A. RANGASWAMI PILLAI Vs. A. SUBRAMANIA PILLAI

JUDGEMENT

(1.) THE second defendant is the appellant. The first respondent -plaintiff filed a suit for partition and allotment of 1/3 share in the suit properties which consisted of six schedules. The suit was decreed only in respect of the plaint A schedule properties and even in respect of the same the plaintiff was held to be entitled to only to a 1/4 share and not 1/3 share as claimed in the plaint. The suit in respect of the properties mentioned in the other schedules was dismissed. Since in this appeal by the second defendant, the decree granted in favour of the plaintiff in respect of item 1 of the plaint A schedule alone is disputed, we need notice only the facts relating to that item and the respective contentions of the parties.

(2.) THE plaintiff, defendants 1 and 2 and one Chockalingam Pillai are the sons of one Arthanatha Pillai through his third wife. He had a son by name Soundararajan by his first wife and another son by name Mathuranayagam by his second wife. On 22 -08 -1921 (Ex. B -52). item 1 of the plaint A schedule was purchased in the name of Nagammal, the third wife of Arthanatha Pillai. Arthanatha Pillai executed a will, Ex. A -1, dated 13 -7 -1927 and died in the year 1928. Under this Will he treated the property purchased in the name of his third wife Nagammal as his self -acquired property and made certain bequests in respect of the same, which will be noticed in detail while considering the respective cases of the parties. Nagammal died on 18 -12 -1961 leaving a Will dated 15 -7 -1953 (Ex. B -2). Under this Will, she purported to deal with this item of property as if it was her own and in respect of which she had absolute powers of disposition. The case of the plaintiff was that this item is the self -acquired property of his father Arthanatha Pillai, and that under his Will Ex. A -1 dated 13 -7 -1927 he is entitled to a 1/3 share. It was stated that Chockalingam Pillai, one of the sons of Arthanatha, relinquished his rights in respect of the same under Ex. A -10, dated 21 -4 -1937 and that therefore his legal representatives, defendants 14 to 16, are not entitled to any share in the same. The second defendant, claiming an absolute title to the entirety of this item under the Will of Nagammal, resisted this claim of the plaintiff. It was also contended by him that the property was not the self -acquired property of Arthanatha Pillai, that his father Arthanatha had no right of disposition over the same and that therefore the plaintiff had no right to claim any share in respect of this item relying on the Will Ex. A -1. He further contended that the consideration for the same had not been proved to have been paid by his father and that in any case even if consideration had been paid by Arthanatha Pillai there was no evidence to show that he did not intend by such payment to benefit his third wife Nagammal. Alternatively he contended that even under the Will Nagammal obtained an absolute estate and that therefore she was entitled to dispose of the same in any manner she liked and that the plaintiff had no claim for a share in respect of the same. Even if the Will is construed as not conferring an absolute estate in favour of the sons of Arthanatha and is a conditional bequest and the conditions not having been satisfied, the plaintiff and the other sons are not entitled to any share in the same except the second defendant. The trial court held that the porperty was purchased by Arthanatha benami in the name of his wife from and out of his own income and that it was purchased by him in the name of Nagammal for the benefit of Nagammal and her sons and not Nagammal exclusively. The learned Subordinate Judge also found that the Will executed by Nagammal had not been proved and that she had also no disposing power over this item of property. In respect of the plaintiff's case that Chockalinga, one of the sons, had released his right over the same and that therefore the plaintiff was entitled to a 1/3 share in the suit item, the trial court held that the release deed excuted by Chockalinga was a sham and nominal document and that therefore the legal representatives of Chockalinga were also entitled to a share. In that view, the trial court decreed the suit declaring that the plaintiff, the first defendant and the second defendant are each entitled only to 1/4 share and the legal representative of Chockalinga the remaining 1/4 share.

(3.) IT is next contended by the learned counsel, relying on Section 82 of the Indian Trusts Act, 1082, that Arthanatha intended to provide the consideration for the benefit of his wife and that therefore the property was the absolute property of Nagammal. Section 82 of the Trusts Act provides that where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration. According to the counsel, the payment of consideration alone will not prove a resulting trust, but it must also be proved that the person who provided the consideration did not intend to pay or provide such consideration for the benefit of the transferee and the onus is on the person who asserts that such person did not intend to pay or provide such consideration for the benefit of the transferee and not on the transferee himself, to show that the person did intend to provide the consideration for his or her benefit. He also relied on the provisions of Section 81 in support of the construction placed by him on -Section 82. We are unable to agree with this contention of the learned counsel. When once it is proved that the consideration was provided by a person other than the transferee and it is claimed that the person who provided the consideration did not intend to provide such consideration for the benefit of the transferee, the onus is on the transferee to show that the person who provided the consideration did intend to provide the consideration for his or her benefit. The question that will have to be considered after finding that the consideration was provided not by the transferee but by the other person, is as to whether such other person did intend to provide the consideration for the benefit of the transferee and not whether such person did not intend to benefit the transferee. This could be arrived at both from the language of Section 82 itself and from the general principles of evidence and onus of proof. It is now well -settled that in Indian law the English rule as to presumption of advancement has not been adopted. Therefore, once it is found that the consideration has been provided by the husband, there being no presumption of advancement, it will have to be proved by the person claiming to be the transferee that the consideration was provided for her benefit. But. Section 82 recognises that money might have been contributed by another towards a purchase with the intention of giving the beneficial interest in the person in whose name the purchase is made. The fact to be proved being a positive issue that the person intended to give the consideration to benefit the transferee, the issue cannot be put in the negative form so as to make the person who provided the consideration to show that he did not intend to provide such consideration for the benefit of the transferee. This is the ratio, in our view, of the decision in Chitaluri Sitamma v. Saphur Sitapati Rao, AIR 1938 Mad 8, where the learned Judges held: -