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Musammat Khazano and anr. Vs. Banwari Lal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in63Ind.Cas.519
AppellantMusammat Khazano and anr.
RespondentBanwari Lal and ors.
Excerpt:
insolvency - receiver, attachment of property by--objection to attachment--property, whether belonging to insolvent--burden of proof. - - under the circumstances of this case the onus was clearly on the receiver to show that this property was the property of the insolvent, and there really is not, a scrap of evidence which would justify such a finding. we are perfectly satisfied that the judge bad no alternative but to give effect to musammat khascano's claim, against which the receiver had nothing to advance......contained a thatched shed which is now in dispute, or the cow, there is no evidence that the wife musammat khazano, the present appellant, ever knew what he had stated in his schedule. the uncontradicted evidence on the application with which we now have to deal is that at the time of the insolvency musammat khazano, the wife of the insolvent, was living apart from her husband; was working as a cook receiving wages and assistance by way of charity; and that the insolvent was living somewhere else, being in some service, altogether separate from his wife. on the 20th of january 1920 the receiver attached the house which the insolvent had mentioned in his application, also the land, the thatched shed, and the cow. immediately after this attachment musammat khazano filed the present.....
Judgment:

1. In this case one Chiranji Lal was made insolvent in the year 1914. In his schedule of property he mentioned one house which is part of he property now in dispute He did not mention the other piece of land which contained a thatched shed which is now in dispute, or the cow, There is no evidence that the wife Musammat Khazano, the present appellant, ever knew what he had stated in his schedule. The uncontradicted evidence on the application with which we now have to deal is that at the time of the insolvency Musammat Khazano, the wife of the insolvent, was living apart from her husband; was working as a cook receiving wages and assistance by way of charity; and that the insolvent was living somewhere else, being in some service, altogether separate from his wife. On the 20th of January 1920 the Receiver attached the house which the insolvent had mentioned in his application, also the land, the thatched shed, and the cow. Immediately after this attachment Musammat Khazano filed the present application in the Insolvency Court, stating simply that the property was here and that the attachment was unlawful. A certain amount of evidence was given which has a ring of truth about it and which, at any rate, is uncontradicted. It goes to show that Musammat Khazano, with the assistance of her master by way of a loan, had purchased this property with the exception of the cow out of her savings, which were not sufficient to pay the price of both; that she borrowed the balance and that she paid the lender in whose name the property stood, who transferred the property to her; so that at any rate the sale-deeds are in her name. There is uncontradicted evidence that she provided the purchase money and as regards the cow which she says was given her as a reward or bukshith, her claim has been allowed by the court below. Under the circumstances of this case the onus was clearly on the Receiver to show that this property was the property of the insolvent, and there really is not, a scrap of evidence which would justify such a finding. The learned Judge seems to have misconceived the nature of the application. He has obviously treated it as though it were an ordinary suit by an alleged owner against somebody in possession, and he seems to have applied the old maxim, that the plaintiff must succeed on the strength of her own title and not on the weakness of her adversary's, and after criticising the somewhat vague and inconsistent evidence about how this purchase came to be made and how the purchase-money was raised, he found that Musammat Khazano had not an exclusive interest in the property, which means presumably that she had a limited interest in it. The extent of her interest is a matter between her and her son, which does not coneern the Receiver. We are perfectly satisfied that the Judge bad no alternative but to give effect to Musammat Khascano's claim, against which the Receiver had nothing to advance. The appeal must be allowed, the attachment released and all the property included in the application handed over to Musammat Khazano with costs here and below. Any question between the mother and son is not a question for the Insolvency Court.


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