MRS SWARNAM ISWARIAH Vs. KMSRMKANNAPPA CHETTY

JUDGEMENT

(1.) This appeal arises from a decision of our learned brother Gentle, J., on a matter relating to proviso C to Section 3 (ii) of Madras Act IV of 1938 and the connected Rule 7 of the rules framed under that Act by the Government of Madras.

(2.) The appellant here is the decree-holder. She obtained a decree in 1934 on a promissory note. The respondent filed an application under Section 19 of Act IV and it was resisted on the allegation that the respondent was not an agriculturist by reason of his being assessed to property tax in respect of a house situate within the Municipality of Devakottah. The respondent proved that the house in question had been sold by him on 10 February, 1935. This was met by an allegation that the sale was a benami transaction, which allegation the appellant failed to substantiate by the necessary evidence. The learned Judge consequently held, applying Rule 7, that the person in whose name the assessment to property tax stood was not the owner of the property during the relevant period and that therefore he was not disqualified by reason of the mere inclusion of his name in the municipal registers from being an agriculturist under the Act. We should add that there was evidence before the learned Judge that the tax for the relevant period was actually recovered from the purchaser.

(3.) In appeal before us, an attempt has been made to dispute the finding on the question of benami by the argument that the facts could only be established in the cross-examination of the respondent and that the respondent had not gone into the box. It seems to us that when no evidence at all was tendered on behalf of the appellant and apparently no request was made for - the cross-examination of the respondent on his affidavit, it cannot be held that the benami theory, in respect of which the onus clearly lay upon the appellant, was established merely by the failure of the respondent to offer himself for cross-examination.