Judgment :- VEERASWAMI 1. This is an appeal by the first respondent from a judgment of Palaniswamy, J., who held on an application by the Official Assignee that, having regard to the state of evidence as finally recorded, the only finding possible was that the first respondent wife and the second respondent husband who was adjudicated as insolvent by an order dated 2nd December, 1964, were equally entitled to the site and the building bearing No. 3/2A College Road, Nungambakkam, Madras. The site was purchased on 5th July, 1948, admittedly in the names of both those respondents. The consideration therefor was a sum of Rs. 21,595-11-8. In 1952, a building was constructed at a cost of about Rs. 65,000. Rs. 25,000/- out of Rs. 65,000/- was raised by a mortgage executed by both of them. Evidence was adduced on both sides to support the exclusive claim to the property made by each of them, the 1st respondent and the Official Assignee. Ultimately, on an analysis of the entire evidence, it turned out that neither the appellant, who was the first respondent, nor the second respondent who was the insolvent represented by the Official Assignee, could establish that one or the other contributed any particular sum either for the purchase of the site or for the construction of the building. It was, in those circumstances, and particularly having regard to the recitals in the mortgage deed, Palaniswamy, J., recorded a finding that the property belonged to the appellant and the insolvent in equal halves. 2. Mr. Sivaramakrishnaiah, who appears for the appellant-wife contends that in the absence of an agreement between the parties, the learned Judge had no jurisdiction to proceed with the application under S. 7 of the Presidency Towns Insolvency Act. He relies on the proviso and argues that the mere fact that the appellant had obeyed the summons of the official Assignee, appeared before him and placed materials before him, would not take the application of the Official Assignee out of the scope of the proviso to S. 7. We are unable to appreciate this contention. It was quite open to the appellant to have refused to appear before the Official Assignee and place any material to his advantage. The proviso contemplates the court and not the Official Assignee. We are unable to appreciate this contention. It was quite open to the appellant to have refused to appear before the Official Assignee and place any material to his advantage. The proviso contemplates the court and not the Official Assignee. The object of S. 36 mentioned by the proviso to S. 7, is to enable the Official Assignee to gather materials in support of his claim. In such a case the procedure under S. 36 will have to be followed. But, in the instant case, without following that procedure, the Official Assignee had already obtained such material as he could from the appellant. In such circumstances, there was no need for the Official Assignee to resort to S. 36 at all. That being the case, we are of opinion that there was hardly any occasion for applying the proviso to S. 7 so that the Official Assignee was free to use the material which he had already obtained by summoning the appellant. 3. Our attention was invited to Lakshmi v. Official Assignee, Madras I.L.R. 1950 Mad. 895; 63 L.W. 115 (F.B.), but in view of what we have said just now, the citation makes no difference to our view. 4. We have been taken through parts of the evidence on record. At the stage of the appeal, it cannot be disposed of merely on the basis of burden of proof. In fact, it will have no importance when the entire evidence is before us. We agree with Palaniswamy, J., that the evidence, as a whole, does not pinpoint the source of purchase money for the site. On the one hand, at the time the site was purchased, the insolvent was affluent and was earning. At the same time, his wife, the appellant, was also not impecunious and she too appears to have had some money with her as evident from her issuing cheques and purchasing property in Ootcamund. In such an event, as there is no evidence of a common fund out of which the site could have been purchased and in the absence of evidence also that one or the other exclusively contributed any part of the purchase money, the second paragraph of S. 45 of the Transfer of Property Act will be applicable. More so, when the purchase was expressly stated to be in the joint names of both the appellant and the insolvent. More so, when the purchase was expressly stated to be in the joint names of both the appellant and the insolvent. There is a presumption when such a purchase is made and there is no evidence one way or the other as to the source of the purchase money, that the property, purchased belonged in common to both. That is the contention pressed by Mr. Parasaran for the Official assignee, which we accept as valid. So far as the building is concerned, though Mr. Parasaran has vehemently contended before us that the same yardstick should be applied to it as well, we have these facts which lead us to a different conclusion. There is no question of joint purchase of the building. It was constructed in 1952 apparently out of the money borrowed by both the appellant and her husband on a mortgate executed by both of them. The money so borrowed amounted to Rs. 25,000/-. We have already mentioned that the building cost eventually Rs. 65,000/-. There is no evidence to show as to who contributed the balance of Rs. 40,000/-. We cannot assume that it was contributed or any part of it was contributed by the insolvent. The facts are not such as to warrant any presumption in support of it in favour of one or the other. But, so far as the mortgage is concerned, the recitals in the mortgage deed showed that the executants treated themselves as joint owners of the property and of the building and borrowed Rs. 25,000/-. We are inclined to think that, in view of this recital, one half or this sum of Rs. 25,000/- should be taken to have come from the appellant and the other half from her husband. Though it is not exactly equal to the consideration in respect of the joint sale deed, it is approximately nearing it and we think we will be justified in holding that only a sum of Rs. 25,000/-raised by mortgage and expended on the construction of the building can be treated as a common fund belonging to the appellant and her husband. So far as the sum of Rs. 40,000/- is concerned, in the absence of evidence, we have got to hold that the Official Assignee has not established that any part of it belonged to the insolvent. 5. So far as the sum of Rs. 40,000/- is concerned, in the absence of evidence, we have got to hold that the Official Assignee has not established that any part of it belonged to the insolvent. 5. We note that, though the Official Assignee claimed the entirety of the property as exclusively belonging to the insolvent and succeeded only to the extent of a half, he has not filed any appeal to the extent of his failure to establish the total claim. In view of this, we think that the ends of justice will be met by holding that one half of the site belonged to the appellant, and one half of the mortgage money, namely Rs. 12,500/- also belonged to the appellant, with which part or the cost of the building was met. This will work out to a proportion of 5/7 as belonging to the appellant and 2/7 as belonging to the insolvent. This proportion will be applied to one half of the entire appeal. Should there be any difficulty in making a division on that basis, either the appellant may pay the difference and get the property, or the property may be sold under the direction of the court sitting in insolvency and the proceeds may be divided according to that proportion. 6. The appeal is accordingly partly allowed with proportionate costs.