The central legal point established in the judgment is the interpretation of the jurisdiction of the insolvency court under Section 53 of the Provincial Insolvency Act to set aside property transfers in cases involving insolvents and their family members.

Kuppuswami Ayyar, J.

1. This is an appeal by a creditor in insolvency against the order of the District Judge of Ellore refusing to set aside a mortgage deed executed by the insolvent and his sons so far as the document related to a transfer by the sons of the insolvent. Exhibit 11 is the mortgage deed executed by Somayya the insolvent and his sons Venkateswara Rao and Venkata Subrahmanyam represented by the father as guardian. The Official Receiver filed the petitions C. M. P. NO. 342 of 1938 under Section 53, Provincial Insolvency Act, for setting aside that mortgage. The document was set aside only so far as it was executed by the father but so far as the execution of the document by the sons was concerned, the learned Judge came to the conclusion that it could not be set aside as there was an attachment in respect of the sons interest. The appellant has filed this appeal after obtaining leave of Court under Section 75 (3), Provincial Insolvency Act.

2. When the appeal was taken up for hearing, it was stated by Mr. Munikanniah for respondent 3 and by Mr. Vallabhacharyulu for respondent 4 that they are entitled to go into the merits of the order of the District Judge that they are not in a position to do so as the entire records have not been printed and that they were told that this is a case in which the parties are to file typed papers as printing had been dispensed with and it is only after the case came in the ready list they noticed that the papers had been printed at the instance of the appellant. I mentioned to them that in case that has to be gone into I would give them an opportunity to get the necessary documents typed and put into Court.

3. The only question argued before me is whether the insolvency Court had jurisdiction to go into the question as to whether the document Ex. 11 could be set aside so far as it was executed by the sons. Under Section 53, Provincial Insolvency Act, 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.

The Insolvency Court being a Court of special jurisdiction constituted under the Provincial Insolvency Act its jurisdiction and powers would be limited to and governed by the provisions of that Act. Under Section 53 of that Act, a transfer could be set aside by the insolvency Court only "if the transferor is adjudged insolvent." In this case, it is the father that was adjudged insolvent and not the sons. The sons being eo nominee parties to Ex. 11 and not having been adjudged as insolvents, the transfer under that document cannot be set aside so far as it related to them. In Subramaniam Chettiar v. Subbaraya Goundan AIR1935Mad246 it was held by Sundaram Chetti J. that the Insolvency Court had no jurisdiction to set aside the alienation so far as the son of a Hindu insolvent was concerned. It is true that in Palaniappa Chettiar v. Official Receiver, Madura A.I.R. 1937 Mad. 791 as also in Murugappa Mudali v. Official Receiver, Chittoor A.I.R. 1943 Mad. 303 that decision of Sundaram Chetti J. has been dissented from. But then, in Palaniappa Chettiar v. Official Receiver, Madura A.I.R. 1937 Mad. 791 the question was not considered by Pandrang Row J. in the light in which I have put it. It was stated in that ruling that as the father himself could convey the entire interest of the family in the property by an alienation the document would convey the entire interest in the property and hence could be set aside. But the question as to whether the conditions imposed by Section 53 of the Act could be said to have been fulfilled in a case like this was not dealt with by the learned Judge. Similarly in the other case in Murugappa Mudali v. Official Receiver, Chittoor A.I.R.