HIRA LAL Vs. MTJAMNA

JUDGEMENT

(1.) This appeal arises out of a suit for declaration brought by Mt. Jamna and Ram Katori. The latter is the daughter of Mt. Saraswati. The property in dispute is a certain house which was purchased in 1916 in the names of Mt. Jamna and Saraswati who has since died and is now represented as regards her "stridhan" property, by her daughter Katori one of the two plaintiffs. The plaintiffs case was that the house purchased under the sale referred to above belonged to the vendees and that it was not liable to be attached and sold in execution of a decree obtained by the appellant, Hira Lai, against Daryao Singh, husband of Mt. Saraswati, and his son Bam Sarup, husband of Mt. Jamna, the other plaintiff. Hira Lal pleaded that the house was purchased by his judgment-debtors "benami" in the names of their wives. The trial Court gave effect to this plea and dismissed the suit. On appeal by the plaintiff the lower appellate Court took a contrary view and decreed the suit.

(2.) The sole question in the case was one of fact. If the sale-deed in question represented a "benami" transaction in which the real purchasers were Daryao Singh and Ram Sarup and the ostensible vendees were mere "benamidars" for them, the plaintiffs suit is liable to be dismissed. The learned Subordinate Judge, who heard the appeal, started with the presumption that the ostensible owners are real owners, unless the contrary is proved. Exception is taken by the learned advocate to the proposition of law involved in that view. The learned Judge then observed that the contesting defendants produced no evidence of any kind to rebut the presumption arising from the apparent tenor of the deed except the fact that the husbands lived with their wives in the same house, a fact which the learned Judge rightly disregarded as inconclusive. Wholly apart from the question of onus, and assuming that it lay on the plaintiffs in spite of a registered sale-deed in their favour, the learned Judge found, on evidence, that one of the ladies, namely, Mt. Saraswati, had funds of her own, which she bad received from her father's assets and with which she carried on money lending business, and that she purchased the house with funds belonging to herself.

(3.) In my opinion this appeal must fail, on two grounds. In the first place, the decision of the lower Court proceeds on a correct view of law. I agree with it in holding that, on proof of a deed which on the face of it is in favour of the plaintiff, the onus of proving the "benami" character of the transaction lies on the defendant, who alleges it. It is argued by the learned advocate for the appellant that, where property is purchased in the name of a man's wife, the presumption is that the real purchaser is the husband. Reliance is placed on Lakshmiah Chetty v. Kothandarama Pillai 1925 P.C. 181 in which their Lordships of the Privy Council are reported to have held that a purchase in India by a native of India of a property in India in the name of his wife unexplained by either 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.