RATANCHAND FAKIRCHAND Vs. DEOCHAND DAHYABHAI

JUDGEMENT

(1.) THIS appeal arises out of darkhast proceedings in the Court of the First Class Subordinate Judge at Surat. The decree under execution was obtained by the respondent Deochand against the appellant Ratanchand and his minor stepbrothers Hirachand and Jivanchand by their mother Subhadra as their guardian ad litem, for the recovery of Rs. 4,100 with interest and costs out of the property of their deceased father Fakirchand which might have come into their possession. The decree expressly stated that there was no liability against the persons or against the exclusive properties of the defendants. In the suit Deochand had claimed that survey Nos. 22/1 and 33 at Rundh belonged to Fakirchand, and the appellant Ratanchand had contended that he had inherited them from his mother Bai Jaskor on her death in 1923; but that question was left open. Deochand presented this darkhast to recover the decretal amount by sale of those two lands in execution of his decree, and the appellant resisted it on the ground that they had been purchased by his mother Bai Jaskor from one Manekji Aderji for Rs. 24,50a on March 27, 1922, and that on her death on December 20, 1923, they had devolved upon him as her heir. The sale-deed was passed by Manekji in favour of Bai Jaskor, but Deochand contend-ed that her husband Fakirchand himself had purchased the lands in her name and that she was only a benamidar for him. The executing Court upheld that contention and ordered the sale of the lands. It is against that order that this appeal is preferred by Ratanchand alone. His step-brothers are still minors, and their mother Subhadra thought it prudent to remain absent and not to put in any written statement. Evidently she did not wish to support the decree-holder by admitting that the lands belonged to Fakirchand, or to support the appellant by admitting that they belonged to Jaskor, thereby depriving herself and her sons of all interest in them. Being thus placed in a dilemma, she seems to have been advised not to say anything in the darkhast.

(2.) THE only question which thus arises for decision in this appeal is whether it is proved that Bai Jaskor was only a benamidar and Fakirchand the real owner of the two lands in dispute. THE sale-deed is in favour of Bai Jaskor and there is nothing in it to indicate that she was only a benamidar for her husband Fakirchand. THE onus, therefore, lies on the decree-holder to make out that the transaction was benami. It is true that the rule of English law that the purchase of property by a husband in the name of his wife is assumed to be for her advancement, has no application in India ; nor is there any presumption that property standing in the name of the wife belongs to the husband. Our attention is called to the following observations of Sir John Edge in Sura Lakshmiah Chetty v. Kothandarama Pillai (1925) L. R. 52 I. A. 286: S. C. 27 Bom. L. R. 1076 (p. 289): THEre can be no doubt now 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. THE rule of the law of England that such a purchase by a husband in England is to be assumed to be a purchase for the advancement of the wife does not apply in India.

(3.) JASKOR died in December, 1923, when the appellant was still a minor, and Fakirchand, as his guardian, paid off the mortgage and obtained a deed of reconveyance in the name of the appellant. Hirachand, the writer of that deed, frankly says that he does not know whence Fakirchand brought Rs. 7,000 to pay off the mortgage; but the maid-servant Bai Rami says that he obtained it from Mullaji. She had no reason to know this and no evidence is adduced to prove it When JASKOR died she had still some shares in her name, and Fakirchand obtained a succession certificate in respect of those shares on behalf of the minor appellant in October, 1924. . Thus while all the evidence indicates that the purchase money belonged to JASKOR, there is no evidence on behalf of the decree-holder to show that it was supplied by Fakirchand.