MYTHILI AMMAL Vs. JANAKI AMMAL

JUDGEMENT

(1.) This appeal is against an order made in execution of the decree in O.S. No. 10 of 1924 on the file of the Sub-ordinate Judge's Court, Cuddalore. The subject of the petition is a house No. 40, South Car Street, Chidambaram. Mythili, the decree-holder, was entitled under the decree to recover Rs. 5,800 from her husband Mahadevan, the judgment-debtor. To realize this sum she attached the aforesaid house as belonging to her husband. Janaki Ammal, mother of Mahadevan, filed a claim praying that the attachment should be raised on the ground that the house was her own. This claim was tried by the learned District Judge, South Arcot, who held that the house did belong to Janaki. Hence this appeal by Mythili, the decree- holder. The learned District Judge chiefly addressed himself to the question whether the purchase money for the house which was purchased in Janaki's name came out of Mahadevan's estate or was furnished by Janaki. He held that, apart from the oral evidence of Janaki, there was no evidence that the purchase money was paid by Janaki out of her own funds but that, on the other hand, there was evidence that it did not come out of the estate of Mahadevan. The points chiefly urged by learned Counsel for the appellant are : (1) that the learned Judge did not appreciate the evidence properly and (2) that he shut out evidence which was produced by Mythili which if taken into account materially helped her case.

(2.) The circumstances attending the purchase of this house and the payment of the purchase money are as follows : In February 1918 when the house was purchased the parties lived at Cuddalore. Janaki had been left a widow in 1913. Her husband had left a large estate estimated to be worth two lakhs which devolved on his son Mahadevan, then aged 13. Janaki managed this estate on his behalf. In February 1918 this house at Chidambaram was conveyed to Janaki for Rs. 6750, the bulk of the consideration being the discharge of a mortgage on the house, for Rs. 6350. In April 1918 Mahadevan came of age. In the latter half of 1918 and the first half of 1919 repairs to the extent of about Rs. 1800 were done to the house and on 14 June 1919 the mortgagee, a vakil living in Madras, was paid Rs. 7100 in full discharge of his mortgage. Some little while before that, the family consisting of Janaki, her son Mahadevan and the latter's wife Mythili had moved to Chidambaram and taken up their abode in the suit house.

(3.) The argument now advanced on appeal is that the learned Judge should have held that the cost of repairing the house in 1918, 1919 and the money for the discharge of the mortgage paid on 14 June 1919 and the balance of the consideration for the purchase, namely Rs. 400, which was paid on 1 June 1921 all came out of the funds of Mahadevan's estate. And that from this the learned Judge should have inferred that the house was purchased benami for Mahadevan. Account books relating to her husband's estate for the relevant period were filed as exhibits by the appellant. Expenditure on the repairs to the house are found in these accounts and certain other entries are relied upon as relating to the payment of consideration for the sale. The learned District Judge held that the account books were not such regularly maintained accounts that the entries by themselves can be taken as prima facie proof of the expenditure. One of the questions now raised and which we have to decide in this appeal is whether the learned District Judge was wrong in not accepting the evidence furnished by the account, books. Again, the appellant sought to exhibit certain income-tax returns made by Janaki on behalf of Mahadevan, in which mention is made of the house. The learned District Judge rejected these returns. It is not objected that he was wrong in doing so and that these returns are powerful evidence in support of the appellant's case.