BAI HIRA DEVI AND OTHERS versus THE OFFICIAL ASSIGNEE OF BOMBAY

Citation: [1958] 1 S.C.R. 1384 · Decided: 20-02-1958 · Supreme Court of India · Bench: NATWARLAL HARILAL BHAGWATI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

19S8 
February 20. 
1384 
SUPREME COURT REPORTS 
BAI HIRA DEVI AND OTHERS 
v. 
[1958] 
THE OFFICIAL ASSIGNEE OF BOMBAY 
(BHAGWATI, J. L. KAPUR and GAJENDRAGADKAR JJ.) 
Evidence-Deed of gift-Donor adjudged insolwnt-Offici.:JI 
Assignee challenging giftt-lf donees ~ntitled to lead evidence 
showing gift to be transfer for consideration-Whether Official 
Assignee representative in interest of i~olvent-Evidenct Act, 
.s. 92.-Presidency-towns Insolvency Act (Ill of 1909), s. 55. 
One D executed, on May 22, 1950, a deed of gift in favour of 
the appellants, his wife and sons. 
Upon the application of his 
creditors D was adjudged an insolvent on August 21, 1951 and 
his esUjte vested in the respondent. On September 26, 1951, the 
respondent took out a notice of motion under s. 5 5 of the Presi-
dency-tOJ''IlS Insolvency Act for a declaration that the dced of 
gift was void. 
In reply the appellants pleaded that the trans-
action, though it purported to be a gift, was in reality a transfer 
for valuable. consideration. 
The respondent objected that th<> 
evidence which the appellants sought to lead in support of their 
plea was inadmissible under s. 92 of the Indian Evidence Act: 
Held, that s. 92 of the Evidence Act was not applicable to 
the proceedings and the appellants were entitled to lead evidence 
in support of the plea raised by them. 
Section 92 is only applic-
able to cases as between parties to an instrument or their 
representatives in interest. 
Where, however the dispute is 
between a stranger to an instrument and a party to it or his 
representative in interest, s. 92 is inapplicable, and both tlte 
stranger and the party or his representative are at liberty to lead 
evidence of oral agreement notwithstanding the fact that such 
evidence if believed, may contradict, vary, add to or subtract 
from its terms. 
In the present case, though the appellants were 
the representatives in interest of the insolvent the respondent, 
when he made the petition under s. 5 5 of the Presidency-towns 
Insolvency Act, was not acting as a representative in interest of 
the insolvent, and, therefore, the proceedings were not between 
the parties to the instrument or their representatives in .interest. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 
197 of 1956. 
Appeal from the judgment and order dated August 
6, 1954, of the Bombay High Court in Appeal No. 30 
of 1954, arising out of the judgment and order dated 
January 28, 1954, of the said High Court in Insolvency 
No. 74 of 1951. 
S.C.R. 
SUPREME COURT REPORTS 
1385 
M. C. SetalVad, Attorney-General for India, S. N. 
1958 
Andley and J. B. Dadachanji, for the appellants. 
Bal Hira Devi 
Purshottam Tricumdas and I. N. Shroff, for the 
and Others 
respondent. 
v. 
1958 February 20. The following Judgment of the 
The Officialb . 
Court was delivered by 
' 
Assignee of Bom a} 
GAJENDRAGADK.AR J .-This appeal by special leave Gajendragadkar I. 
arises from the notice of motion taken out by the res-
pondent official assignee under s. SS of the Presidency-
towns Insolvency Act against the appellants for a 
declaration that a deed of gift executed by the insol:· 
vent Daulatram Hukamchand on May 22, 1950, in 
favour of the appellants was void. It appears that 
some creditors of Daulatram filed .a petition in the 
High Court of Judicature at Bombay, Insolvency 
Case No. 74 of 1951, for an order that the said 
Daulatram be adjudged insolvent as he ·had given 
notice of suspension of payment of the debts on 
August 2, 1951. Daulatram 
was adjudicated in-
solvent on August 21, 1951, with the result that the 
estate of the insolvent vested in the respondent under 
s. 17 of the Act. On September 26, 1951, the respon-
dent took out the present notice of motion. The 
impugned deed of gift has been executed 
by· the 
insolvent in favour of his wife and three sons who are 
the appellants before us. In reply to the notice of 
motion appellants 1 to 3 filed a Joint affidavit setting 
out the facts and circumstances under which the said 
deed of gift had been executed by the insolvent in 
their favour. In substance, the appellants' case was 
· that, though the document purported to be a gift, it 
was really a transaction supported by valuable con-
sideration and as such it did not fall within • the 
mischief of s. 55 of the Act. At the hearing . of this 
notice of motion before Mr. Justice Coyajee, when the 
appellants sought to lead e~idence in support of this 
plea, the respondent objected 

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