ORDER
(1) The opponent Baliram was on his own application adjudicated an insolvent on 23-9-1955. Consequent upon his adjudication, one of his creditors deceased Shamrao who in this revision application is represented by the appliants No. 1 to 3 as his legal representatives, made an application for annulment of a certain transfer made by Baliram. The annulment was sought under the provisions of Section 53 of the Provincial Insolvency Act. The transfer was a gift deed executed on 15-10-1953 by Baliram in favour of his son Dnyanneshwar, opponent No. 1 Both the insolvency Court as also the learned Diostrict Judge in appeal have dismissed this application for annulment of the transfer on the short ground that the property which was gifted by Baliram to his son was not liable to attaschment and sale and that therefore it was not propery which under Section 28 of the Provincial Insolvency Act vested in the Court or a receiver.
(2) The property which was the subject of the gift was originally land held in sir right which consequent upon the paswsing of the M.; P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, became land held in malikmakbua right by virtue of the provisions of Section 38 of that Act. Section 155 of the M. P. Land Revenue Code, 1954, however, stil maintains the bar of attachment ;and sale in regard to such land in a certain respect. Section 155 runs as follows :
“Any land which immediately before the date of vesting under the Madhya Pradesh Abolition of Proprietary Rights (Estate, Mahals, Alienated lands) Act, 1950, was recorded as sir land shall not be liable to attachment or sale in execution of a decree or order for the recovery of any debt incurred before the date of vesting except where such debt was validly secured by mortgage of orcharge on the cultivating rights in such sir land.”
Now, undoubtedly, so far as this section is concerned, it would apply to the land in question because it was recorded as sir land immediately prior to the coming into force of the M. P. Abolition of Proprietary Rights Act and the debt in respect of which it is sough to be attached and sold was incurred before the date of vesting. To that etent, Mr. Shidhaye of behalf of the applicants (the heirs of the deceased creditor Shamrao) does not dispute the order passed by the Courts below.
(3) But what he submits is that although the land as such would not be attachable or saleable, the bar of Section 155 does not apply to the income from such land. He has urged that in this field there stands an orange garden, and the usufruct of the garden can be attached. Simply because the father has chosed to transfer the whole garden to his son, the latter is taking a very substantial income any yet, it is urged, because of Section 155, the property which belonged to the father before the gift does not vest in the insolvency court. The bar of attachment and sale created by Section 155 of the M. P. Land Revenue Code is a bar which is in derogation of the normal right of a creditor to realise his debts out of the properties of his debtor, and therefore it seems to me that that bar must be strictly construed. When S. 155 refers to any land, it seems to me that it cannot possibly apply to the income or usufruct of that land, and therefore to the extent that the orange garden yields an income from its crop, I see no reason wy a receiver cannot be appointed.
(4) Under Se. 60 of the Code of Civil procedure, serveral items of property are not subject to attachment, one of them being a right of maintenance. Nevertheless, their Lordships of the Privy Council held in Rajendra Narain Singh v. Mt. Sundar Bibi, , that although the right of maintenance is in point of law not attachable and saleable under Section 60, the creditor’s proper remedy lies, in a fitting case, in the appointment of a receiver for realising the rents and profits of the property paying out of the same a sufficient and adequate sum for the maintenance of the judgment-debtor, and his family, and applying, the balance, if any, to the liquidation of the judgment-credito’s debt. It seems to e that the analogy of this ase would apply here, and that there is no bar even having regard to the provisions of Section 155 of the M. P. Land Revenue Code to the appointment of a receiver to recover the income or the usufruct from the property transferred under the gift deed dated 15-10-1953. To that extent, therefore, that part of the property of the insolvent would under the provisions of Section 28(2) read with Section 28(5) of the Provincial Insolvency Act vest in the insolvency Court. Therefore, it cannot be said that the mere fact that the land transferred by the figt deed is not subject to attachment and sale would bar an inquiry under Section 53 so far as the gift deed is concerned. That was the only ground upon which the application for annulment of the gift deed was rejected by the Courts below. That ground cannot be sustained and therefore the orders of the Courts below are set aside. The case will now go gback to the Insolvency Court for determination of the application for annulment dated 17-2-1956 of the gift deed dated 15-10-193.
(5) The application is allowed but in the circumstances there shll be no order as to costs.
(6) Application allowed.