DWARKANATH MITTER Vs. A B MILLER

JUDGEMENT

(1.) It appears to me that there is no ground for interfering with this order. Putting out of consideration altogether the deposition of Anand Chandra Mitter, there is ample evidence in the testimony given by Ratanmani Dasi and Baddinath Mitter to show that the properties in dispute were held benami for the insolvent. The only question on which I had any doubt was the one which I suggested to Mr. Marindin at the close of his argument, as to whether section 26 of the 11th and 12th Vict., c. 21, authorized the Insolvent Court to make an order for the delivery of property, or for the payment of a debt alleged to be the property of the insolvent or to be due to him, when the title or debt was a matter in dispute. But looking to the words of the section, it appears to me that they are too strong to have any other interpretation put upon them than that the Insolvent Court has the power to order any person who has the possession of, or has under his power or control, any property of the insolvent to deliver over such property to the Assignee. The words, it shall be lawful for the said Court," do not appear to me to render it compulsory on the Court in all cases to try whether the disputed property belonged to the insolvent or not; but it is discretionary with the Court to enter upon the trial of such a question and to make an order. There are many cases of fraudulent transfers of moveable property on the eve of insolvency or after it, in which, unless the Insolvent Court had the power, the property might be made away with before an action could be brought and determined; and if the Court has the power, it appears to me that the present is one of those cases in which, in the exercise of its power, it ought to make an order. The case is one in which part of the property is claimed by the son of the insolvent, and part of it, viz., the company's paper, is claimed by the wife. It is proved by the wife and by the son that the rents of the property are sometimes paid to the mother, and sometimes to the son, and that the father (the insolvent) sometimes receives them; that the mother and son and the father all live together; and that the rents of the property are disposed of for the benefit of the whole family.

(2.) There was a technical objection raised by Mr. Marindin, with regard, to the Government paper, that the rule nisi mentioned paper standing in the names of the mother and the son, or in the name of one of them; whereas the paper, some three or four days before the rule nisi was granted, had been made over to Abinas Chandra, the son of Baddinath, the insolvent's son. Now, there seems to be no good reason why, just at that very moment, the Government notes should have been transferred to the son of Baddinath if the case were an honest one. It appears to me that the technical objection fails, and that the learned Judge who made the order was right in ordering that the Government note for rupees 3,000, which had not been bona fide disposed of, and which is described in the order, as the note realized as part of the proceeds of the Tallah property, should be transferred. But although the technical objection fails, it appears to me that the fact of that transfer tends very much to confirm me in my opinion that the Tallah property was held benami for the insolvent.

(3.) Then again, although the order is upon Baddinath to transfer the property, and upon Baddinath and the wife of the insolvent to transfer the note, the wife and the son join in one appeal against the whole of the order and allege as grounds of appeal, grounds which affect the order as to the land, as well as the order as regards the promissory note. It appears to me that that shows that the wife and the son had no very clear notion as to which of them the property belonged, and that the common object of the two was to protect the property for the benefit of the insolvent.