F J R KERWICK Vs. KMKERWICK

JUDGEMENT

(1.) This is an appeal from a decree dated the 19th June, 1913, of the Chief Court of Lower Burma (Civil Appeal side) reversing a decree of the original side of the said Court dated the 29th November, 1917. The suit out of which the appeal arises was brought by the appellant, who is the husband of the respondent, to have it declared, first, that two houses, named respectively Kildare and Kerry, situated at Rangoon, the sites of which the appellant had purchrsed out of capital of his own or borrowed and had procured to be, by two deeds, conveyed to the respondent, upon which sites the appellant had at his own expense erected two dwelling houses, were held by her as his benamidar and that he was the true owner of the same; and second, that the respondent might be ordered to convey these houses to the appellant within, such time as to the Court might seem fit. The respondent by her answer admitted that the sites of the said house had been so purchased and conveyed to her, and the two houses had been built upon them as stated, but alleged that the said sites were so conveyed and the houses built upon them for her as an advancement and that she was therefore entitled to them beneficially as her own property.

(2.) The two deeds bear date the 3rd July, 1907, and 10th June 1908. The grantorin both was one Dr. Pedley and both were duly registered. The general rule and principle of the Indian law as to resulting trusts differs but little, if at all, from the general rule of English law upon the same subject, but in their Lordships view it has been established by the decisions in the case of Gopeekrist Goaain v. Gungapersaud, Gosain (1854) 6 M.I.A. 53 and Moulvie Sayyud Uzlur Ali v. Musmmat Bebee Uitaf Fatima (1869) 13 M.I.A. 232 that owing to the widespread and persistent practice which prevails amongst the natives of India, whether Mahomedan or Hindu, for owners of property to make grants and transfers of it benami for no obvious reason or apparent purpose, without the slightest jntention of vesting in the donee any beneficial interest in the Property granted or transferred., as well as the usages which these natives have adopted and which have been protected by statute, no exception has ever been engrafted on the general law of India negativing the presumption of the resulting trust in favour of the person providing the purchase money, such as hag, by the Courts of Chancery in the exercise of their equitable jurisdiction, been engrafted on the corresponding law in England in those cases where a husband or father pays the money and the purchase is taken in the name of a wife or child. In such a case there is, under the general law in India, no presumption of an intended advancement as there is in England. The question which of the two principles of law is to be applied to a transaction such as the present which takes place between two persons, born in India of British parents, and who have resided practically all their lives in India is of general importance. It would appear to their Lordships that the learned Trial Judge did not correctly appreciate the grounds upon which this Board based their decisions in the two cases already cited. The grounds of his decision are clearly set forth in the following passage from his judgment:- I think that if this had been the are of an Englishman newly arrived in India and presumably imliued with and still retaining English, views and ideas, it might be argued from the above case that the English presumption should be drawn, but as a fact the alleged donee was barn in India and so bad parents before her, while the donor whose position is the more important had also been born in India and had spent the whole of his lift here with the exception of periods when lie was on leave and two years which 119 speak in England completing his education. Under such circumstances I consider that the Indian rule should apply; I also think that if the English view should be adopted the force of the presumption which is of course rebuttable would be very materially weakened, and that the result would be the same.

(3.) The Court of Appeal reversed this decision holding that the principle of law applicable to the case was that which would be applied to a similar case if tried by the Court of Chancery in England, that an intended advancement would prima facie be presumed, that presumption might be rebutted, but that the onus of rebutting it rested upon the appellant. They further held that the appellant had failed to discharge this onus. It is a mistake to suppose that according to the cases already cited in determining which rule of law is in any given case to apply in India entirely depended on race, place of birth, domicile or residence. These were not to be treated as constituting per se as decisive. What were treated as infinitely more important were the widespread and persistent usages and practices of the native inhabitants. But subject to this qualification it is their Lordships view that the principles and rules of law which would be applicable to this case if it were tried in one of the Courts of Chancery in England were applicable to it when tried in Rangoon, and that the decision of the Court of Appeal on the point was in their opinion right.