DEO SARAN RAI Vs. MAHA NARAIN MISRA

JUDGEMENT

(1.) THIS is an appeal under Section 75(2) of the Provincial Insolvency Act (hereinafter referred to as 'the Act') at the instance of purchaser of certain piece of land from Param Hans Jati, who died during the pendency of Insolvency proceedings before the court below and was substituted by his son Parsu Ram.

(2.) THE present appeal arises out of creditor's petition under Section 9 of the Provincial Insolvency Act, Sri Maha Naraln Misra, claiming himself as creditor of Sri Param Hans Jati filed a petition on 7.4.1975 with the allegation that Sri Param Hans and his son Sri Parsu Ram had borrowed Rs. 5,000 from him on 18.6.1974. In lieu thereof a sarkhat was executed. Thereafter Sri Param Hans Jati on 7.1.1975 executed a sale deed in favour of present appellant namely Sri Deo Saran Rat with intent to defeat the claim of the creditor. In the insolvency petition the relief that defendant No. 1 Sri Param Hans Jati (hereinafter referred to as debtor) may be declared insolvent and sale deed dated 7.1.1975 may be declared void and not binding on the creditor namely Maha Narain Misra, was claimed.

(3.) THE purchaser namely Sri Deo Saran Rai, the present appellant who was Defendant No. 2 in the insolvency case filed separate written statement on the pleas inter alia that the alleged loan of Rs. 5,000 is a fictitious transaction and no such loan was taken by the debtor from the creditor ; that the debtor has not committed any act of insolvency and that he is a purchaser for valuable consideration without notice. It was also pleaded that the sale deed was executed after paying full consideration and he is in possession of the land in question. A plea that full particulars of all the assets of debtor has not been given in the insolvency petition and, as such, insolvency petition is liable to be dismissed on this ground, was also raised. The plaint allegation that the defendant No, 2 had taken the money from his brother Sri Bal Karan Ram to show passing of sale consideration was also denied. Number of other pleas was also taken.