The burden of proof on the petitioning creditor to establish fraudulent preferences and the maintainability of a single application against members of a joint Hindu family for joint acts of insolvency.

Sadasiva Ayyar, J.

1. These two appeals have arisen out of an order of the District Judge, Guntur, adjudicating a father and two of his sons styled respondents Nos. 1, 2 and 3 as insolvents. The petitioner in insolvency was a creditor of the father and may also be treated, as the creditor of his three sons (respondents Nos. 2, 3 and 4) for the purpose of these appeals. He applied for adjudicating the father and his major sons the second and the third respondents as insolvents and did not pray that the minor fourth respondent should also be made an insolvent. He alleged in his petition vaguely "that the respondents" transferred their immoveable properties under six documents, Exhibits A to F, September and November 1918 to their relations and friends either nominally without consideration or with a view to fraudulently prefer the alienees who were their relations and friends and that therefore the "respondents" have committed acts of insolvency within the meaning of Clauses (b) and (c) of Section 4 of the Provincial Insolvency Act (III of 1907.) As he prayed only for respondents 1 to 3 to be adjudicated insolvents I shall take it that the above allegations against "respondents" refer to respondents 1 to 3 alone and that respondents 1 to 3 alone are alleged to have transferred their immoveable properties and thus committed acts of insolvency. The learned District Judge adjudicated the first three respondents to be insolvents accordingly. Appeal No. 96 is preferred by the fifth respondent who is one of the three alienees mentioned in the application. Respondents No. 3 and 4 are the two appellants in the other Appeal No. 138. It is admitted by the learned vakil for respondents 3 and 4 (in the lower Court) who are the appellants in 138, that the inclusion of the fourth respondent as one of the appellants in that appeal was a mistake as he was not adjudicated an insolvent by the District Court and (as I lave said before) even the applying creditor did not pray for the fourth respondent also being adjudicated an insolvent.

2. Section 5 of the Provincial Insolvency Act provides that an "Insolvency petition may be presented either by a creditor or by the debtor." Next Section 6 makes a distinction between the circumstances which entitles a debtor to present an application and the circumstances which entitle a creditor to make an application. Clause (3) of Section 6 details the conditions which enable the debtor to present the Insolvency petition, and Clause (4) the condition similarly entitling the creditor. Further, between the contents of the petitions respectively presented by a debtor or a creditor a distinction is made in Section 11, Clauses (1) and (2). After the presentation of the petition the Court is directed to fix a date for hearing the petition and on the date fixed for the hearing of the petition or on an adjourned date the Court is directed to require "proof" (that is, I take it from the person presenting the petition whether debtor or creditor) that three requisites have been complied with, requisite (a) being that the creditor or the debtor, as the case may be, is entitled to present the petition, and requisite (c) being that the debtor has committed the act of insolvency alleged against him. I take it that the requisite (c) refers only to the petition by a creditor and not to the petition by the debtor, for so far as the debtor is concerned, it has been held that the presentation of the petition itself by a debtor is an act of insolvency on his part and hence there is no meaning in requiring proof of requisite (c) in the case of an application made by the debtor himself.

3. The two reasons given by the District Judge for adjudicating three of the debtors as insolvents are (1) that the first respondent himself filed an independent petition to be declared an insolvent and (2) that he admitted he had alienated properties under six documents within three months before the date of the petition. I take it that the refe