The burden of proof lies on the insolvent to show that the circumstances leading to his assets not reaching the required percentage were beyond his control, as per S.42(1)(a), Provincial Insolvency Act.

Grille, J C—The non-applicant, a debtor, was granted a discharge in the insolvency Court. In an appeal against that order in the Court of the District Judge the creditors contended that the insolvent should have satisfied the Court that the fact that his assets were not of a value equal to eight annas in the rupee on the amount of his unsecured liabilities had arisen from circumstances for which he could not justly be held responsible. This is a plea under S.42(1)(a), Provincial Insolvency Act. The learned District Judge held that as the appellants before him did not contest the absolute discharge on this ground in the insolvency Court, this point could not be raised in appeal, and the appeal was dismissed. Against this order a creditor applies in revision. In Civil Revn. No. 307 of 1934 Bakaram v. Zibal, Civil Revn. No. 307 of 1934, I pointed out that as the directions in S.42, Insolvency Act were imperative, the Courts should be particularly careful in respect of Cl. (a) of sub-S. (1) in coming to a definite finding in each particular circumstance. The provisions of that section air imperative and it is the duty of the Court before passing a final order of discharge to satisfy itself that the insolvent whose assets are not of a value equal to eight annas in the rupee on the amount of his unsecured liabilities, proves that it is not due to his fault that his assets do not reach that percentage. The burden of proof then is on the insolvent. In the event of failure on the part of the insolvent to satisfy the Court in this respect, the Insolvency Court has no jurisdiction to pass an order of discharge; neither can it do so in the absence of any evidence on the record. This principle has been repeatedly enunciated : Gopiram v. Biraj Mohan, 1929 123 IndCas 748 P.N. Dutt v. J.H. Blades, 1928 115 IndCas 585 Brij Mohan v. Sarju, 1931 AIR(Oudh) 356.

2. On behalf of the non-applicant the case of Suraj Pal v. Shib Lal, 1929 119 IndCas 16 has been cited, where it was held that if it was not shown that the state of things, namely that the assets, were less than eight annas in the rupee, had been brought about by any fraudulent act on the part of the insolvent or by circumstances over which he had control, S.42(1)(a) does not stand in the way of his discharge. It is not clear whether any evidence was taken or any pleading by the insolvent made on the point in that case, but it is to be noted that in an other case Santi Lal v. Raj Narain, 1929 119 IndCas 4-the same Court decided five days later by a Bench of which one of the Judges was a party to the decision in Suraj Pal v. Shib Lal, 1929 119 IndCas 16, that when the assets did not amount to eight annas in the rupee, the onus was on the debtor to show that the reason for this state of affairs had arisen from circumstances for which he could not be justly held responsible and that where no evidence to discharge this burden was given, the Court had no jurisdiction to pass an order of discharge. This is not a question, as the learned District Judge, considers, of assertion by the creditors opposing an application for discharge. There is a statutory obligation on the debtor and unless he discharges it, no order of discharge under S.41, Provincial Insolvency Act can be passed. The order of discharge is accordingly set aside and the case is remanded to the insolvency Court for disposal according to law. The debtor will be given an opportunity of satisfying the Court, if he can, that he is entitled to an unconditional discharge. In the circumstances. I make no order as to costs.