KAILASAM PILLAI Vs. SIVABAGYAMMAL

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the respondent for the recovery of possession of a house situated in the village of Athur in the Salem District together with mesne profits. The appellant is the son of one Nathamuni Pillai who died on 26 April, 1935. The respondent is the widowed sister of Nathamuni. The house in dispute stands on a site purchased in parcels on four different occasions. The first purchase was under Ex. I, a sale deed, dated 22nd May, 1903, executed in favour of the respondent for Rs. 72-8-0. The second purchase was under Ex. I-A, dated 14 August, 1904, for Rs. 100 and this sale deed was taken not only in the name of the respondent but also of her deceased husband Velayudham. The third purchase was under Ex. I-A, dated 12 October, 1925. Here again the sale was in favour of the respondent alone, the consideration amount being Rs. 400. It is common ground that at the severa dates when the purchases were made there were some thatched structures on the sites. A creditor of Velayudham brought up for sale in Court auction a half share in the site purchased under Ex. I-A on the footing that Velayudham was a part owner along with the respondent, and bought it himself. But this share was bought back in the name of the respondent under a sale deed Ex. I-E, dated 16 January. 1926, for Rs. 75. It is thus clear that the entire site on which the suit house stands was purchased in the name of the respondent and would prima facie belong to her unless it is satisfactorily made out that the purchases were effected benami in her name, the real purchaser being Nathamuni himself. The appellant's case is that Nathamuni was the real owner not only of the sites purchased in the name of the respondent, but that it was with his own monies that a costly building was put up on them. The Subordinate Judge who tried the suit came to the conclusion that the appellant's case that the respondent was merely a benamidar for Nathamuni had not been established; but he also found that it was Nathamuni who constructed the building with his own funds. He expressly negatived the contention of the respondent that she it was who found the money for the construction and that Nathamuni merely supervised. But all the same, he was of opinion, that the intention of Nathamuni in putting up the building was that it should be and remain the property of the respondent. In this view he decreed the suit in its entirety. The defendant has appealed and on his behalf the findings of the learned Subordinate Judge have all been contested, more particularly his conclusion that Nathamuni when he spent large sums of his own money in the construction of the house intended to make a gift of it to his sister, the respondent.

(2.) The appellant's learned advocate has entirely failed to convince us that the purchases of the several house sites were made with monies supplied by Nathamuni. It was not till 1906 or 1907 that Nathamuni started his toddy business and there is little evidence on the record to show that he was in possession of funds with which he could have made the first two purchases under Exs. I and I-A. On the contrary, it; is much more likely that the respondent Sivabagyammal had scrapped together some monies out of her earnings as a school mistress and utilised them for the purchases. No satisfactory reasons have been adduced to show why Nathamuni considered it necessary or expedient to have recourse to a benami transaction at the time. There is much less reason for the inclusion of the respondent's husband s; name as a purchaser in Ex. I-A. The burden of proving the benami nature of the transactions is heavily on the appellant and he has not discharged it and .we must accordingly uphold the finding of the learned Judge on this point.

(3.) Nor are we satisfied that there is any substance in the respondent's contention that it was with her monies that the constructions were put up. The learned Judge was justified in declining to accept her fantastic evidence that she had secreted 80 or 85 sovereigns in the store room of the house besides a considerable amount of cash and jewels kept in a box, when she left on a pilgrimage to Benares, in 1925 or 1926. Her case is at complete variance with the picture as presented by herself in her letter Ex. II-A, dated 17 March, 1927. It shows beyond doubt that she had no monies of her own, and that she had to depend upon Nathamuni for her own maintenance and support. In this letter she asks, " Can you be so cruel to me because cloth and food are given to me? You may find fault with me by saying to the lay people that you have enquired of me as to what I needed, that you have helped me very much and that I have spoken like this." After this it is idle for her to contend that her monies were utilised for the building, which was in fact started while she was on a pilgrimage tour. On the contrary, not only was Nathamuni doing a business as an abkari contractor at the time, but had sold his immovable property and it is therefore probable that he had sufficient money in his hands. We are of opinion that the learned Judge's findings on this point also cannot be disturbed.