THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.M.S.A.No. 41 of 2010 JUDGMENT: The appeal is filed against the order dated 30.07.2010 in A.S.No.45 of 2007 on the file of the Principal District Judge, Kadapa in setting aside the order dated 13.02.2007 in I.P.No.12 of 2004 on the file of the Senior Civil Judge, Kadapa. The parties are referred hereinafter as in the lower Court. An Insolvency Petition has been filed claiming that the petitioner is an agricultural labourer and there was a partition of agricultural properties about 15 years back and he got Rs.75,000/- towards his share and he was cultivating the ands on lease and he incurred the debts and some of the debtors, who are the 1st respondent and others obtained decree and are executing the same. Therefore, the petitioner has become incapable of discharging the debts as his liabilities are more than the assets. The respondents 2 to 5 remained ex parte and the 1st respondent, who is the appellant herein, denying the partition contended that the petitioner has not shown all the properties, which are to an extent of Ac.3-72 cents, Ac.0-19 cents and Ac.3-83 cents in Sy.Nos.147, 157 and 164 at Gunakanapalli village of Lingala Mandal and the petitioner was sent to civil prison and suppressed the legal facts and the application is not bona fide. After recording the evidence of the petitioner and the respondents, the Insolvency Court has dismissed the application and aggrieved by that A.S.No.45 of 2007 was filed and the Principal District Judge, Kadapa allowed the appeal and declared the petitioner as an insolvent. Consequently, the Second Appeal is filed questioning the legality of the order. The point for consideration is whether the order of the lower appellate Court in setting aside the order of the Insolvency Court as there are no bona fides and suppressed the facts in misappreciation of the evidence is tenable? POINT: Generally, the debtor in insolvency petition will be considered leniently by the Courts and the bona fides will not be doubted unless there is some material to prove the same. It is the case of the petitioner that he has partitioned his properties and he has got a share of Rs.75,000/- and thereafter started the business. The lower Court did not accept this fact and the burden was on the petitioner to prove the same. Since the said fact has not been established and relying upon the evidence of the respondents dismissed the Insolvency Petition. However, the lower appellate Court in para No.6 has considered the legal position about the satisfaction of the Court to declare the debtor as an insolvent if the liabilities are proved. The finding of the learned Principal District Judge, Kadapa in para No.8 is as follows: 8. The petitioner contended that he received cash of Rs.75,000/- and 10 tolas of gold in lieu of the landed property in the partition with his younger brother. The first respondent on the other hand contended that the petitioner received immovable property in the partition of the petitioner with his younger brother. Where the first respondent asserted that the petitioner possessed properties, it is for the first respondent to establish that the petitioner possessed immovable properties. Evidently, the learned District Judge has misapplied the principles of burden of proof when the property is said to be owned by the petitioner and he claims to have relinquished his share by taking some cash, the burden is definitely on him and it is not for the other side to prove the factum of partition or owning of the properties, which are admitted by the petitioner. The reasoning in para No.9 also is untenable. It is not a case of asking negative evidence to be produced by the petitioner but it is a case where the petitioner has come to the Court with positive assertion that he had alienated the properties and that there was a partition and he has got Rs.75,000/- to his share. In such circumstances, it is for him to prove that a partition has been effected and he got only cash towards his share. Therefore, in view of the above circumstances, the reasoning given by the learned District Judge disturbing the finding of the Insolvency Court is unwarranted and it is against the principles of law and, therefore, the order of the lower appellate Court suffers from infirmity and is liable to be set aside. Accordingly, the appeal is allowed and the matter is remanded to the Insolvency Court for giving an opportunity to the petitioner to adduce evidence about the partition pleaded by him and given up his rights in the joint family properties. If the petitioners fails to prove the same then, in view of the judgment reported in Dasari Srihari Rao v. Talluri Harinadha Babu[1], the petition has to be dismissed for want of bona fides. No costs. ________________________ N.R.L.NAGESWARA RAO, J 29-10-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.M.S.A.No. 41 of 2010 DATE: 29-10-2011 MR [1] 2002 (3) ALT 484 (D.B.)