P. Thirumal Nadar vs Pichai Ammal and Another

Rajamannar, J.—This is an appeal under Clause 15 of the Letters Patent against the judgment of Chandrasekhara Aiyar, J., dismissing an

appeal from the Additional Judge of the City Civil Court at Madras. The suit was instituted by the first respondent herein for partition of the

properties in suit consisting of two items of Immovable property and for delivery to her of one share thereof, the other share to be delivered to the

second defendant. The plaintiff and the second defendant are the daughters of the first defendant by his first wife, one Marimuthu Ammal, who died

on the 19th February, 1943. The suit was brought on the basis that the two items of Immovable property belonged absolutely to Marimuthu

Ammal, and on her death, devolved in equal shares on her two daughters, the plaintiff and the second defendant. The first defendant, the father,

contested the suit and claimed that Marimuthu Ammal, his deceased wife, had no title to either of the properties.

The case for the plaintiff was that in regard to the first item of property, the first defendant conveyed it absolutely to her mother by a deed of

settlement dated 22nd September, 1923. The case of the first defendant was that the settlement deed was executed nominally and was not

intended to be operative. The second item of property was purchased on the 4th January, 1924, for a consideration of Rs. 800 and the sale deed

was taken in favour of the plaintiff''s mother, Marimuthu Ammal. The sum of Rs. 800 was made up of Rs. 260 paid in cash at the time of the

registration of the sale deed and the balance was the amount due to Marimuthu as the mortgagee under the deed of mortgage dated 14th

September, 1923 (Ex. D-17) which had been executed in her favour by the vendor to secure a sum of Rs. 500. The case of the first defendant in

regard to this item was that the consideration was provided by him and it was not intended that the wife, Marimuthu, should have any title to the

property. The learned Additional Judge of the City Civil Court, after a consideration of both oral and documentary evidence, held that Marimuthu,

the mother of the plaintiff and the second defendant, was absolutely entitled to both the properties. He held that the settlement deed in respect of

item 1 and the mortgage deed and the sale deed in respect of item 2 were not benami transactions but transactions intended to convey beneficial

interest to Marimuthu. The learned Judge came to this conclusion in view of the evidence adduced in the case that the first defendant was at the

time, of the transactions keeping a concubine and the transactions were brought about in favour of the wife at the suggestion of common friends,

because it was apprehended that the first defendant might squander away the properties of the concubine. The evidence pointed to the conclusion

that the settlement deed and the mortgage taken in the name of the first defendant''s wife, both of which took place at a short interval, were

intended to make a provision for Marimuthu, the first defendant''s wife. The learned Judge of the City Civil Court, therefore, granted a decree in

favour of the plaintiff for a half share in the two items of property. There was an appeal to this Court by the first defendant and the learned Judge,

Chandrasekhara Aiyar, J., agreed with the trial Judge in the findings in respect of both items 1 and 2. He confirmed the decree of the lower Court

and dismissed the appeal. The first defendant has filed an appeal against the decree and judgment of Chandrasekhara Aiyar, J., but has confined

his claim to item 2 only. The Letters Patent Appeal is concerned only with the title to item 2.

Learned Counsel for the appellant relied upon the concurrent findings of the learned trial Judge and the learned Judge of this Court that the

consideration for the mortgage as well as the sale in respect of item 2 was found by the first defendant. He contended that as there was no

presumption of advancement in this country when property was purchased by a husband with his own funds in the name of his wife, it followed that

the first defendant was entitled to the property so purchased. He relied for his contention on three decisions of the Judicial Committee, Lakshmiah

Chetti v. Kothandarama Pillai (1925) 49 M.L.J. 109 : L.R. 52 IndAp 286 : ILR 48 Mad. 605 (P.C.), Guram Ditta v. Ram Ditto (1928) 55

M.L.J. 651 : 55 I.A. 235 : ILR 55 Cal. 944 (P.C.) and. Shambhu Nath Shivpuri v. Prishka Nath (1944) 2 M.L.J. 348. It is not necessary to

make a detailed reference to the latter two cases which dealt with a deposit by a Hindu of money in a bank in the joint names of himself and his

wife, and it is sufficient to refer to the case of Lakshmiah Chetti v. Kothandarama Pillai (1925) 49 M.L.J. 109 : L.R. 52 IndAp 286 : ILR 48 Mad.

605 (P.C.), which was a case where the husband purchased the property in the name of his wife with his own money. The law on the point was

thus laid down at page 608 of the report by Sir John Edge:

There can be no doubt that a purchase in India by a native of India of property in India in the name of his wife unexplained by other proved or

admitted facts is to be regarded as a benami transaction by which the beneficial interest in the property is in the husband, although the ostensible

title is in the wife.

It is clear from the rule thus enunciated that the fact that the consideration for a purchase has been found by the husband is not conclusive against

the wife in whose name the property had been purchased. It is only when the purchase is "" un-explained by other proved or admitted facts "" that

the conclusion should follow that the transaction is benami for the husband. In this case, the learned Judge who tried the case as well as the learned

Judge of this Court who heard the appeal have found facts admitted and proved which gave an adequate explanation for the transaction in the

name of the wife. Chandrasekhara Aiyar, J., agreeing with the Court below, held on a consideration of the surrounding circumstances and the

probable causes likely to have operated on the minds of the parties to bring about the transaction, that the mortgage and the sale were taken in the

name of the wife, with the object that the property should belong to her and that it should not be within the reach of the first defendant, as it was

feared that he might dissipate it. I have no hesitation in agreeing with the learned Judge.

It was contended by learned Counsel for the appellant that the plaintiff was not entitled to any relief in respect of item 2 because of the pleading

in paragraph 4 of the plaint that item 2 was purchased by her mother with her own moneys. We are not impressed with this contention because this

averment is followed by the assertion that the plaintiff''s mother was in sole and absolute ownership and possession of the said properties. Further,

the evidence on which the learned trial Judge came to the conclusion that the transaction was not benami was in great part evidence adduced on

behalf of the first defendant himself. I do not think that the first defendant was prejudiced in any way in the conduct of his case because of the

defect in the allegation in the plaint.

As I am in complete agreement with the conclusions of the learned trial Judge as well as the learned Judge of this Court on appeal, it is not

necessary to deal at length with the evidence in the case. It suffices to mention that though Marimuthu Ammal lived for a period of nearly 20 years

after the transactions in respect of items 1 and 2, there was no attempt on the part of the first defendant to obtain from her any acknowledgment of

the title of the first defendant, if really the case of the first defendant was bona fide. On the other hand, nearly ten years after the date of the

transactions, in a mortgage executed on the 12th April, 1933, Ex. D-7, to which the first defendant was also a party, he subscribes to a statement

that his wife, Marimuthu, was absolutely entitled to both items 1 and 2. The evidence of the common friends who mediated between the husband

and the wife also supports the conclusion arrived at by the trial Judge. D.W. 2, for instance, says that:

there were always quarrels beween him (first defendant) and his wife and as we thought he would squander away his property, we brought about

this settlement deed.

D.W. 3 said that:

as he was keeping a concubine we made him settle the property on his wife.

There are no merits in this appeal which fails and is dismissed with the costs of the first respondent.

Frederick William Gentle, C.J.

I agree and have but a few words to add. It was common ground that the object of placing the properties in the name of the wife was to prevent

its dissipation or the proceeds of sale from being dissipated upon the husband''s concubine. It was urged on behalf of the appellant that, effecting

the transaction nominally in the name of the wife, would safeguard the properties. Clearly, that would not be so, if the property remained that of the

husband; he could do whatever he liked with it. It could only be, when the interest and title in the property passed to the wife, that it was

safeguarded from dissipation either by the husband upon the concubine or by the concubine herself.