BASIRUDDIN THANADAR Vs. MOKIMA BIBI

JUDGEMENT

(1.) This appeal is preferred from an order of the District Judge of Rungpur, dated the 16th April 1917. For the present purpose the order must be treated as an order made under Section 36 of the Provincial Insolvency Act, refusing an application made by certain creditors of the insolvent that two conveyances executed by him within two years of the date on which he was so adjudged should be annulled. The conveyances in question were in favour of his two wives Nabnat Bibi and Mokima Bibi and are both dated the 11th January 1915. They are each in the nature of a hiba-bil-ewaz. In other words, they purport to have been executed in consideration of the dower debts which the insolvent owed to his wives respectively. In January 1915, the insolvent had been married to Nabnat for about 11 years and to Mokima for about 5 years. The dower promised in the case of Nabnat is said to have been Rs. 1,500 and in the case of Mokima, whose father was in better circumstances than the father of Nabnat, Rs. 5,000. The insolvency proceedings were commenced by an application made by the insolvent on the 17th August 1916 and the order of adjudication is dated the 25th November 1916. In the schedule of debts attached to the application) the insolvent estimates his liabilities at Rs. 17,975 and his assets at Rs. 19,872.

(2.) The case made for the creditors, one of whom Basiruddin Thanadar is the appellant before us, is that at the time the hibas were executed the affairs of the insolvent were in an involved state and the two hibas represent merely benami and colourable transactions. The insolvent has himself admitted that in January 1915 he was indebted to the extent of ten or twelve thousand rupees. He has not admitted, however, that he was at the time insolvent nor does it appear that there were then any decrees outstanding against him. He owed a considerable amount to the appellant creditor for which the appellant in the course of the year 1915 after the execution of the hibas brought a suit against him. The suit was for the balance due on business transactions which took place in 1912-13. It is further in evidence that on the 15th May 1914 the insolvent had borrowed on a note of hand the sum of Rs. 6,000 from the Rungpur Bank. In August of the same year he also borrowed Rs. 1,000 on a note of hand from the North Rengal Bank. The appellant creditor obtained a decree against the insolvent on the 12th January 1916 for the sum of Rs. 5,785. The Rungpur Bank and the North Bengal Bank also sued the insolvent in the course of the year 1915 and obtained decrees on the 13th December 1915 and the 4th January 1916 respectively. It appears that there was another decree against the insolvent obtained in the Small Cause Court for Rs. 684 with costs dated the 15th June 1916. Regard being had, therefore, to the prevalency of benami transactions in this country and to the surrounding circumstances it may well be conceded that there is some initial suspicion about these two hibas. It may also be conceded, as it is not disputed, that in a case arising under Section 36 of the Provincial Insolvency Act the burden of proving that the transaction impugned was carried out in good faith and for valuable consideration is on the transferee. This has been so held in the case of Nilmom Chowdhuri v. Basanta Kumar Banerjee 29 Ind. Cas. 814 : 19 C.W.N. 865 decided by this Court and in the case of Muhammad Habibullah v. Mushtaq Husain 37 Ind. Cas. 684 : 39 A. 95 : 14 A.L.J. 1183 decided by the Allahabad High Court.

(3.) Now in the Court below it has been found on the evidence that these two ladies, the wives of the insolvent, have succeeded in showing that their husband owed them as dower the sums I have stated. We have been taken through the evidence and I see no reason to differ from the opinion formed by the learned District Judge on this part of the case. It is practically common ground, regard being had to the admission made by the witness on behalf of the appellant creditor, that the insolvent was the son of a prosperous man and that he was at one time himself a prosperous shopkeeper. He and his wives came from the District of Ballia in the United Provinces, though the insolvent had a shop at Rungpur and lived there for a number of years. On the evidence as it stands on the record it cannot be said that the sums claimed as dower are in any way excessive. The main point which was made by the appellant in this connection is that the dower debts are not supported by any kabilnama or written document. But witnesses on both sides who are acquainted with the District of Ballia and with the practice of people there in similar circumstances with the insolvent state that in that district it is not usual to execute such documents. There is no doubt evidence for the appellant creditor that the dower stipulated for in most cases is much smaller than the sums mentioned in the present case. But one of the witnesses states in cross examination that at his own marriage dower was fixed at 202 gold ashrafis, that is to say, a sum of about Rs. 3,232, and that no document was executed. It is said that what the witness really said was that the dower which he promised was Rs. 200 and 2 gold ashrafis. But the learned District Judge has taken the statement as it stands in the deposition. No step appears to have been taken to clear up the point in the Court below and we must also like the District Judge take the statement as it stands. On this part of the case, therefore, as to the probability of these sums having been promised as dower and being in fact due by the insolvent to his wives, I accept the conclusion arrived at by the District Judge. It follows that there were in fact in respect of these conveyances, which are challenged, antecedent debts which might constitute good consideration for them and the argument in this Court has turned mainly on the value of the properties transferred.