PALANI MUDALIAR Vs. MNATARAJAN ALIAS AMALORPAVANATHAN

JUDGEMENT

(1.) The main question to be decided in this appeal is whether the English doctrine of advancement applies to Indian Christians. The rule does not apply to Hindus or Mohammadans. See Gopeekrist Gosain V/s. Gungapersaud Gosain (1854) 6 M.I.A. 53 Sum Lakshmiah Chetty V/s. Kothandarama Pillai (1925) 49 M.L.J. 109: L.R 52 I.A. 286: I.L.R. 48 Mad. 605 (P.C.)Bilas Kunwar V/s. Desraj Banjit Singh (1915) 29 M.L.J. 335: L.R 42 I.A. 202 I.L.R.. 37 All. 557 (P.C.)and Maulvie Sayyud Uzhur Ali V/s. Mst. Bebee Ultaf Fatima (1869) 13 M.I.A. 232 In Maung Tun Pe V/s. V. K. Haider (1936) I.L.R. 14 Bang. 242 (F.B.) a Full Bench of the Rangoon High Court held that it did not apply to Burmese Buddhists. In Kerwick V/s. Kerwick (1920) 39 M.L.J. 296: L.R 47 I.A. 275: I.L.R. 48 Cal. 260 (P.C.)the Privy Council held that the presumption of an advancement does apply to persons who are born in India of English parents and have resided in India all their lives, except for occasional visits to England. . Admittedly there is no decision of the Privy Council or of Indian Courts which has extended the application of the principle.

(2.) Before discussing further the question whether the doctrine of advancement applies to Indian Christians it will be convenient to set out the relevant facts. The appeal arises out of an application filed by the first respondent in insolvency proceedings in this Court. The insolvent, Ponnamruthammal, is the wife of the first respondent, who applied for a declaration of his title to a half share in a house and its site known as No. 53, Avadhanam Papier Street, Choolai, Madras. This property was purchased on the 29 August, 1938, in the name of the insolvent and one Harryo Daniel, who had married the daughter of the first respondent and the insolvent. The price paid was Rs. 6,500. The first respondent had been employed as a guard by the South Indian Railway Company Limited. He retired in the month of January, 1938, when he was paid the sum of Rs. 7,000 which was standing to his credit in the provident fund of the company, and later a sum of Rs. 2,175, which represented a gratuity for good service. The first respondent's case is that out of the moneys which he received from the railway company he provided altogether Rs. 2,500, and this has been held to be the case by the learned Judge sitting in Insolvency (Krishnaswami Aiyangar, J.). When . the transaction was entered into the first respondent paid Rs. 1,500 and the father of Harry Daniel Rs. 2,000. The balance, Rs. 3,000 was advanced by the vendors on the security of a mortgage of the property. entered into by the insolvent and her son-in-law. The. mortgage was discharged the same year.? Out of the Rs. 3,000 due to the vendors Rs. 1,000, was advanced by the first respondent and Rs. 2,000 was raised on a mortgage in favour of the Madras City Co-operative Bank Limited. This deed of mortgage-is, dated the 5 November, 1938, and was executed by the first respondent, his wife, their son, their two daughters, and their son-in-law.

(3.) The property was divided into two residences one in which the first respondent and his wife lived and the other in which their daughter and their son-in-law lived. On the 28th November, 1940, the insolvent executed a deed of settlement of her interest in the property in favour of her husband, her son and the daughter who had married Harry Daniel. The consideration was stated to be her natural love and affection for the beneficiaries. The deed contains these recitals: Whereas the settlor and one Harry Daniel jointly purchased the houses and ground 53, Avadhanam Papier Road, and 4-A, Dharmaraja Koil Street, Choolai, Madras, more particularly described in the schedule hereto by a deed of sale, dated the 20 day of August, 1938, and Whereas the settlor is in possession and occupation of one half of the said properties and Whereas the settlor has been in indifferent health for some time and desires to settle her half share in the said properties in favour of her husband Amalorpavanadhan and her children Louis Victor and Magalamari Ammal, the beneficiaries, out of her natural love and affection and with a view to provide for them. The insolvent was adjudicated on the 8 April, 1941, and the order of adjudication was based on this deed of settlement. On the 25 April, 1941, the first respondent filed an application in the insolvency proceedings in which he asked for a declaration that he was the owner of half of the property and that his wife was merely a benamidar for him to this extent. He also asked for an order permitting! him to remain in possession of the portion of the house occupied by him and his wife. This is the application which has given rise to the appeal. The learned Judge held that the wife was a benamidar for her husband, but his judgment makes it clear that he did not arrive at this conclusion without hesitation. The evidence, to use the learned Judge's language, is meagre, but it is certainly sufficient to establish the fact that the first respondent did provide Rs. 2,500 of the money required for the purchase of the property. In fact this has not been disputed before us. It is also accepted that if the wife is to be deemed a benamidar the husband is entitled to a half share in the property.