S.N.DWIVEDI,J. - (1.) JUDGEMENT on his own behalf and for RAJESHWARI PRASAD, J) :- We are required to answer this question: "Whether, in the circumstances of this case, Section 47 of the Encumbered Estates Act bars the entertainment of the objection by the creditor relating to ownership of the property in dispute."
(2.) LET us first give the salient facts. One Jai Narain had a big estate; he had also considerable liabilities. In 1921 he gifted, inter alia, some of his zamindari properties (the property in dispute included) to his wife, Chimma Kunwar. She was made the absolute owner of those properties. In 1936 she made an application under Sec. 4 of the Encumbered Estates Act (hereinafter called the Act). In her written statement under Section 8 of the Act she mentioned the property in dispute in this appeal as her own. No objection was filed. In the list of properties sent to the Collector under Section 19 (2), the Special Judge included this property. The Collector auction-sold it. Sri Gopal Gaushala Society (hereinafter called the Society) purchased it. The sons and grandsons of Jai Narain also made an application under Section 4. In their written statement under Section 8, they did not show the properties already gifted by Jai Narain in favour of Chimma Kunwar. So the disputed property also was not shown therein. In his written statement under Section 9, Dwarika Prasad, representing the Trust which held a decree for Rs. 52,000 against Jai Narain, showed the disputed property as liable to attachment, sale and mortgage in satisfaction of the debts of the applicants. The Trusts case was that Jai Narains gift was fictitious, it was never acted upon and it was intended to defraud his creditors.
(3.) THE Society lodged a claim. It was said that the Society was the owner by virtue of the auction-purchase and the gift was not fictitious nor fraudulent. It was also claimed that Section 47 of the Act barred the Special Judge from going behind its title founded on the auction sale by the Collector under the Act.;