MANCHERSHA ARDESHIR DEVIERWALA Vs. ISMAIL IBRAHIM PATEL
LAWS(BOM)-1935-12-12
HIGH COURT OF BOMBAY
Decided on December 03,1935

MANCHERSHA ARDESHIR DEVIERWALA Appellant
VERSUS
ISMAIL IBRAHIM PATEL Respondents

JUDGEMENT

Divatia, J. - (1.) THIS revisional application is preferred by the original complainant against the order of discharge of the four accused who were charged with offences under Sections 421, 423 and 109 of the Indian Penal Code. The discharge order having been confirmed by the Sessions Judge, the complainant has come to this Court in revision.
(2.) HIS case in substance was that he and accused Nos. 1 and 2 were partners in the business of making charcoal out of wood. These two accused had obtained the right of cutting trees and making charcoal from wood in some villages in the Bansda State. The charcoal was to be brought to Bulsar in British India for sale. The complainant was the financing partner and after accounts between the parties were made up, these accused had in 1931 pledged some ready made charcoal to the complainant for Rs. 16,000 and had agreed to deliver it to him at Bulsar. As the accused failed to do so, the complainant had filed suits against the accused. One suit was filed in Thana Court in which one Ranchhodji, accused No.3, who alleged that some of the charcoal was pledged to him, was appointed a receiver by consent of the parties; this Ranchhodji, being afraid that his pledge may not be substantiated, instigated accused Nos. 1 and 2 to pass a sale-deed for a nominal sum to his joint nephew, accused No.4, of their rights to cut trees under the agreement made with the Bansda State. It is alleged that this sale-deed of November 13, 1932, was passed with the intention of defrauding the petitioner who was a creditor of accused Nos. 1 and 2 for a large amount. Thereafter, the complainant applied for the adjudication of accused Nos. 1 and 2 as insolvents, and in the insolvency proceedings, accused No.4 preferred his claim under the above-mentioned sale-deed. Therefore, the complainant filed the present complaint alleging that all the four accused had committed the offences of fraudulent removal of property to prevent its distribution among creditors under Section 421, Indian Penal Code, and fraudulent execution of a deed of transfer containing a false statement under Section 423, Indian Penal Code, and the abetment of these offences. The trying Magistrate, without going into the merits of the case, held that the acts with which the accused were charged did not come under those two sections inasmuch as the right to cut trees which had been transferred under the said sale-deed could not be regarded as property, and, secondly, even if it was property, it was not property which could be lawfully distributed among creditors, being situated in the foreign State of Bansda, was not subject to the law of British India and could not be attached in Bansda State under British law, and hence the disposal of such property in a foreign State could not defeat or delay creditors. On these grounds, the accused were discharged by him. The learned Sessions Judge, who was approached in revision by the complainant, has held, and in our opinion rightly held, that the right of accused Nos. 1 and 2 under the agreement with the Bansda State to cut trees was property as decided in Alisaheb v. Mohidin (1911) 13 Bom. L. R. 874, but he agreed with the Magistrate that that property was not governed by the law in British India, that the receiver in insolvency could not touch the property in the foreign State which was governed by its own laws, and that it could not be said that it could be distributed in British India, and its transfer, therefore, could not be said to be fraudulent.
(3.) NOW, it seems to be clear on the authority of Alisaheb v. Mohidin that the subject-matter of the deed of transfer by accused Nos. 1 and 2 to accused No.4 is not only property but is also moveable property. That decision lays down that a contract for cutting of trees to be converted into charcoal is an agreement relating to moveable property. The learned counsel for the opponents contends that the right of cutting trees was only a personal license, and, therefore, not property which can be transferred, and he relies on some observations of the Sessions Judge that this was only a personal right, but the learned Judge himself has in another part of his judgment stated that the right is derived under a contract with the State, and there is nothing to show from the record that it was only a personal license. The document is not on the record.;


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