Kulwant Sahay, J.Pattilal Chaudhuri and his sons, who are members of a joint family, were adjudged insolvents on an application presented on 9th September 1926. The order of adjudication is dated 8th June 1927.

2. One of the creditors, Radhakishun, filed a petition before the receiver appointed in the insolvency proceedings, stating that the insolvents had fraudulently concealed some of the properties belonging to them and that some other properties had been fraudulently transferred by them within two years of the presentation of the petition for insolvency, and he asked the receiver to take proceedings to annul those transfers and to take possession of the properties sold. The receiver made a report on 25th August 1927, to the District Judge in which he dealt with no less than fifteen properties and he asked the Court to annul the transfers in respect of the properties which had been transferred within two years of the presentation of the petition in insolvency, and he further asked the Court to make a declaration to the effect that certain other properties belonged to the insolvents and that they had vested in the receiver.

3. On the same date he filed a regular petition before the District Judge for annulling some of the transfers and for declaring other transfers to be void so far as the receiver was concerned. Objections were made by the persons claiming the properties set out in the receivers petition, and the learned District Judge proceeded to act u/s 53 in respect of the transfers which were made within two years of the presentation of the petition and u/s 4, Provincial Insolvency Act, in respect of the other properties which the receiver alleged really belonged to the insolvents but in respect of which fictitious deeds of benami nature had been executed. The learned District Judge has, it appears, made an order annulling all the transfers made within two years of the petition of insolvency and, declaring the other transactions to be benami and fictitious transactions declared that the properties covered by those transactions had vested in the receiver.

4. Two of the claimants in respect of two of the properties have come up in appeal to this Court. Appeal No. 169 is by Bisesar Chaudhury who claims the property which is Serial No. 13 in the receivers petition to the District Judge. This property consists of 2 bighas 2 dhurs of occupancy kasht land in village Sharfuddinpur, bearing khata No. 3. The appellant in Appeal No. 193 claims the property No. 8 in the said schedule which consists of one anna milkiat share in village Madhopur, tauzi No. 1774.

5. The facts relating to these two properties have to be dealt with separately; but there is one question which is common to both the appeals and may be disposed of in the beginning. As regards property No. 13 the allegation is that this property, viz., the 2 bighas 2 dhurs of occupancy kasht land in Sharfuddinpur was purchased by the insolvents under a deed of sale dated 2nd March 1909, in the farzi name of one Bhondu Lal Chaudhuri. The receivers case is that Bhondu Lal Chaudhuri was a mere benamidar for the insolvents and the purchase was really made by the insolvents and that they have continued in possession ever since the purchase. The case of the receiver as regards property No. 8 is that the insolvents had executed a benami deed of sale in respect of this property on 24th July 1923, in the name of one Jaikishun Chaudhuri, but as a matter of fact there was no transfer and that Pattilal Chaudhuri the insolvent has continued in possession of this property also. The question for consideration therefore is whether the two properties forming the subject-matter of these appeals do really belong to the insolvents and whether the deed of sale taken in the name of Bhondu Lal and the deed of sale executed in favour of Jaikishun Chaudhuri were mere benami transactions. These two transactions took place more than two years before the presentation of the petition in insolvency and it is contended by the learned advocate for the appellants that having regard to the provisions of Section 53, Provincial Insolvency Act, the Court had no jurisdiction to annul these transactions and to make the declaration that these properties belonged to the insolvents and had vested in the receiver. As I have already stated, the learned District Judge proceeded in respect of these two properties u/s 4 of the. This section is comprehensive in its terms and gives power to the Court to decide all questions whether of title or priority or of any nature whatsoever, and whether involving matters of law or of fact, which may arise in any case of insolvency coming within the cognizance of the Court, or which the Court may deem it expedient or necessary to decide for the purpose of doing complete justice or making a complete distribution of property in any such case. Prima facie therefore the District Judge had under this section complete jurisdiction to decide the question whether the properties in dispute do really belong to the insolvents or to the persons who claim them.

6. It is however contended that the opening words of this section: Subject to the provision of this Act," indicate that the Court in exercising jurisdiction under the section is bound by the limitations imposed by Section 53; in other words, that in every case in which a transaction is challenged such transaction must have taken place within two years of the presentation of the petition in insolvency in order to give jurisdiction to the Court to decide the question of title raised before it. In my opinion this contention is not sound. Section 4 is controlled by Section 53 only in respect of transfers made by the insolvents. Section 53 deals with a real transfer of the property made by the insolvent whereby title has passed from the insolvent to the transferee. In such cases the law gives power to the Court to annul such real transfers if made within two years of the presentation of the petition, provided they are not transfers made before and in consideration of marriage or made in favour of a purchaser or incumbrancer in good faith and for valuable consideration. The transactions that we are now concerned with are alleged by the receiver not to be transfers at all.

7. It is alleged in one case that, although the property was purchased in the name of one Bhondu Lal, it was really a purchase made by the insolvents. In the other case it is alleged that although the insolvent purported to execute a deed of sale in favour of Jaikishun Chaudhuri, as a matter of fact there was no sale and the property still belongs to the insolvents. Section 53 therefore has absolutely no application to the facts of the present case, and the jurisdiction of the Court in dealing with these two transactions u/s 4 is in no way controlled by the limitation imposed by Section 53.

8. Section 4 was introduced for the first time in the of 1920 and did not find a place in the of 1907. There was a difference of opinion between the Calcutta and the Allahabad High Courts on the question whether the insolvency Court could or could not deal with the question of title to property. The Calcutta High Court had in the year 1918 held that the question of benami could not be determined by the insolvency Court, and any claim made by the receiver or the creditor that the property is really the property of the insolvent can only be enforced by a suit in the regular course: see Nilmoni Choudhury v. Durga Charan 46 Ind.Cas. 377. The learned Judges, however, had observed even then that:

Where the benami character of the title is admitted or where the veil is transparent and the insolvent is in substantial beneficial possession the Court may order the delivery of the property to the receiver.

9. The Allahabad High Court, however, had in 1914 come to the contrary conclusion in Bansidhar v. Kharagjit A.I.R 1914 All. 220 . There were thus two conflicting decisions on the same point under the Provincial Insolvency Act 1907. The legislature, when enacting the of 1920, introduced Section 4 in the for the first time, whereby extensive powers have been given to the Court to decide all questions of title or priority or of any nature whatsoever which may arise in any case of insolvency coming within the cognizance of the Court.

10. That the Court has jurisdiction to decide questions of benami u/s 4 and that its jurisdiction in this respect is not controlled by the limitations imposed by Section 53 has been held in various cases in the Allahabad, Lahore and Madras High Courts. In the Pull Bench decision of the Allahabad High Court in Haji Anwar Khan Vs. Mohammad Khan and Others the majority of the Judges held that an insolvency Court can try a question of title raised on the basis of a transfer which took place more than two years prior to the adjudication of the transferor as an insolvent, and they observed that Section 53 does not deal with the jurisdiction of the insolvency Court but only lays down certain rules of law affecting those transactions which fall within its scope and that it does not control or restrict the jurisdiction conferred upon a Court by Section 4 to decide on questions of title. Sen, J., no doubt took a different view, but the decision of the majority of the Judges was in favour of the view that Section 4 is not controlled by Section 53.

11. In Hari Chand Rai Vs. Moti Ram Sulaiman, J., held that a transfer which is wholly fictitious from the very beginning is of no effect and does not require to be annulled, but all that the Court has to do in such a case is to decide that it is void and that such decision will bind the claimant of the property as if it were by an ordinary civil Court; and he further held that the limitation of two years prescribed by Section 53, applied only to such cases where the transfers when originally made were good transfers of property and not to cases in which there was no real transfer at all. In this case also the other learned Judge, Mukharji, J., took a different view; but the Full Bench decision of the Allahabad High Court referred to above must be held to have overruled the view expressed by Mukharji, J. In fact one of the learned Judges, Dalal, J., observed that every Judge of the Allahabad High Court except one who had to consider the point, had decided in favour of the jurisdiction of the insolvency Court.

12. In Chittammal v. Ponnusami Naicker AIR 1923 Mad. 363, the Madras High Court held that it was open to the Court on a proper application being made u/s 4, Provincial Insolvency Act, to try the issue whether the insolvent is entitled to the property or not.

The same view was taken by the Lahore High Court in Wazir Singh v. Janki Das AIR 1926 Lah. 679.

13. The learned advocate for the appellants has referred to the decision of the Oudh Chief Court in Amjad Ali v. Nand Lal AIR 1930 Oudh 314. This case however does not support the appellants at all. In this case the transaction under consideration was a release by the insolvent made more than two years before the date of adjudication. In considering the transaction the learned Judges observed as follows:

We cannot accede to the argument of counsel that a deed of release accompanied by mutation and transfer of possession is not a transfer. It may have been a fraudulent transfer in order to defeat the creditors of the transferor, but it is none the less a transfer.

14. It was therefore on a finding that there had been a transfer that the learned Judges held that Section 53 applied and that it could not be a voided if made more than two years before the adjudication. They however distinguished the decision of the Calcutta High Court in Fool Kumari Dasi Vs. Khirod Chandra Das Gupta, , with the observation that that decision dealt with a case in which the transaction was held to be benami and that there had been no transfer in fact, nor was the Court required to annul the transfer. This decision therefore is in favour of the view that in benami transactions the limitation of two years imposed by Section 58 does not apply, and the Court can decide the question u/s 4 even if the transaction took place more than two years before the presentation of the petition in insolvency.

15. There is another fact which also deserves consideration. u/s 28(2) of the the effect of the making of an order of adjudication is that the whole of the property of the insolvent vests in the Court or in the receiver and becomes divisible among the creditors. Section 56 provides that upon the appointment of the receiver the property of the insolvent shall vest in him and Section 59 provides that subject to the provisions of the the receiver shall with all convenient speed realize the property of the debtor and distribute dividends among the creditors entitled thereto. Therefore all properties belonging to the insolvent vest in the Court or in the receiver.

16. When a question is raised whether a certain property is a property of the insolvent or not it is clearly the duty of the Court to determine the question, and the determination of this question is in no way controlled by the provisions of Section 53. As I have already stated Section 53. deals with cases where title to the property has passed from the insolvent to a third person. The cases we are now dealing with are cases in which the allegation is that the property is still the property of the insolvents and title has not passed to third persons. I am therefore of opinion that the order made by the District Judge was with jurisdiction.

17. I have now to deal with the facts of each case separately. Appeal No. 169 relates to property No. 13 in the schedule attached to the receivers petition. This is an occupancy kasht right in two bighas odd of land in Mauza Sharfuddinpur. It was purchased by one Bhondu Lal Chaudhuri under a deed of sale, dated 2nd March 1909. Bhondu Lal is dead and his son Biseswar Chaudhuri, who is the appellant in Appeal No. 169, claims the property as his. The evidence shows that although the kasht right stands in the name of Bhondu Lal, yet the insolvent Pattilal was all along in possession. Village Sharfuddinpur, where this kasht right is situated is owned by Umakant Prasad and Ram Charitar Misser, the former being the owner of 3 annas and the latter of 13 annas. Receivers witness 2, Singheshwar Lal, is the patwari of Umakant Prasad. He deposes that the holding of 2 bighas odd is in the possession of Pattilal who pays the rent and gets receipts, that Bhondu Lal and his son Biseswar never paid rent on account of the holding, nor had they possession; he produced his counterfoils and seahas which show that rents had always been paid by Pattilal. No doubt, in the jamabandis the name of Bhondu Lal appears as the tenant, but that must be so inasmuch as the sale deed stood in his name. There is no explanation why Pattilal always paid the rent and why rent was never paid by Bhondu Lal or by his son Biseswar. The appellant produced two rent receipts (Exs. A-1 and A-2) in support of his case that the rents had been paid by him. Ex. A-l is a receipt in respect of the rent for 1330. It shows a payment of Rs. 5 on 11th Jeth of that year, and the payment appears to have been made through Munilal Chaudhuri.

18. The case of the appellant is that this Munilal Chaudhuri is his uncle and that the rent was paid by him through his uncle. The learned Judge points out that in the receipt the name was originally Pattilal Chaudhuri and that this had been altered into Munilal Chaudhuri. The alteration is clear on an examination of the receipt itself. We looked into the counterfoil corresponding with this receipt and in that counterfoil the name is Pattilal and there is no alteration whatsoever. It is clear therefore that "Patti" has been altered into "Muni" in this receipt Ex. A-1 in order to show that the rent had not been paid by Patti. The other receipt produced by the appellant, viz., Ex. A-2 which relates to the year 1331, was in respect of two payments of Rs. 2 and Re. 1 made in Asin and Phagun. In this receipt there is nothing to show through whom the payment was made. It is contended that these two payments were made by the appellant. It is however remarkable that the receipt itself stands not in the name of the appellant but in that of his father Bhondu Lal Chaudhuri; and when payment was made by some person other than the person whose name stands in the receipt and that persons name is not given in the receipt, it cannot be concluded that the payment must have been made by Biseswar. The learned Judge has also referred to the fact that the land lies eight miles away from the place of residence of Bhondu who has no other land in this village, and it is not likely that he would purchase a small raiyati holding of two bighas odd at a place eight miles distant from his ordinary place of residence. Having regard therefore to the evidence of the case, I am not prepared to hold that the view taken by the learned District Judge in this case was incorrect. I would therefore hold that the property is a property of the insolvent and that the receiver may sell this property in order to pay off the creditors. Appeal No. 169 must therefore be dismissed with costs.

19. As regards Appeal No. 193 the facts are these: The property in dispute, viz., the 1 anna share in village Madhopur, tauzi No. 1774, was sold by the insolvents to Jaikishun Lal under a deed of sale, dated 24th July 1923. The necessity for which the sale was made is set out in the deed. The necessity consisted of debts due from the insolvents under hand-notes to several persons and a sum of Rs. 600 due to the purchaser Jaikishun Lal himself. Jaikishun Lal has produced two of the hand-notes (Exs. E and G) with endorsements of satisfaction thereof by means of payment made by Jaikishun Lal Chaudhuri himself. There is no reason to doubt the genuineness of these hand-notes or the truth of the payments endorsed thereon. It is true that there is no evidence as regards the other hand-note and the debt of Rs. 600 due to Jaikishun Lal; but there is no reason to suppose that these recitals were falsely made. It is said that this deed of sale was executed only a few days before a suit was instituted by one Sitaram, a creditor of the insolvents, against them. Sitaram applied for attachment of this property before judgment.

20. In that proceeding Jaikishun Lal filed an objection claiming this property as his. The Subordinate Judge disallowed the claim as he was of opinion that the deed of sale was not a bona fide transaction and it appeared to him to be a farzi document. Jaikishun Lal instituted a suit for declaration of his title to this property. This was Suit No. 107 of 1924 and Sitaram, the creditor, was the defendant in this suit. We find from Ex. 1 that there was a compromise between Jaikishun Lal and Sitaram, where by Sitaram acknowledged the title of Jaikishun Lal to this property and Jaikishun Lal executed a security bond in favour of Sitaram for the amount that might be decreed in favour of Sitaram against the insolvents. Sitarams suit against the insolvents was decreed and in order to pay off the decree of Sitaram for which Jaikishun Lal had stood surety, the latter executed a mortgage bond, dated 8th July 1925, mortgaging this very property to one Nirsu Chaudhuri for a sum of Rs. 1,750 and thus paid off the decree of Sitaram. It is contended that this shows that the property was really the property of the insolvents and that it is unusual for a person who stands surety to pay off the debt without the creditor making any attempt to realize the debt from the principal debtor. There may be reasons why Jaikishun Lal paid off the debt before an attempt was made to realize the debt from the insolvents; but what we have to consider is, whether there is any legal evidence on the record to justify the finding that the transaction of sale evidenced by the deed of 24th July 1923, was a benami transaction. In ordinary cases of benami the onus is upon the party who asserts benami, and in the absence of such evidence the Court is bound to presume that title passed to the purchaser under the deed.

21. The only evidence given is evidence of the fact that the collection of the toll in respect of the hat which is held in this property was made by Pattilal and not by Jaikishun. The first witness on the point is the Patwari Singheshwar Lal. He is the Patwari of Sharfuddinpur and not of Madhopur with which we are here concerned. He states in cross-examination that his maliks have no share in Madhopur. He says that three or four years before the date of his deposition he made certain collections at the market at Madhopur.

22. The collections that he refers to could not have been the collections of rents from the shopkeepers or stall-holders in the hat at Madhopur; it must relate to the collection of rents from tenants of his own village Sharfuddinpur who might have gone to the Hut at Madhopur. If that is so, then he seems to be a mere chance witness. He says that the landlords, including Pattilal, divided the proceeds in his presence. If that is so, then much better evidence could have been produced by the receiver in support of his case. He has called one Sheosagar Misser who is the Tahsildar of Madhopur. This tahsildar could have produced his papers to show that the collections were divided and Pattilal took his one-anna share thereof. He says in his cross-examination that he writes collection papers: but he was never asked to produce them.

23. The next witness, Lekia Rout, is a cosharer in Madhopur. He no doubt says that Patti has one-anna share; but in cross-examination he deposes that he has no paper to prove the present possession of Pattilal. The last witness Baijnath Prasad, who is a witness to the deed of sale, says that it was a farzi transaction and that the executants said that they were about to be sued by the creditors. It is unlikely that a person who enters into a benami transaction should go about proclaiming the fact to everybody.

24. I am therefore of opinion that the evidence adduced in this case is not sufficient to prove that the transaction was a benami transaction, or that Pattilal, the insolvent, continued in possession thereof. It is said that there was no reason why Jaikishun should stand surety for him. It appears that they were friends, and that subsequently they have become relations by marriage. There is the further fact that ultimately the property was mortgaged in order to pay off the debts of the insolvents; but these are circumstances which merely raise a suspicion of benami and they do not amount to legal evidence of the fact of benami. I would therefore hold that in the case of this property (No. 8 of the receivers schedule) the view taken by the learned District Judge is not correct. I hold that it has not been established that the deed of sale of 24th July 1923, was a benami transaction. I would set aside the order of the District Judge and decree Appeal No. 193 with costs.

James, J.

25. I agree.