JUDGMENT

1. In this case the learned District Judge has held that a mortgage and a gift are void against Receiver under Section 36 of the Provincial Insolvency Act (III of 1907). The transactions were effected about 6 1/2 months before the petition for insolvency was presented, and more than two years before the order of adjudication was passed. The District Judge considered that Section 36 Act III of 1907 is governed by Section 16 (6) of the same Act, and that, consequently, the transactions could be annulled since they took place within two years of the date of the presentation of the petition.

2. The main question raised in this appeal is, whether the District Judge was correct in this view of the law, and since there was some conflict of authority upon the point the learned Judge before whom the appeal came up for hearing has referred the case to a Division Bench.

3. At the time when the order of reference was passed there appear to have been only two Judicial decisions dealing with the matter in issue. In Bhagwant v. Munim Khan [1910] 6 N.L.R. 146 the Judicial Commissioner of Nagpur held that Section 16(6) of the Provincial Insolvency Act governed Section 36 and that the two years mentioned in the later section mean the two years before the date of the presentation of the insolvency petition. In Jokhan Singh v. Deputy Commissioner, Fyzabad [1914] 23 I.C. 924 the opposite view was taken by the Judicial Commissioner of Oudh. There have since been two cases decided in accordance with the view expressed by the Judicial Commissioner of Nag-pur, viz., Rakhal Chandra Purkait v. Sudhindra Nath Bose [1919] 46 Cal. 991 a decision of a Division Bench of the Calcutta High Court and Sankaranarayana Aiyar v. Algiri Aiyar a decision of a Division Bench of the Madras High Court. The later decision has also been approved in Sheo Nath Singh v. Munshi Ram [1920] 42 All. 433, though in that case there was no question as to the annulment of a transfer under Section 36 of the Act.

4. The weight of authority, therefore, favours the view taken by the District Judge, but after careful consideration of the judgments in the cases cited above we consider that the correct exposition of the law is that given, in Jokhan Singh v. Deputy Commissioner Fyzbad [1914] 23 I.C. 924. Section 36 of the Provincial Insolvency Act (III of 1907) provides that a transfer of property may be annulled if the transferor is adjudged insolvent within two years after the date of transfer, and in order to support the decision of the lower Court it must be held that the transferor is adjudged insolvent when the petition for insolvency is presented. Under Section 16(6) an order of adjudication shall relate back to and take effect from the presentation of the petition on which it is made, but this cannot mean that for all purposes the date of adjudication is to be taken as identical with the date of presentation of the petition. If there were any doubt on the subject it would be removed by the difference in the phraseology employed in Sections 36 and 37 of the Act. Section 37 allows the annulment in certain cases of transfers in favour of creditors "where the transferor is adjudged insolvent on a petition presented within three months after the date of the transfer." If the framers of the Act intended that the period provided by each section should terminate on the date of the presentation of the petition for insolvency it is obvious that the words "once a petition presented" which occur in Section 37 either should have been inserted also in S 36 or on the supposition that Section 16(6) would apply should have been omitted altogether.

5. This point is fully discussed in Jokhan Singh v. Deputy Commissioner, Fyzabad [1914] 23 I.C. 924 and in only one of the decisions in the respondents' favour, viz., Sankaranarayan Aiyar v. Alagiri Aiyar is any reference made to it. The decision in Bhagwant v. Munim Khan [1910] 6 N.L.R. 146 is based upon the wording of the corresponding English Act an