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Judgment
Macpherson, J.—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 u/s 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 u/s 53 of the Act.
Now as was pointed out by this Court in Hemendra Chandra Mullick Vs. Ballavi Devi and Another, . 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 AIR 1931 75 (Privy Council) . The decision under appeal, therefore, cannot stand and it is set aside.
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.
Accordingly the case will go back to the learned District Judge to determine the matter after giving an opportunity to the opposite party to adduce evidence and to the appellants to adduce rebutting evidence. The costs in this Court will abide the result in the Court below.
Mohammad Noor, J.
I agree.