RATTANCHAND Vs. HANS RAJ JAMGIRI MAL

JUDGEMENT

(1.) THIS Lettlers Patent Appeal against the order of a learned Single Judge has arisen in the following circumstances; Brif Lal and Hans Raj were two Brothers being the sons of Jangiri Mal. In the year 1949 an applies-tion was made by the creditors of Brij Lal and the Insolvency Judge, Barnala, adjudicated him as insolvent. Shri Mohinder Lal was appointed as the Receiver by the order of the court dated 25th of November, 1954, of the property of Brij Lal at Ahmedgarh (then in Pepsu) and was directed to take possession of his property. On 26th and 27th of November the Receiver took possession of and attached the properly, including some Urban property and agricultural land, which is the subject-matter of these proceedings. Hans Raj filed an objection application on 21st of December, 1954, purporting to be under Section 4 of the Provincial Insolvency Act (hereinafter reterr-ed to as the Act) alleging that the property, detailed in the application, belonged to him, that the same was in. his exclusive possession; that the insolvent had nothing to do with it and that the Receiver had taken possession of the property knowing full well that the same belonged to the objector. He prayed that the property be released from attachment and possession restored to him and mat ihe Receiver be ordered not to realise any rent of the property which he was doing. He also prayed for the refund of the rent that he may have already realised. The Receiver, while admitting that he had taken possession of the property, pleaded that he had taken possession of it at the instance of B. Rattan Chand ana kishori Lal sons of Kabli Mal creditors. The issue originally settled, in addition to the issue of relief, was as follows : is the objector owner of the suit property and in possession thereof and is it accordingly not liable to be attached by the Receiver? later another Issue was added as No. 3 as follows : whether the objection petition is time-barred?

(2.) EVIDENCE was led by ths objector in order to esta-blish that during the lifetime of their father Jangiri Mal, the parties had partitioned the family property and that he was in exclusive possession of the urban and agricultural property claimed by him. After considering the evidence the learned Insolvency Judge came to the conclusion that there had been partition between the parties and that Hans Raj was in exclusive possession of the property in dispute. In view of this, he held that the same was not liable to be taken possession of by the Receiver. On issue no. 3 the Court held that the application had not been filed under section 68 of the Act and, therefore, need not have been filed within 21 days and that the same being under Section 4 of the Act, was within time. The receiver went up in appeal against this order. The learned district Judge differed from both these findings in paragraph 9 he observed as follows: "* * I am not convinced that the properties in dispute are held exclusively either by Hans Raj or Brij Lal". He then went on to discuss the evidence of the Bank of Patiala who was admittedly a tenant in one of the houses in dispute and also the evidence of the officials of the post office, a tenant in another part of the building. He atso referred to a number of entries in the bams of the so-called tenants but inasmuch as hans Raj had not produced his own books of account and there was no evidence that firm Jangiri Mal Hans Raj, on whose behalf he was receiving the rent, was his exclusive firm in which his brother was not a partner, the learned District Judge came to the conclusion that there was no severance in the status of the joint Hindu family ana no partition of the entire property of the joint Hindu family came about. On the question of limitation, he found against Hans Raj objector and, consequently, accepted the appeal and dismissed the objection petition of Hans Raj. Hans Raj came up in second appeal from order (No. 27 of 1957) and the learned Single Judge confirmed the finding of the Court below that there has been no complete partition between the two brothers but that there had been partial partition between the brothers, the learned Judge went through the documentary and oral evidence and came to the conclusion that the lower appellate Court was justified in discarding all this evidence which was led to show the exclusive possession of Hans Raj. The learned judge then went on to say as follows:

(3.) THE first point urged by the learned counsel for the appellant is that the objection application was barred by time. Section 68 of the Provincial Insolvency act runs as follows: