RAMCHANDRA SONRAM Vs. PRITHWIS NARAYAN SARKAR

JUDGEMENT

(1.) This miscellaneous appeal is from an order of the District Judge of Manbhum passed under Section 53, Prov. Ins. Act, on an application of the Receiver in the insolvency of Moti Singh. The Receiver applied under that section for cancellation of three mortgages. We are in this appeal concerned only with the mortgage of one Ramchandra Sonaram for Rs. 600 which was executed some eight months before the petition for insolvency. The reason given by the learned Judge for setting aside this transfer is that the mortgagee had failed to discharge the onus which the learned Judge considered to lie on him of proving the bona fides of the mortgage.

(2.) The learned Judge relied upon a ruling of this Court in Hemraj Champa Lall v. Ramhishen Ram (1917) 2 Pat LJ 101. The law on the subject of the onus under Section 53, Insolvency Act, has now been settled by the decision of the Privy Council in Official Receiver V/s. P.L.K.M.R.M. Chettyar Firm where it has been decided that the onus lies on the person challenging the bona fides of the transfer and not on the transferee. The finding of the learned Judge has undoubtedly been coloured by the view he took regarding the onus and his finding must be set aside on that ground.

(3.) The case will go back for the learned Judge to give the parties an opportunity of adducing evidence with regard to the passing of consideration and the genuineness of the transaction. As this case dates from 1928, it is hoped the learned Judge will make an endeavour to expedite the hearing and dispose of the matter as soon as possible. Costs will abide the result. Macpherson, J.