Chagla, C.J. - (1.)This is an appeal against a judgment of Coyajee J. and it arises out of a motion taken by the Official Assignee, who is the assignee of the estate and effects of the husband of appellant No. l and father of appellants Nos. 2, 3 and 4, for a declaration that a deed of gift dated 22-5-1950, made between Daulatram Hukamchand and the appellants was void as against the Official Assignee. The learned Judge, after taking evidence, decided in favour of the Official Assignee and held this deed of gift to be void.
(2.)Now, a petition was presented by a creditor on 9-8-1951, to adjudicate Daulatram insolvent, and the act of insolvency which was relied upon was a notice of suspension of payment of his debts given by him on 2-8-1951. He was adjudicated insolvent on 21-8-1951. The Official Assignee has challenged the deed of gift under Section 55, Presidency-towns Insolvency Act, and that section permits him to avoid a voluntary transfer. If a transfer is made in consideration of marriage, or if it is made in good faith and for valuable consideration, such a transfer cannot be challenged by the Official Assignee. But if a transfer is made without consideration, then such a transfer by the insolvent is liable to toe challenged provided the transfer is made within two years of his adjudication. In this case, the insolvent was adjudged on 21-8-1951, and the date of transfer is 22-5-1950, and so the Official Assignee, if he could satisfy the Court that transaction was without consideration, was within his rights in challenging the transaction.
(3.)Turning to the deed of gift, it is a short document and it sets out the donees, who are the wife and the three sons of the donor including a minor son; and then the operative part of the document transfers, assigns and conveys to the donees all the lands, hereditaments and premises described in the schedule in consideration of natural love and affection which the donor bears to his sons, the said donees. Although the donees include the wife, through some curious omission or bad drafting, natural love is indicated only In favour of the sons and not of the wife. But it is clear that this is a disposition of property by the insolvent in favour of his wife and children without consideration. It constitutes a deed of gift and satisfies the conditions of Sections 122 and 123, Transfer of Property Act. It is not disputed in this case that the property transferred was accepted by the donees: they were actually In possession and received the Income of the property. Section 123 requires that, in the case of a gift, the transfer must be effected by a registered document signed by or on behalf of the donor, and attested by at least two witnesses. All these formalities have been complied with, Now, what was sought to be urged by the appellants before Mr. Justice Coyajee was that, although the document purported to be a deed of gift, in fact it was a conveyance for consideration, and they wanted to prove that there was consideration for transfer of property, the subject-matter of the motion. The learned Judge allowed the evidence and on the evidence held that there was no consideration for the transfer of these properties to the appellants and therefore the Official Assignee was entitled to succeed.