JUDGMENT
1. This is an appeal from the judgment of Wallis J. declaring that the appellant has sufficient assets of his deceased father in his hands to meet the plaintiff-respondents claim and directing the appellant to pay to the respondent the amount of the appellate decree dated the 5th April 1906, viz., Rs. 9,308-5-2 plus interest on the principal sum of Rs. 7,358-12-0 from 22nd March 1905.
2. The appellant’s father died in February 1903, leaving the-appellant his only son, and the respondent obtained the above-mentioned decree against the appellant payable out of the assets in the latter’s hands of his deceased father. In execution of the decree certain properties in the defendant’s possession were attached and he alleged in those proceedings that he had no assets of his father. An enquiry was then held and the learned Judge found against him.
3. It appears to have been admitted by the appellant in an affidavit filed by him is certain proceedings that assets of his father to the extent of Rs. 4,000 came to his hands, and it was in fact never disputed that same assets of his father did come into the defendant’s possession. His contention seems to have been that, taking into account the amounts for which his father was liable to account as an executor of the will of his grand-uncle Girdhara Dass, dated 9th February 1885, under which the defendant was, in the circumstances which happened, the sole residuary devisee, and what the defendant has paid to other creditors of his father, there are no assets in his hands now available.
4. Now, once it is admitted or proved that the man sought to fee made liable under a decree obtained against a deceased person had come into possession of assets belonging to the estate of the deceased judgment-debtor, it is for him to satisfy the court as to the extent of the assets received by him and to account for them. This onus is based on the well-recognised rule of evidence that a fact which is peculiarly within the knowledge of a certain party must be proved by him – see Magalomi Gerudiah v. Narayana Rungiah (1881) I.L.R. 3 M. 359 at 365 et seq. – and in this case it is amply proved that the appellant, who is the sole heir of his father, was in possession of all books of account, documents and papers relating to the estate. But he contends that his father chose to mix up the trust fund with his own funds and therefore it is incumbent on his father’s creditors to make out that any portion of the assets in the appellant’s possession belonged to his father and not to the trust estate. Under these circumstances, a commissioner was appointed by the learned Judge to enquire into and report as to what assets of the appellant’s father Govardhana Dass came into the appellant’s possession.
[Their Lordships next proceeded to deal with the case on the merits and finally dismissed the appeal. – Ed.]
