BHAGWANT KISHORE Vs. BISHAMBHAR NATH

JUDGEMENT

(1.) This appeal arises out of a claim put forward in insolvency proceedings. The insolvent is Madan Lal. The claimants are his sons, Bhagwant Kishore and Chandar Kishore. The claim relates to the offerings made at a shrine called Kuawala. A sum of Rs. 1300 was in the hands of a receiver in respect of the offerings for a particular period. It should be noted that the receiver was not the receiver in insolvency but was a receiver appointed in a proceeding under Section 145, Criminal P. C. The official receiver desired this amount to be paid to him claiming it to belong to the estate of the insolvent Madan Lal. Bhagwant Kishore and Chandar Kishore objected claiming that the offerings belonged to them. Both the Courts below have held that the offerings formed part of the estate of the insolvent and have, therefore, rejected the claim of Bhagwant Kishore and Chandar Kishore, who have come up in appeal to this Court.

(2.) The brief history of the right to receive the offerings at the shrine of Kuawala is that the members of the insolvent's family, for some time past, had a right to receive the offerings made at the shrine. Har Narain the father of the insolvent, had a moiety share in them, the other moiety share vesting in another member of the family, Munna Lal, Har Narain purchased Munna Lal's share, in the year 1915. Har Narain subsequently made a will in respect of this right to receive offerings. Bhagwant Kishore claimed as a legatee under the will and Chandar Kishore claimed under a gift from his father, the other legatee under the will. All these transfers have been held by the Courts below to be in operative and it has been found that the right to receive offerings is the joint family property in the hands of the insolvent, having been inherited from his father, Har Narain.

(3.) It is not necessary to enter into the details of the transfers made by Har Narain and the insolvent because it is conceded that the decision of the case depends upon the question whether Har Narain was competent to make a will and whether the right purchased from Munna Lal was the self-acquired property of Har Narain or was joint family property. There is no positive evidence in the case to prove either that Har Narain invested ancestral fund in making the purchase nor is there any positive evidence to prove that Har Narain had any private source of income from which he could make a self-acquisition. The decision of the case must, therefore, depend upon the presumptions of Hindu law.