Judgement

Appeal (No. 6 of 1930) from a decree of the High Court (April 11, 1929) reversing a decree of the District Judge at Hanthawaddy (September 17, 1928).

The appeal arose in proceedings under the Provincial Insolvency Act, 1920, in the insolvencies of Maung Ba Than and Ma Ngwe Tin, his wife.

The respondents were included in the schedule of debts framed under s. 33 of the Act in respect of debts for Rs.30,000 under a mortgage deed of July 7, 1927, Rs. 10,000 under a promissory note of the same date, and a further Rs. 10,000 upon a promissory note of October 16, 1927.

The Official Receiver applied to the District Court under s. 53 of the Act to annul the mortgage, alleging that it was without genuine consideration and fraudulently created.

The petitioning creditor also applied challenging all three debts upon the same ground, but the application as to the promissory note of October 16, 1927, was not proceeded with.

The facts appearing from the evidence, and the terms of s. 53 of the Act, are stated in the judgment.

The evidence was heard in the District Court at various dates between June 16 and September 12, 1928, partly by one District Judge and partly by his successor, who delivered judgment disallowing the claim to prove in respect of the Rs.30,000 debt on the mortgage and the Rs. 10,000 debt on the promissory note. On appeal the High Court (Heald and Mya Bu JJ.) reversed the decision. Both Courts had treated the onus of proof as being on the present respondent; and both had rejected a contention that the mortgage deed was not duly presented for registration and was therefore inadmissible in evidence.

1930. Nov. 24, 25. Hon. Geoffrey Lawrence K.C. and R. W. Leach for the appellant. The evidence called by the respondents contained so many inconsistencies that the District Judge, who saw all the witnesses though he did not hear the whole case, was justified in disbelieving the whole story as to the alleged transaction of July 7, 1927. The grounds upon which the High Court reversed his decision were inadequate. The respondents have throughout accepted the burden of proof and cannot now contend that it was not upon them. Further, the mortgage was not duly registered. The endorsement stated that it was presented by the mortgagor for the mortgagee. In the absence of a power-of-attorney authenticated under s. 33 of the Registration Act the registration was invalid Jambu Parshad v. Muhammad Aftab Ali Khan. (( 1914) L. R. 421. A. 22.)

Dunne K.C. and A. M. Talbot for the respondents. Upon the evidence, and apart from the question of the onus of proof, the decision of the High Court was right. The respondents agent swore to the advances and produced the books of the firm which were open to investigation for a period of over two months while he was still under cross-examination; but his evidence was unshaken and no error was shown in the books. No ground was suggested for suspecting collusion with the insolvents. But upon the true construction of s. 53 of the Provincial Insolvency Act, 1920, the onus of proving that the mortgage was not made in good faith and for valuable consideration was upon the Official Receiver ; it is not too late to rely upon that contention.

[Lord Taken referred to Official Assignee of Madras v. Sambanda Mudaliar. (( 1920) I. L. R. 43 M. 739.)]

Sect. 53 is in the same terms, so far as the material words are concerned, as s. 50 of the Bankruptcy Ordinance of the Straits Settlements, and in Official Assignee v. Khoo Saw Chow (Since reported [ 1931] A. C. 67.) the Board recently held, affirming the view in the Straits Settlements, that the onus was upon the Official Assignee.

The registration was valid. Sect. 58 of the Registration Act does not require that the endorsement shall state who presented the document; the words relied on were mere surplusage. Sect. 60 only makes the endorsement evidence of the facts stated in it, and the registering officer stated in his evidence in these proceedings that the prese