S. Murtaza Fazal Ali Bench: N.L. Untwalia, S. Murtaza Fazal Ali JUDGMENT S. Murtaza Fazal Ali, J. 1. To what extent is Section 4 of the Provincial Insolvency Act, 1920 controlled by Section 53 of the said Act in the of determination of the question of title of a property transfer the insolvent before he was declared insolvent is the serious of law which is involved in this appeal by certificate. The Pyarelal Gupta appears to have executed a deed of gift in his wife on November 7, 1961. About seven years later April 1, 1968 an application under Section 10 of the Provincial It Act hereinafter to be referred for short as '"the Act"-was for adjudging Pyarelal as an insolvent. On April 5, 1968 the appellant Zohri Lal Soni an Advocate was appointed receiver by the On October 15, 1960 Pyarelal was on his own application as an insolvent by the Additional District Judge, Jodhpur January 4, 1969 the appellant who was the receiver moved the under Section 4 of the Act for declaring the deed of gift dated November 1961 as void and inoperative inasmuch as it was a sham transfer On March 3, 1972 the Insolvency Court of the Additional Judge, Jodhpur, after making an inquiry, upheld the plea receiver/appellant and declared the deed of gift dated November 1961 as being void and inoperative. Thereafter the respondent Bhanwari Bai (donee) went up in appeal to the High Court the judgment of the Insolvency Court on the ground that legally erroneous. The plea of the respondent Bhanwari had to have found favour with the High Court of Rajasthan which the appeal and act aside the judgment of the Insolvency Court declaring the deed of gift as void by its judgment dated September 1973. The appellant thereafter applied for grant of cer fitness for leave to appeal to this Court which was granted High Court on October 27, 1975 and this is how the appeal brought to this Court. 2. The High Court was of the opinion that in view of the provision of Section 53 of the Act, the Insolvency Court had no j to determine the question of title, nor could it go into that of the validity of a transfer which was made more than the before the Insolvency proceedings had started. According to Court, while Section 4 of the Act undoubtedly conferred a po Insolvency Court to decide questions of title, but this person not be exercised in respect of transfers made during a pe two years of the insolvency proceedings. Johri Lal Soni vs Smt. Bhanwari Bai on 1 August, 1977  1 3. In (support of the appeal, learned Counsel for the appellant submitted that the High Court had taken an erroneous view of the law and had misconstrued the scope and ambit of Section 53 of the Act. Learned counsel for the respondent, however, supported the stand taken toy the High Court and submitted that as the gift was made about 61/2 years before the proceedings began, the Insolvency Court could not examine the question of title. A number of authorities have been cited by counsel for the parties in support of their respective submissions, but we think the question lies within a very narrow compass. It would appear that Section 4 of the Act was not there in the Insolvency Act of 1907, but was introduced for the first time by Act 5 of 1920. Before 1920, the Provincial Insolvency Act did not contain any such provision as a result of which there was a serious divergence- of judicial opinion on the question as to whether or not an Insolvency Court could determine a question of title regarding a transfer made by the insolvent. Act 5 of 1920, however, set at rest this controversy and gave wide powers to the Insolvency Court to determine questions of title. 4. We now proceed to interpret the provisions of s. 4 itself, the relevant part of which may be extracted thus: 4. (1) Subject to the provisions of this Act, the Court shall have full power to decide all questions whether of title or priority, or of any nature whatsoever and whether involving matters of law or of fact, which may arise in any case of insolvency coming within the cognizance of the Court, or which the Court may deem it expedient or necessary to decide for the purpose of doing complete justice or making a complete distribution of property in any such case. 5. It would be seen that the section has been couched in the widest possible terms and confers complete and full powers on the Insolvency Court to decide all questions of title or priority, or of any nature whatsoever, which may arise in any case of insolvency. The only restriction which is contained in Section 4 is that these powers are subject to the other provisions of the Act. In other words, the position is that where any other section of the Act contains a provision which either runs counter to Section 4 or expressly excludes the application of Section 4, to that extent Section 4 would become inapplicable. Counsel for the respondent strongly relied on the provisions of Section 53 which runs thus: 53. Any transfer of 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 shall, if the transferor is adjudged insolvent on a petition presented within two years after the date of the transfer, be voidable as against the receiver and may be annulled by the Court. 6. It was submitted that the effect of Section 53 of the Act clearly is that it bars the jurisdiction of the Insolvency Court to determine the validity of any transfer made beyond two years of the transferor] being adjudged insolvent. It is no doubt true that the words "within two years after the date of the transfer" being voidable as against the receiver does fix a time-limit within which the transfer could be annulled by the Johri Lal Soni vs Smt. Bhanwari Bai on 1 August, 1977  2 Court. But a plain construction of Section 53 would manifestly/indicate that the words "within two years after the date, be voidable as against the receiver and shall be annulled by the Court" clearly connote that only those transfers are excepted from the jurisdiction of the Court which are voidable. The section has, therefore, made a clear distinction between void and voidable transfers-a distinction which is well-known to law. A void transfer is no transfer at all and is completely destitute of any legal effect: it is a nullity and does not pass any title at all. For instance!, where a transfer is nominal, sham or fictitious, the title remains with the transferor and so does the possession and nothing passes to the transferee. It is manifest, therefore, that such a transfer is no transfer in the eye of the law. Such transfers, therefore, clearly fall beyond the purview of Section 53 of the Act which refers only to transfers which are voidable. It is well settled that a voidable transfer is otherwise a valid transaction and continues to be good until it is avoided by the party aggrieved. For instance, transfers executed by the transferor to delay or defraud his creditors may be avoided under Section 53 of the Transfer of Property Act. Similarly transfers made under coercion, fraud or undue influence may be avoided by the party defrauded. It is only such transfers which, if they take place beyond two years of the date of transfer, cannot be enquired into by the Court by virtue of Section 53 of the Act. This appears to us to be the plain and simple interpretation of the combined reading of Sections 4 and 53 of the Act. Indeed if a different interpretation is given, it will render the entire object of the section nugatory, because the Court would be powerless to set at naught transfers which are patently void, merely because they had been made at a particular point of time. 7. Reliance was placed by counsel for the appellant on a Full Bench decision of the Allahabad High Court in Haji Anwar Khan v. Mohamad Khan and Ors. where the following two questions were referred for the decision of the Full Bench: (1) Whether an insolvency Court can try a question of title raised on the basis of a transfer which took place more than two years prior to the adjudication, having regard to the provisions of Section 53, Insolvency Act ? (2) Would it make any difference if the receiver alleges that no transfer had been intended from the very beginning and no title had passed the transaction being a mere paper transaction and void ? 8. After discussing a large number of authorities, Dalai, J., answered the first question in the affirmative and held that an Insolvency Court could try a question of title raised on the basis of a transfer which took place two years prior to the adjudication, but the learned Judge, however, refrained from giving any opinion on the other question, which to our opinion was the most pertinent question to be answered having regard to the specific distinction made by Section 53 between void and voidable transactions. Sen, J., appears to have sounded a discordant note in observing as follows: Johri Lal Soni vs Smt. Bhanwari Bai on 1 August, 1977  3 My answer to the reference is (1) An insolvency Court cannot try a question of title relating to a transfer which has taken place more than two years before the order of adjudication having regard to the provisions of Section 53, Insolvency Act. (2) Where the transfer was intended not to be operative from the beginning and the insolvent had remained in possession of the property the receiver may apply for its annulment. But where the transfer was executed by a proper instrument and duly registered and was intended to put the property beyond the reach of the creditors and a third party is claiming under the transfer, such a transaction cannot be treated as a mere paper transaction. 9. We feel that the view of Sen. J., appears to be based on a correct interpretation of Sections 4 and 53 of the Act. King, J., agreed with Dalai, J. and observed as follows: I see no difficulty, therefore, in giving a meaning and effect to the words "subject to the provisions of this Act" without construing them in the restrictive sense suggested by my learned brother Sen, J. In my opinion they do not bar the jurisdiction of the insolvency Court to decide a question of title under the ordinary law when the special provisions of the Act do not apply. 10. In a later decision of the Allahabad High Court in Madan Kumar and Anr. v. M/s. Hari Narain Agrawal and Ors. following the Full Bench decision referred to above, it was observed as follows: As observed earlier, Section 53 refers to transfers which are only voidable and it does not cover a case where the transfer is claimed to be void since its inception. The bar of two years provided for in Section 53 should not therefore, apply to a transaction which is claimed to be void. 11. We are of the opinion that the learned Judge has laid down the Correct law on the subject. A Full Bench of the Bombay High Court in Padamsi Premchand and Ors. v. Laxman Vishnu Despande and Ors. A.I.R. 1949 Bom. 129 has taken the same view, which we have taken. In that case and which we feel is based on a correct and true interpretation of Sections 4 and 53 of the Act, after considering the history of the Act, Chagla, C. J., speaking for the Court observed as follows: It is perfectly true that Section 4 is merely declaratory of the jurisdiction of the insolvency Court....Therefore, Mr. Desai is right when he says that if a transaction falls within the ambit of Section 53, then it can only be challenged provided the conditions laid down in that section are satisfied.... In our opinion transactions which are challenged on the ground of their being fictitious or nominal do not fall within the ambit of Section 53, then Section 4 is wide enough to confer upon the insolvency Court jurisdiction to decide whether these transactions were in fact nominal or fictitiouSection Johri Lal Soni vs Smt. Bhanwari Bai on 1 August, 1977  4 12. We find ourselves in complete agreement with the view expressed by Chagla, C.J., in the aforesaid decision. The Bombay High Court further pointed out that the same view was taken by the Calcutta High Court in Radha Krishna Thakur and Anr. v. Official Receiver , by the Patna High Court in Biseswar Chaudhuri v. Kanhai Sing A.I.R. 1932 Pat. 129 the Nagpur High Court in G.N. Godbole v. Mt. Nani Bai A.I.R. 1938 Nag. 546 and the Lahore High Court in Budha Mal v. Official Receiver A.I.R. 1930 Lah. 122. The only decision which appears to have taken a contrary view is of the Oudh Chief Court in Amjad Ali and Ors. v. Nand Lal Tandon and Ors. A.I.R. 1930 Oudh. 314 which appears to be the shoot-anchor of the argument of the learned Counsel for the respondent. The Oudh Chief Court observed as follows: We do not consider that where in Section 53 which is governed by this heading the Act gives the Court power to annul transactions entered into within two year's we should go out of our way to find that a general section in the same Act gives power to the Court to annul transactions which may have been entered into at any time and which are voidable under the ordinary law under Section 53, T. P. Act. In our opinion transactions of this nature must be challenged, if at all, in an ordinary civil Court and not in the insolvency Court. With due respect, however, we are unable to agree with the view expressed by the learned Judges of the Chief Court Oudh, because they seem to overlook the distinction made by Section 53 between a void and a voidable transaction. Moreover, the Oudh Chief Court was concerned with a benami transaction and it is not necessary for us to say anything about such a transaction, because in the instant case we are concerned with a transfer which was sought to be challenged on the ground that it was a nominal and sham transaction and thus a void transaction which clearly falls within the four corners of Section 4 of the Act and is not covered by Section 53 of the Act so as to deprive the Insolvency Court of its jurisdiction to determine the question of title of the transfer. 13. For these reasons, therefore, we are clearly of the opinion that in the present case the Additional District Judge was right in holding that the. Insolvency Court had complete jurisdiction to decide the validity of the transfer when it was challenged on the ground that it was a sham and a fictitious transaction which need not have been set aside and a declaration that the transfer was void was sufficient. The view taken by the High Court is legally erroneous and is not in consonance with the correct interpretation of Section 4 and 53 of the Act. 14. We, therefore, allow? the appeal, set aside the judgment of the High Court and remit the case back to it for a fresh disposal of the appeal on merit Section We make no order as to costSection Johri Lal Soni vs Smt. Bhanwari Bai on 1 August, 1977  5