Rasu Kavandar vs Ponnusamy Gounder and 2 others

D. Raju, J.—The above Second Appeal has been filed by the plaintiff who succeeded before the trial court but failed at the hands of the first

appellate court against the judgment and decree of the learned Subordinate Judge, Karur, dated 3.2.1983 in A.S. No. 120 of 1981 reversing the

judgment and decree of the learned District Munsif, Kulithalai dated 24.7.1981 in O.S. No. 968 of 1979. The plaintiff has filed the suit for a

declaration that the suit properties are the exclusive properties of the plaintiff and for a consequential relief of permanent injunction restraining the

defendants, their men and agents from in any manner interfering with the plaintiffs peaceful possession and enjoyment of the suit properties either by

entering or trespassing into the same or obstructing the plaintiffs harvest of the Kambu crops on the lands. The case of the plaintiff in the trial court

was that the plaintiff and defendants 1 and 2 are brothers, that the third defendant is the wife of the 2nd defendant, that the suit properties originally

belonged to one Sirumbayee, the mother of the plaintiff and defendants 1 and 2, and that the plaintiff was cultivating the lands under lease

arrangement from his mother and subsequently she executed a registered settlement deed dated 19.12.1978 in favour of the plaintiff in respect of

the suit properties out of natural love and affection towards him, and the plaintiff also accepted the same. The plaintiff claims to be in possession

and enjoyment of the properties and exclusively cultivating the same pursuant to the said settlement and the defendants 1 and 2 are divided

brothers of the plaintiff and they are in possession and enjoyment of the ancestral properties. The plaintiff and before him his mother are claimed to

have paid the kist and also discharged certain debts borrowed on the security of the suit properties, end the service connection for the electric

motor pump set installed in the well also stands in the name of Sirumbayee ammal, the mother, and since the defendants are threatening to meddle

with the harvest of Kambu crops said to have been raised by the plaintiff and are ripe for harvest the suit came to the filed for the relief referred to

above. The 1st defendant filed a written statement which was adopted by the other defendants contending that the suit properties do not belong to

Sirumbayee ammal, the Mother, that it is false to claim that the plaintiff was cultivating the suit properties as tenant under her, that Sirumbayee had

no title or possession over the suit properties to execute the alleged settlement deed as settlement in favour of the plaintiff, that the said settlement

cannot be true and valid and the father of the parties had ancestral properties and he was the Manager of the joint family, and he purchased the suit

properties from out of the income from the ancestral properties in the name of his Life Sirumbayee Ammal benami, and that she had no

independent means to purchase the suit properties, and the suit properties were blended along with the other joint family properties and were

treated and enjoyed as joint family properties and the income from all the properties was upt into common hotchpot and was enjoyed by all the

members of the family, and therefore all the members of the joint family were in joint possession and enjoyment of the same. The further claim on

behalf of the defendants was that there was a partition about 5 years prior to the suit in the family in which the members divided the family

properties into 1/5 equal shares, that the plaintiff, defendants 1 and 2, their brother named Karuppannan and another son through the second wife

of their father were each allotted one such share and since that time onwards they are in separate possession and enjoyment of their respective

shares. In that partition it was also claimed that the suit properties were divided into two halves and the northern half was allotted to the plaintiff

while the southern half was allotted to the 2nd defendant, and another item of property measuring 3 acres of land which was not the subject matter

of the suit which also was in the name of their mother Sirumbayee was also divided into two halves and the northern half was allotted to the share

of the 1st defendant while the southern half was allotted to Karuppannan their brother. It was also said to have been agreed at that time that the

said land has to be irrigated from the well in S.R. No. 100/2 in the name of their father, and Sirumbayee was given a buffalo worth Rs. 3,000/- and

also gold jewels weighing ten sovereigns, and that each son should measure 3 Kalams of Paddy and cash of Rs. 20/- per year to their mother

towards the maintenance and that she also agreed to receive the same. The 2nd defendant claimed to be in possession and enjoyment of the

southern half of the suit properties, and so the claim of the plaintiff of exclusive possession and enjoyment cannot be said to be correct. On that

view the defendants contended that the plaintiff was not entitled to any relief either for declaration or injunction.

On the above conflicting claims and averments made, the suit was tried and both the parties adduced oral and documentary evidence. The

plaintiff got examined as P.W. 1 and his mother Sirumbayee was examined as P.W. 2. Another brother who is not a party to the proceedings by

name Karuppannan has been examined as P.W. 3. On the side of the defendants the defendants 1 and 2 got examined as D.Ws. 1 and 2. The

purchase in favour of P.W. 2 was one jointly made along with another parson and P. W.3 is said to be the successor in interest of the joint owner

under Ex. A8 dated 30.8.1955. D.W. 4 is said to be purchaser of a portion of the property from the joint purchasers and D.W. 5 is said to be the

owner of the adjacent land and D.W. 6 is said to the attestor to the purchase under the sale deed dated 23.5.1955 marked or Ex. A-7 under

which the property has been purchased by P.W. 2 and one Kattayya Gounder. The learned trial Judge on considering the oral and documentary

evidence on record held that the plaintiffs mother P.W. 2 purchased the property from out of her own funds and it was her exclusive property.

Apart from the other materials adverted to by the learned trial Judge he also took into account the fact that the plaintiff''s father had two wives and

it was but natural that he wanted to provide the plaintiffs mother with some property. The trial court also believed the evidence of P.W. 2 and the

evidence tendered by P.W. 3, another son of P.W. 2 and the brother of the parties who stated in evidence that the suit property was the property

of him own mother P.W. 2 and it was not the subject matter of partition between himself and his brothers and it was a fact that P.W. 1 alone was

cultivating the same under an arrangement with his mother which property she later gave absolutely by means of the settlement to P.W. 1. P.W. 3

also appears to have deposed that the suit property was never treated and enjoyed as part of the family properties and that the court also noticed

the fact that there was no convincing reason for P.W. 3 to depose falsely. The learned trial Judge has chosen to reject the evidence of D.Ws. 1

and 2 for want of proper and definite particulars about the various claims made by them. The evidence of other witnesses on the defendants side

was found to be unbelievable and not convincing, for the acceptance of the learned trial Judge and taking into account the fact that patta for the

property also stood in the name of P.W. 2 and there were sufficient other materials on record to show that she alone was asserting her right in

enjoyment of the properties the suit came to be decreed and the claim projected by the defendants that the suit property was purchased benami in

the name of P.W. 2 was rejected.

Similarly the claim of division as projected by the defendants and the family partition was also rejected. Consequently, the suit came to be decreed.

Aggrieved, the defendants 1 to 3 filed an appeal before the Sub Court, Karur and the learned Subordinate Judge has chosen to reverse the

judgment and decree of the trial court and dismissed the suit. Hence the above Second Appeal.

Mr. AR.L. Sundaresan, learned counsel for the appellant contended that the first appellate court has committed a grave error in construing

properly the ratio of the several judgments of this court and the Apex Court, relied upon by it, and has chosen to ignore the vital and relevant

materials on record in disturbing the well merited judgment and decree of the trial court. Learned counsel further argued that the title of P.W. 2 to

the property has not been considered from its proper perspective with reference to the claim of parties and the law governing the same and the

well settled principles of law governing the normal presumption, that the properties standing in the name of a female member of the family belongs

to her and cannot be considered to be a property of the joint family. As a matter of fact, it is seen that at the time of admission of the Second

Appeal. This Court considered the issue relating to such normal presumption as laid down by some of Sic. (decisions) in respect of the properties

standing in the name of a female member the pronouncement does arise for consideration. On the above claims learned counsel for the appellant

would contend that the judgment of the first appellate court deserves to be set aside.

Per contra, Mr. Main Narayanan, learned counsel appearing for the respondents/defendants contended that the lower appellate court had

appreciated the evidence as it appealed to it on merits and has chosen to accept the case of the defendants after adverting to the relevant decisions

only and that therefore the conclusions arrived at by the first appellate court do not suffer from any infirmity warranting interference in this second

appeal.

I have considered the submissions of the learned counsel appearing on either side. Having regard to the question of law formulated by the

learned judge, who dealt with admission of this appeal and the nature of issues which requires to be adjudicated it would be proper to advert to

some of the decisions referred to by the first appellate court itself as also those to which my attention has been drawn at the time of hearing of the

appeal. In Jayadayal Poddar vs. Biba Hazba & others (A.I.R. 1974 SC 1711) the Apex Court was concerned with the principles or matters to be

considered in determining the benami nature of a transaction. While emphasizing the well settled position that the burden of proving that the

particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so, and that such burden

has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish

circumstances unerringly and reasonably raising at inference of than fact. The court pointed out that the essence of a benami is the intention of the

party or parties concerned and in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by following

circumstances; (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive,

if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged

benami; (5) the custody of the title deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale. The

above indication were held to be not exhaustive and their efficacy varies according to the facts of each case. The source whence the purchase

money came, was considered to be far the most important test for determining whether the sale standing in the name of one person is in reality for

the benefit of the other.

In Thangayi Ammal vs. Gurunatha Goundan (1963) II M.L.J. 151= 76 L.W. 261), a learned Judge of this Court had an occasion to deal with

the determination of the nature of a benami transaction. That was a case wherein a suit was filed by one T said to be the concubine of G for a

declaration of her title to the suit property and for mesne profits and costs and the main plea of G was that the purchase was benami for him. The

plea of T the plaintiff that she had paid the consideration was found against, while at the same time it was found that T the plaintiff had been living

amicably with G till 2 1/2 years prior to the suit and was in enjoyment and patta standing in her name and paying kist ever since the purchase. In

such circumstances, after adverting to the relevant case law on the subject the learned Judge held that the Source of consideration is only one of

the tests and where the other test applied for that purpose for instance patta being in plaintiffs favour, payment of kist, title deeds being with the

plaintiff and the motive alleged namely that G wanted to screen the property from the son was not proved, the finding of benami cannot be based

solely on the finding of payment of consideration by G, since the purchase constituted a clear intention on the part of G to benefit the plaintiff in

whose name the property was purchased.

In C.K. Krishnan v. C.K. Shanmugham and others (1975 II M.L.J. 73) a Division Bench of this Court had on occasion to consider the nature

of presumption that would arise in case of the property standing in the name of female as to whether it is the separate property of the female

member or joint family or coparcenary property. Dealing with the nature and incident of such presumption, the Division Bench has held as follows:

The main controversy, however, revolves on the question whether Jayanthi Somiya works at Thadagam road, which is admittedly in the name of

the second defendants wife, is the property of the joint family or not. A note of caution is always struck when Courts are obliged to deal with

properties standing in the names of female members of a joint family. The presumption which usually arises when such a property stands in the

name of a male member of the family, is not so easily available in cases where the properties stand in the name of female member. In the joint

family if there is sufficient nucleus belonging to the said family and if the said apparatus of nucleus is in a position to yield surplus income which

would enable the members of the joint family to purchase properties in the name of one or the other of the members of the family, then the

presumption is raised that such properties, though prima facie in the name of one of the members of the family, are vitally to be held to be the

properties of the family, and not of the member concerned. No doubt, if, in a given case, a challenge is made that the particular person in whose

name the property stands is its owner, then the onus is heavily on him to establish that he has purchased the property from and out of his own

acquisitions and without resort to, or without deriving any assistance from, the joint family nucleus or its income. But, on the other hand, if the

property stands in the name of a female no such prima facie presumption arises. If the challenge, however, by a member of the family is that the

property standing in the name of a female member such as a members wife or a sister of the family etc., should ensure to the benefit of the family in

general, then he has to necessarily bring home such hypothesis and data to the knowledge of the Court in an action initiated by him and establish, at

least reasonably, that his contention is plausible and maintainable. If, on such data made available to the Court, the ostensible title of the female

holder is likely to tilted then the female member, in whose name the property stands, is obliged to give contrary evidence to set at naught that

inference which might be drawn by the courts on the hypothesis produced by the challenging members of the family. The above proposition is

stated by a Division Bench of this Court in Nagayasami Naidu and Others Vs. Kochadai Naidu and Others, , in a slightly different way thus:

There is an essential distinction as to the scope of the presumption in the case of acquisitions in the names of male members of a joint family and the

female members of a joint family. In the case of male members of a joint family, there is presumption that if the joint family had sufficient ancestral

nucleus, the properties standing or acquired in the name of Junior members are joint family properties unless the presumption is rebutted by

showing that the properties are the separate properties of the particular member or members in whose names the properties stand or were

acquired. There is no such presumption in the case of properties standing in the name of female members. In the latter case, it is for the party who

claims properties as joint family properties to specifically plead the particulars and details, in the pleadings and establish the same by adducing

necessary evidence. If there is no pleading, and if on the side of the plaintiff there is no evidence, there is no need for detailed scrutiny of the case

of female members of persons claiming through them as the resources of the female members and as to how they acquired the properties in

question. If the plaintiff on whom the burden lies adduces no evidence, no further question arises and the female member in whose name the

property stands, must he held to be the beneficial owner of the property in question.

The learned Judges of the Division Bench made it clear that there should be pleading and the challenging party, or the plaintiff in the concerned

action, should also produce some evidence for the Court to scrutinise the title of the family member so as to ascertain whether the real title in the

property is in such a female member for she is only benamidar for the family.

In Kandaswami Chettiar and others v. Gopal Chettiar and others (1975 II M.L.J. 184)= 88 L.W. 63 SN a Division Bench of this Court had

once again considered the question as to the position of the property standing in the name of a female member and it was held there in as follows:

Before parting with the case, we have to also consider the nature of proof required, when the property is secured in the names of female

members of the family or female relatives. No doubt, the Supreme Court in Narayanaswami v. Ramakrishna (19651 MLJ (SC) 78) after noticing

the fact, that the acquisitions were made in the name of kartas wife, his son etc., held on a consideration of the evidence that it did not appear that

the joint family had at the date of the acquisitions made sufficient nucleus from which these properties could be acquired. In that context, the

learned Judges said:

Where in fact at the date of acquisition of a particular property, the joint family had sufficient nucleus for acquiring it, the property in the name of

any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless

the contrary is shown.

A Division Bench of this Court consisting of Ramamurthi, J. and Alagiriswami, J, had occasion to consider the judgment of the Supreme Court in

Narayanaswamy v. Ramakrishna, 1965-1-M.L.J. (S.C.)78. in Nagayasami v. Kochadai (1968) 81 L.W. 438. There, our court said.

There is no essential distinction as to the scope of the presumption in the case of acquisitions in the names of male members of a joint family, and

the female members of a joint family. In the case of male members of a joint family, there is a presumption that if the joint family had sufficient

ancestral nucleus, the properties standing or acquired in the name of junior members are joint family properties unless the presumption is rebutted

by showing that the properties are the separate properties of the particular members or members in whose names the properties stand or were

acquired. There is no such presumption in the case of properties standing in the name of female members. In the latter case, it is for the party, who

claims properties as joint family properties, to specifically plead the particulars and details, in the pleading and establish the same by adducing

necessary evidence. If there is no pleading and if on the side of the plaintiffs there is no evidence, there is no need for detailed scrutiny of the case

of the female members or persons claiming through them, as to the resources of the female members and as to how they acquired the properties in

question. If the plaintiff on whom the burden lies adduces no evidence, no further question arises and the female member in whose name the

property stands, must be held to be the beneficial owner of the property in question.

The learned Judges went elaborately into the question with reference to the established precedents, and said that the Supreme Court did not

consider a general situation like the one which arose before them and observed:

We are not prepared to hold that the Supreme Court intended to overrule the uniform view taken by all the High Courts in a series of cases and

upset this well settled and well established rule of distinction in the matter of presumption.

In the light of the above well said and well laid principles of law, we are unable, with great respect, to approve of the decision in Ramudu

Mudaliar v. Ellammal (81 L.W. 509). There, Raghavan, J., observed thus:

When a family continues to be a joint family, there is no reason why the purchase by a member in a revenue auction should be exclusively for

himself and not for and on behalf of the family of which he was a member. It is, of course, open to member of a joint Hindu family to acquire

property in his own name. But the acquire has to establish that the fund for the purchase did not come from the joint family funds but that it was his

own.

With great respect to the learned Judge the onus is not on the acquirer to prove that the property standing in his name was purchased from joint

family funds. That may be so, in the case of manager of the joint family, but not so in the case of all coparceners. For a greater reason it is not so in

the case of female members. We are, therefore, of the view that, in the absence of any evidence in this case that there was such income yielding

apparatus in the nature of a joint family nucleus and in the absence of such joint family properties being available to the coparceners even for

purposes of enjoyment as in this case the mother is admittedly enjoying the income therefrom, we are unable to hold that the properties described

in schedule B1, C and G ought to be deemed and considered as joint family properties. The properties in the name of the female members and

female relatives respectively of the family such as the fifth and the seventh defendants should stand without being disturbed. This is so because the

plaintiff has failed to prove that on the date of acquiring those properties, the family had sufficient income from which the disputed accretions or

acquisitions might have been made.

In Kistappa Naicker and others v. Elumalai Naicker (1976 II M.L.J. 470)= 89 L.W. 471) a learned single Judge of this Court had an occasion

to consider the nature of proof and the extent onus on a person claiming the property standing in the name of a female member and it was held

therein as follows:

It has been repeatedly held by this Court that when a husband purchased the property in the name of his wife by paying his own money from

that alone no inference can be drawn that the wife was only a benamidar, and having regard to the nature of the relationship between the parities,

and the normal tendency of the husband to benefit the wife either by payment of money or by purchase of property in her name, the allegation of

benami can be established only by proving the motive for such benami purchase vide Thangayai Ammal v. Gurunatha Goundan and others (1973 2

MLJ 151= 76 L.W. 261) and Ammaponnammal v. Shanmugam Pillai (died) and others (84 L.W. 145). In view of this legal position settled by this

Court, prima facie, the conclusion of the learned Subordinate Judge is correct.

On the face of this, this decision did not deal with any burden of proof at all, and therefore the same is also not of any assistance to the

appellants herein. Mr. Sundaravaradan, the learned counsel for the appellants, made it absolutely clear that in such a case even though the burden

in the first instance of proving that the consideration proceeded from the husband is the person who asserts to that effect, once he has discharged

that burden and has established that the consideration proceeded from the husband, the burden shifts to the person who asserts that the property is

the property of the wife to prove that the intention of the husband in so purchasing the property was to make the wife the beneficial owner thereof.

I as unable to accept this argument, for there is no scope for the shifting of burden in such member in relation to an allegation of benami. Once the

title deed stands in the name of a person and somebody comes and asserts that the real title vests in another person and the person in whose name

the title deed stands is a benamidar, the burden of proving that the person in whose name the title deed stands is not the beneficial owner and the

beneficial owner is somebody else, is throughout on the person who asserts to that effect, and the burden never shifts. This view is clear from a

decision of the Supreme Court in Jayadayal Poddar and another v. Mst. Bihi Hazara and others (1974 2 SCJ 517). There, the Supreme Court

observed:

It is well settled that the burden of proving that particular sale in benami and the apparent purchaser is not the real owner, always rests on the

person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly

prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the

intention of the party or parties concerned, and not unoften such intention in shrouded in a thick veil which cannot be easily pierced through. But

such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him nor justify the

acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after

considerable deliberation, and the person expressly shown as the purchaser or transformed in the deed, starts with the initial presumption in his

favour that the apparent state of affairs is the real state of affairs"". Under these circumstances, there are no merits in the second appeal, and the

same fails and is dismissed. There will be no order as to costs. No leave.

In Muthuswamy Gounder v. Rajammal (1980-I-MLJ 21), a Division Bench of this Court had once again considered the principles to be

applied and the nature of presumption available in respect of the properties standing in the name of a female member in opposition to the claim of

such property being joint family property, by a member of the coparcenary. The Division Bench after adverting to the decisions in Krishnan v.

Shanmugam (1975-2-M.L.J.73); Kandaswami Chettiar v. Gopal Chettiar (19752-M.L.J. 184= 88 L.W.63 SN.) has held as follows:

The plaintiffs, however, wanted to sustain the subject matter by setting our an alternate contention. Their also was that the property though

standing in the name of the female member of the family and though it has stood in her name for nearly four decades and more, should still be

considered to be a property held by her originally as a benamidar and that the benefit of the ownership in that property should go to her husband

and her husbands shares This is a very curious proposition. Repeatedly this Court has pointed our in many of its decisions, to wit, in Krishnan v.

Shanmugam (1975 II MLJ 73) and Kandaswami Chettiar v. Gopal Chettiar (1975 II MLJ 184= 88 L.W. 63 SN) that if the property stands in the

name of a female, no presumption arises that the course has emanated from the joint family funds or its income. If a challenge is made by a member

of the family that the property standing in the name of female member should ensure to the benefit of the family in general, then he has to necessarily

bring home such hypothesis and date to the knowledge of the Court in an action initiated by him and establish, at least reasonably, that his

contention is plausible and maintainable. If, on such data made available to the Court, the ostensible title of the female holder is likely to be titled,

then the female member, in whose name the property stands, is obliged to give contrary evidence to set at might that inference.

The case on hand, considered in the light of the well settled principles laid down by more than one judgments referred to supra would show

that the First appellate court has misapplied the law and proceeded on an erroneous assumption on the normal presumption as also the extent or

mode of proof required on the part of person asserting claim that the properties standing in the name of a female member really does not belong to

her and that it is also available for the joint family for being divided among the members of the joint family, as such. A careful perusal of the nature

of consideration of the entire catena of cases in paragraphs 16 to 25 of the lower appellate courts judgment and more particularly those dealt with

in paragraphs 16 to 18 would go to show that the first appellate court has chosen to reflect the claim of the plaintiff on the ground that there has

been no proper proof by the plaintiff of the circumstances surrounding the purchase under Exhibit A-7. The consideration by the first appellate

court itself discloses certain vital self contradicting conclusions. Though the court adverted to the fact that the purchase under Exhibit A-7 is in the

name of P.W. 2, that the motive urged as the reason for the benami purchase cannot be said to be true and that the document Exhibit A-7 did not

by itself indicate that the husband of P.W. 2 was present at the time of registration of the sale deed, but yet has chosen to reject the claim of the

plaintiff of P.W. 2 being the owner of the property, merely on the basis of a vague and perfunctory report of a commissioner appointed at the

appellate stage and married as Exhibit C-1 and C-2. Their first appellate court miserably failed to give due weight to the fact that there was

absolutely no evidence whatsoever on the defendants side to prove that the purchase in question was from the funds of joint family and that it was

treated as property acquired from the joint family. Though the vague and general plea of blending was also made a part from the claim that the

purchase was made from the funds of the father, the husband of P.W. 2 not only, there was no concrete evidence to substantiate the same but the

plea of blending had no legs to stand on any evidence worthy of credence or serious consideration. Per contra, there was overwhelming evidence

on record not only in the shape of oral evidence by P.W. 2 and 3 and another son who categorically asserted that the property in question was

always treated as belonging to the mother P.W. 2 and was not subject matter of partition among the brothers, at the oral partition pleaded by the

defendants, there was sample documentary evidence with reference to the handling of the property and further dealings subsequent to the

purchase. Patta was also transferred and stood in the name of P.W. 2 and electrical service connection was also obtained for installing a motor

pumpset to draw water for irrigation purposes in the name of P.W. 2 that the property has been given as security to the Agricultural Credit Society

by P.W. 2 and all these incontrovertible facts would demonstrate and prove the conclusions and consistent assertion at all relevant times by P.W. 2

of her title and rights of ownership and there is absolutely no evidence of any credence available to the contra for acceptance of the claim

projected by the defendants in juxtaposition to the plea of the plaintiff based on records, supported by oral evidence. I have gone through the

report of the Commissioner marked at the stage of appeal before the first appellate court, secured on a direction for such appointment by the first

appellate court and a perusal of the same would go to show that it is not only too vague and general but also bereft of any positive data or

conclusion to support the plea of partition or to substantiate the claim that the property in question belonged to the joint family. It is really hard to

believe that a report of the nature perfunctory in its particulars and more so even in the absence of any examination of such a Commissioner to

prove their work could have been used as a legal basis or justification for disturbing the well merited findings of the learned trial Judge. The

evidence tendered on behalf of the defendants does not really clinch the issue, neither with reference to the availability of the joint family nucleus

nor surplus or sufficient funds for the purchase or the factum of such funds having been lent or really going into the consideration for purchase in

question effected by P.W. 2 under Exhibit A-7 or to prove the claim of the defendants which goes contrary to the documentary evidence on

record. The learned Judge of the first appellate court also failed to keep into consideration the well settled principles of law repeatedly laid down

and reiterated by courts concerning also the normal and general presumption enuring in favour of a wife even when it is shown that the

consideration really proceeded from the husband of such purchase and that no inference can be drawn from the said factor alone that the wife was

only a benamidar, having regard to the nature of the relationship between the parties and the normal tendency of the husband to benefit his wife

either by the payment of money or by manage the purchase of the property in her name and for her benefit. As pointed out earlier in the case on

hand, there is no evidence whatsoever to show that the funds which went as consideration for the purchase under Exhibit A-7 was out of the funds

of the joint family and in the absence of any such evidence on record even if it be assumed that the consideration flowed from the husband of P.W.

the inevitable presumption only would be that the husband of P.W. 2 wanted to benefit her by purchasing the property to her in her name and it

cannot by itself be indicative of the fact that she was a name lender only, particularly, in this case, in the teeth of the only motive urged as though for

avoiding Land Ceilings was found to be a misnomer even according to the finding of the first appellate court.

The judgment and decree of the first appellate Judge, in my view suffer from several serious infirmities pointed out and the first appellate court

proceeded upon an erroneous view on a very vital and substantial question of law arising for consideration in the appeal. For all the reasons stated

above, the judgment and decree of the first appellate court are hereby set aside and that of the trial court is restored. Second appeal is allowed.

No costs.