TIRATHRAJ TIWARI Vs. FIRM SHYAM SUNDAR BALKISHUN

JUDGEMENT

(1.) This is an appeal against the order of the District Judge of Manbhum- Sambalpur, dated May 30, 1935, in his insolvency jurisdiction in which he annulled certain transfers under Section 53 of the Provincial Insolvency Act. Neither party offered any evidence and the question of onus then became important. The learned District Judge placed the onus upon the transferees to show that the transfers were made in good faith and for valuable consideration. As they had adduced no evidence and, therefore, failed to prove that the transfers were made in the circumstances mentioned, he annulled the transfers under Section 53 of the Act.

(2.) Now as was pointed out by this Court in Ramchandra Sonaram V/s. Prithwis Narayan Sarkar 14 PLT 739 : 145 Ind. Cas. 524 : AIR 1933 Pat. 564 : 6 RP 188 the onus lies on the person challenging the bona fides of the transfer and not on the transferee. This decision is based upon the decision of their Lordships of the Privy Council in Official Receiver V/s. P. L. K. M. R. M. Chettiar Firm 58 IA 115 : 131 Ind. Cas. 767 : AIR 1931 PC 75 : 35 CWN 577 : Ind. Rul. (1931) PC 159 : (1931) ALJ 444 : 53 CLJ 373 : 60 MLJ 652 : (1931) MWN 615 : 9 R 170 : 33 Bom. LR 867 : 34 LW 36 (PC). The decision under appeal, therefore, cannot stand and it is set aside.

(3.) It remains to consider what other order, if any, should be passed by this Court. It is clear that the learned District Judge and also the opposite party were under a misapprehension as to the onus of proof. It is probable that the opposite party were induced not to offer any evidence when they saw that the party on whom the onus was believed to lie, did not offer any evidence.