The burden of proof lies on the Official Receiver to establish property ownership, and claims exceeding the scope of Section 68 appeals can be pursued under Section 4.

Walsh, J.

1. The appellant is a creditor of an insolvent. The Official Receiver brought the property of the insolvent to sale and the insolvents wife (respondent l) claimed a certain share in the house. The documents relating to this house show that the insolvents father Krishna Chetty sold it under Ex. P on 26th February 1912 to one Tirumalammal, his sister. Krishna Chetty had three sons one of whom was the insolvent. The others were Ramaswamy Chetty and Kandaswami Chetty. These latter two sons distinctly state in the sale-deed that the house was the self-acquired property of their father in which they had been jointly living and which they had been enjoying. On 29th November 1913 there was a deed of partition, Ex. E, between the father Krishna Chetty and the two brothers of the insolvent Ramaswami Chetty and Kandaswami Chetty. The insolvent does not appear there. There is a statement in the deed that the persons dividing possess no immovable property. On the same day Tirumalammal reconveyed under Ex. G the house to Krishna Chetty and on 9th June 1916 the latter sold a portion of it under Ex. H to his son Kandaswami Chetty, who under Ex. B on 22nd March 1917 mortgaged his portion to Tirumalammal usufructuarily and by Ex. A he sold it to the insolvents wife (respondent l) to clear off Tirumalammals mortgage.

2. The father Krishna Chetty having died, Kandasawmi Chetty succeeded to another portion of the house which he sold under Ex. C on 27th October 1919 to the insolvents wife. When the insolvents wife made her claim, the Official Receiver proceeded to determine the same and her claim was allowed by him. On appeal, preferred under Section 68, Insolvency Act, the matter was by consent of parties remanded to the Official Receiver who on further inquiry found in favour of the insolvents possession. His order was dated 20th April 1927. On 17th July 1927 the insolvents wife (respondent l) put in a petition under Section 4 and on this petition her claim was admitted by the learned District Munsif and on appeal his order was confirmed by the learned District Judge. Against this order this second appeal is preferred. The question of fact involved in the case was whether a portion of the house sold to the insolvents wife under Exs. A and C by Kandaswami Chetty belonged to him or to the insolvent. The allegation for the insolvents wife was that the insolvent had been separated from the family before the partition of his brothers with his father under Ex. E, that the house had been built by Krishna Chetty, the insolvents father, with his own funds and that the insolvents wife had purchased it with funds provided by her mother. In the trial before the learned District Munsif respondent 1(insolvents wife) called certain witnesses and filed certain documents but the appellant (the insolvents creditor) contented himself with marking certain depositions given before the Official Receiver in his inquiry. It is sought to attack the finding of fact in second appeal by saying that both the Courts ignored the evidence (Exs. 4 to 8) given for the appellant and said that he had adduced no evidence. That is not however correct. What the District Munsif says is:

There is no evidence on behalf of the counter-petitioner to show that the insolvent advanced money to the petitioner to purchase under Exs. A and C.

3. This was the counter-petitioners case and it is correct that the counter-petitioner did not adduce any evidence on this point. The statement relied on in the order of the District Judge is as follows:

As the learned District Munsif has properly pointed out, the burden lay upon the Official Receiver to prove that the property to which the respondent laid claim was the property of the insolvent. He did not let in any evidence to prove that.

4. "He" here evidently refers to the Official Receiver. The statement is perfectly correct and it is a matter of some importance. The Official Receiver had himself come to the conclusion that the property be