P THIRUMAL NADAR Vs. PICHAI AMMAL

JUDGEMENT

(1.) This is an appeal under Clause 15 of the Letters Patent against the judgment of Chandrasekhara Aiyar, J., dismissing an appeal from the Additional Judge of the City Civil Court at Madras. The suit was instituted by the first respondent herein for partition of the properties in suit consisting of two items of immoveable property and for delivery to her of one share thereof, the other share to be delivered to the second defendant. The plaintiff and the second defendant are the daughters of the first defendant by his first wife, one Marimuthu Ammal, who died on the 19 February, 1943. The suit was brought on the basis that the two items of immoveable property belonged absolutely to Marimuthu Ammal, and on her death, devolved in equal shares on her two daughters, the plaintiff and the second defendant. The first defendant, the father, contested the suit and claimed that Marimuthu Ammal, his deceased wife, had no title to either of the properties.

(2.) The case for the plaintiff was that in regard to the first item of property, the first defendant conveyed it absolutely to her mother by a deed of settlement dated 22nd September, 1923. The case of the first defendant was that the settlement deed was executed nominally and was not intended to be operative. The second item of property was purchased on the 4 January, 1924, for a consideration of Rs. 800 and the sale deed was taken in favour of the plaintiff's mother, Marimuthu Ammal. The sum of Rs. 800 was made up of Rs. 260 paid in cash at the time of the registration of the sale deed and the balance was the amount due to Marimuthu as the mortgagee under the deed of mortgage dated 14 September, 1923 (Ex. D-17) which had been executed in her favour by the vendor to secure a sum of Rs. 500. The case of the first defendant in regard to this item was that the consideration was provided by him and it was not intended that the wife, Marimuthu, should have any title to the property. The learned Additional Judge of the City Civil Court, after a consideration of both oral and documentary evidence, held that Marimuthu, the mother of the plaintiff and the second defendant, was absolutely entitled to both the properties. He held that the settlement deed in respect of item 1 and the mortgage deed and the sale deed in respect of item 2 were not benami transactions but transactions intended to convey beneficial interest to Marimuthu. The learned Judge came to this conclusion in view of the evidence adduced in the case that the first defendant was at the time, of the transactions keeping a concubine and the transactions were brought about in favour of the wife at the suggestion of common friends, because it was apprehended that the first defendant might squander away the properties of the concubine. The evidence pointed to the conclusion that the settlement deed and the mortgage taken in the name of the first defendant's wife, both of which took place at a short interval, were intended to make a provision for Marimuthu, the first defendant's wife. The learned Judge of the City Civil Court, therefore, granted a decree in favour of the plaintiff for a half share in the two items of property. There was an appeal to this Court by the first defendant and the learned Judge, Chandrasekhara Aiyar, J., agreed with the trial Judge in the findings in respect of both items 1 and 2. He confirmed the decree of the lower Court and dismissed the appeal. The first defendant has filed an appeal against the decree and judgment of Chandrasekhara Aiyar, J., but has confined his claim to item 2 only. The Letters Patent Appeal is concerned only with the title to item 2.

(3.) Learned Counsel for the appellant relied upon the concurrent findings of the learned trial Judge and the learned Judge of this Court that the consideration for the mortgage as well as the sale in respect of item 2 was found by the first defendant. He contended that as there was no presumption of advancement in this country when property was purchased by a husband with his own funds in the name of his wife, it followed that the first defendant was entitled to the property so purchased. He relied for his contention on three decisions of the Judicial Committee, Lakshmiah Chetti V/s. Kothandarama Pillai (1925) 49 M.L.J. 109 : L.R. 52 I.A. 286 : I.L.R. 48 Mad. 605 (P.C.), Guram Ditta V/s. Ram Ditto (1928) 55 M.L.J. 651 : 55 I.A. 235 : I.L.R. 55 Cal. 944 (P.C.) and. Shambhu Nath Shivpuri v. Prishka Nath (1944) 2 M.L.J. 348. It is not necessary to make a detailed reference to the latter two cases which dealt with a deposit by a Hindu of money in a bank in the joint names of himself and his wife, and it is sufficient to refer to the case of Lakshmiah Chetti V/s. Kothandarama Pillai (1925) 49 M.L.J. 109 : L.R. 52 I.A. 286 : I.L.R. 48 Mad. 605 (P.C.), which was a case where the husband purchased the property in the name of his wife with his own money. The law on the point was thus laid down at page 608 of the report by Sir John Edge: There can be no doubt that a purchase in India by a native of India of property in India in the name of his wife unexplained by other 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.