BALA VENKATARAMA CHETTY Vs. ANGATHAYAMMAL

JUDGEMENT

(1.) The appellant is a creditor of an insolvent. The Official Receiver brought the property of the insolvent to sale and the insolvent's wife (1 respondent) claimed a certain share in the house. The documents relating to this house show that the insolvent's father Krishna Chetty sold it under Ex. F on February 26, 1912, to one Tirumalamma his sister. Krishna Chetty had three sons one of whom was the insolvent. The others were Ramaswamy Chetty and Kandaswami Chetty. These latter two sons distinctly state in the sale deed that the house was the self- acquired property of their father in which they had been jointly living and which they had been enjoying. On November 29, 1913, there was a deed of partition, Ex. E between the father Krishna Chetty and the two brothers of the insolvent Rama- swami Chetty and Kandaswami Chetty. The insolvent does not appear there. There is a statement in the deed that the persons dividing possess no immovable property. On the same day Tirumalammal re-conveyed under Ex. G the house to Krishna Chetty and on June 9, 1916, the latter sold a portion of it under Ex. H to his son Kandaswami Chetty, who under Ex. B on March 22, 1917, mortgaged his portion to Tirumalammal usufructuary and by Ex. A he sold it to the insolvent's wife (1 respondent) to clear off Tirumalammal's mortgage. The father Krishna Chetty having died, Kandaswami Chetty succeeded to another portion of the house which he sold under Ex. C on October 27, 1919, to the insolvent's wife. When the insolvent's wife made her claim, the Official Receiver proceeded to determine the same and her claim was allowed by him. On appeal, preferred under Section 68 of the Insolvency Act, the matter was by consent of parties remanded to the Official Receiver who on further enquiry found in favour of the insolvent's possession. His order was dated April 20, 1927. On July 16, 1927, the insolvent's wife (1st respondent) put in a petition under Section 4 and on this petition her claim was admitted by the learned District Munsif and on appeal his order was confirmed by the learned District Judge. Against this order the second appeal is perferred.

(2.) The question of fact involved in the case was whether a portion of the house sold to the insolvent's wife under Exs. A and C by Kandaswami Chetty belonged to him or to the insolvent. The allegation for the insolvent's wife was that the insolvent had been separated from the family before the partition of his brothers with his father under Ex. E, that the house had been built by Krishna Chetty, the insolvent's father with his own funds and that the insolvent's wife had purchased it with funds provided by her mother. In the trial before the learned District Munsif the 1 respondent (insolvents wife) called certain witnesses and filed certain documents but the appellant (the insolvent's creditor) contented himself with marking certain depositions given before the Official Receiver in his enquiry. It is sought to attack the finding of fact in second appeal by saying that both the courts ignored the evidence (Exs. IV-VIII) given for the appellant and said that he had adduced no evidence. That is not, however, correct. What the District Munsif says is: There is no evidence, on behalf of the counter-petitioner to show that the insolvent advanced money to the petitioner to purchase under Exs. A and C. This was the counter-petitioner's case and it is correct that the counter- petitioner did not adduce any evidence on this point. The statement relied on in the order of the District Judge is as follows: As the learned District Munsif has properly pointed Out, the burden lay upon the Official Receiver to prove that the property to which the respondent laid claim was the property of the insolvent. He did not let in any evidence to prove that. "He" here evidently refers to the Official Receiver. The statement is perfectly correct and it is a matter of some importance. The Official Receiver had himself come to the conclusion that the property belonged to the insolvent. He might, therefore, quite easily have himself put in a petition to annul the sale deeds in favour of the insolvent's wife if he had been strongly convinced of the falsity of her claim. But he neither did this nor did he give or produce any evidence leaving the whole matter to the present appellant. There is, therefore, nothing is show that the trial and Appellate Courts did not consider Exs. IV to VIII which were filed as evidence by the present appellant. They had ample evidence for the finding of fact based on documents, one of which goes back to 1912 long anterior to the insolvency proceedings. The documents bear out the respondent's case. It is not open to me in second appeal to disturb this finding of fact.

(3.) As regards the question of onus the whole evidence was before the court and as observed above while the 1 respondent put in cogent documentary evidence the appellant contended himself merely by filing statements given by the witnesses before the Official Receiver.