BILAS KUNWAR Vs. DESRAJ RANJIT SINGH

JUDGEMENT

(1.) This is an appeal from a Judgment and decree, dated the 10th of May, 1910, of the High Court at Allahabad, which reversed a Judgment and decree, dated the 26th of August, 1908, of the Judge of the Small Cause Court of Allahabad exercising the powers of a Subordinate Judge.

(2.) Rai Bisheshar Bakhsh Singh was a taluqdar of Oudh; he was a man of some wealth, a Rajput of good position; he had two Rajput wives but no son; he had, however, one daughter by one of the wives. He had also a Muhammadan mistress named Jagmag Bibi, by whom he had two sons, and for whom he had made provision on a fairly liberal scale, and had given full possession thereof in 1876 and in 1888. On the 9th of June, 1887, the taluqdar purchased for Rs. 9,000 the bungalow in dispute in this action; he raised the purchase money by a mortgage on his own property and paid for it, and had the sole use and enjoyment of it for himself and his wives during his own life, but the deed of sale was made out and registered in Jagmag s name. The taluqdar spent money on the house, built a well and walls and kept a gardener in occupation, he and his wives lived there, and the mother of one of his wives lived and died there. His wives used the bungalow by his permission for "Kalabbas" - i.e. to live at the bank of the Ganges for religious purposes for a month at a time; the purchase seems to have been made for the purpose of the Kalabbas. Jagmag Bibi was never in the bungalow during this period; she would of course, as a Muhammadan mistress, have no part or lot in the Hindu religious observances of Rajput wives, and it is inconceivable that she could have associated in any way in the bungalow with them.

(3.) The bungalow was useless to her for any personal use, and it was wholly inappropriate as a provision for her if the taluqdar ever had any intention or idea of making a further provision for her; the net income was very small - in some years the out-goings exceeded the income. There is no evidence of any intention to give the bungalow to Jagmag as a provision for her or otherwise beyond the bare fact of the registration in her name; it is not clear how or when she got possession of the title deed; it may be that it was in the taluqdar s possession at his death, and she obtained possession of it at some subsequent period. As the deed was made out in her name there is no importance in this. Down to the taluqdar s death the natural inference is that the purchase was a benami transaction; a dealing common to Hindus and Muhammadans alike, and much in use in India; it is quite unobjectionable and has a curious resemblance to the doctrine of our English law that the trust of the legal estate results to the man who pays the purchase money, and this again follows the analogy of our Common Law, that where a feoffment is made without consideration the use results to the feoffor. The exception in our law by way of advancement in favour of wife or child does not apply in India Gopeekrist Gosain v. Gungapersaud Gosain (1854) 6 Moo. I.A. 53 but the relationship is a circumstance which is taken into consideration in India in determining whether the transaction is benami or not. The general rule in India in the absence of all other relevant circumstances is thus stated by Lord Campbell in Dhurm Das Pandey v. Shama Soondri Dibiah (1843) 3 Moo. I.A. 229 : "The criterion in these cases in India is to consider from what source the money comes with which the purchase money is paid."