# may have been procured by threats or may be wholly untrue and collusive

- **Citation:** C.L. No. 67/R
- **Court:** Allahabad High Court
- **Decided:** 1947-10-04
- **Case number:** C.L. No. 67/R
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/may-have-been-procured-by-threats-or-may-be-wholly-untrue-and-collusive-163249
- **Pages:** 2

## Text

202
X.
A confession by a wife, contained as it usually is in a letter addressed to the
husband, requires to be considered with care. Proof of handwriting must, of
course, be given and, if misconduct is ought to be proved on the basis of the letter
alone, great caution should be exercised in accepting it, especially if it was written
in the presence of the husband or under his roof. In a case of this kind the letter
may have been procured by threats or may be wholly untrue and collusive.
Prudence suggests that, just as in number VI, surrounding circumstances should
carefully be considered.
XI.
The allegation that an Englishman has abandoned his domicile of origin and has
definitely and finally elected to adopt an Indian domicile is one which should be
strictly proved. The questions which will suggest themselves are, what relatives
has he in England, what property, what ―prospects and, on the other hand, what
are the inducement which have led him to spend the rest of his life in India and
when he formed that resolution. The real truth may be that this resolution was
formed when first he learnt about the domicile difficulty at the institution of the
suit and will be abandoned immediately on the termination of the suit.
It may be added that the presiding judge will find it of great service in his efforts
to probe the allegation made to adopt a skeptical attitude towards the evidence of either
side, and to follow it up with questions of his own until he is convinced of the truth of
one or the other.
G.L. No. 28/VIII h-6-1 dated 4th October, 1947

An extract from the High Court judgment in matrimonial reference no. 4 of 1949
is reproduced below for the guidance of subordinate courts:
 ―We have read the judgment of the learned District Judge and we are satisfied
upon the evidence that the finding at which he has arrived is correct. In these
circumstances we shall be prepared to confirm his decree were there in fact a
decree which did dissolve the marriage of the petitioner and the respondent. The
operative part of the decree in this case is in the following terms:

 ̳It is ordered that a decree nisi dissolving the petitioner's marriage with the
respondent be passed.'
―Apart from the fact that the decree made by a District Judge under section 14 of
the Act is not a decree nisi which can only be passed by the High Court under
section 16- that part of the decree to which we have referred does not purport to
dissolve the marriage at all, for instead of declaring the marriage dissolved it
merely say that a decree having that effect will, presumably at some future date, be
passed. This Court has on a number of occasions pointed out the necessity of the
decree being prepared strictly in accordance with the provisions of section 14, for
it is the decree of the District Court, and not the judgment of the learned District
Judge, which comes before this Court for confirmation.‖
203
In the circumstance we amend the decree of the lower court by substituting for the
sentence, which is quoted above the following:
―It is ordered and declared that the marriage between the petitioner and the
respondent is dissolved this decree being subject to confirmation by the High
Court of Judicature at Allahabad.‖
(xiv) Insolvency proceedings and company matters
G.L. No. 713/67-7 dated 21st March, 1917
The attention of District Judges is called to the importance, in insolvency
proceedings, of settling the schedule of creditors at as early a stage as possible.
C.L. No. 67/R dated 27th September, 1949
1.
No hard and fast definition of the term ―gross assets‖ occurring in Judicial (Civil)
Department notification no. 6240/VII-540-46, dated 23 November, 1950, reproduced as
Appendix 17(ii) of General Rules (Civil), 1957 can be given, as the presiding officers
will always be in the best position to adjudge the amount of gross assets according to the
circumstances of each case. Generally speaking ―gross assets realized by the Official
Receiver‖ will be the total realization made by him from sale of the property- movable
and immovable-belonging to the insolvent. If any property has been wrongly attached
and has to be released or having been sold the money has to be refunded, it would not be
a realization of the assets of the insolvent and should not be considered to form part of
the gross assets realised by the Official Receiver. Where at the instance of the creditors
or informants, the Official Receiver attaches any property, which is adjudged not to
belong to the insolvent, he cannot be allowed any remuneration on the value of that
property either out of the insolvent's estate or from the property itself. The Official
receiver may, however, make an arrangement with the creditors or informants, with the
sanction of the Insolvency Judge, for reimbursement of the expenses incurred by him and
for meeting his fees in such cases, the term ―gross assets‖ does not also include monies
not belonging to the insolvent, e.g., moneys deposited with the Official Receiver as
security or in payment of costs of litigation, or amounts of dividends returned undelivered
and re-deposited in the insolvents funds.
2.
Clause (2) of the Government notification mentioned above is general and gives
full discretion to the Insolvency Court in allowing additional remuneration to the Official
Receiver where the order of adjudication is annulled or the insolvent makes a settlement
with his creditors out of court. But the discretion so exercised should not be arbitrary.
The presiding officer will have in such cases, before awarding remuneration, to form an
approximate idea of the time spent and the labour put in by the Official Receiver over the
case and the amount of gross assets which could have been realized by him had the
proceeding not come to an end by the annulment of the order of adjudication or by a
settlement out of court. The amount of gross assets which could have been realized by the
Official Receiver will depend upon the facts of each case and will have to be determined
by the court on consideration of all the factors including the debts shown in the
application, the debts claimed by the creditors, the amount of scheduled debts and the
assets, alleged or established, of the insolvent.