1. This appeal arises out of darkhast proceedings in the Court of the First Class Subordinate Judge at Surat. The decree under execution was obtained by the respondent Deochand against the appellant Ratanchand and his minor stepbrothers Hirachand and Jivanchand by their mother Subhadra as their guardian ad litem, for the recovery of Rs. 4,100 with interest and costs out of the property of their deceased father Fakirchand which might have come into their possession. The decree expressly stated that there was no liability against the persons or against the exclusive properties of the defendants. In the suit Deochand had claimed that survey Nos. 22/1 and 33 at Rundh belonged to Fakirchand, and the appellant Ratanchand had contended that he had inherited them from his mother Bai Jaskor on her death in 1923; but that question was left open. Deochand presented this darkhast to recover the decretal amount by sale of those two lands in execution of his decree, and the appellant resisted it on the ground that they had been purchased by his mother Bai Jaskor from one Manekji Aderji for Rs. 24,50a on March 27, 1922, and that on her death on December 20, 1923, they had devolved upon him as her heir. The sale-deed was passed by Manekji in favour of Bai Jaskor, but Deochand contend-ed that her husband Fakirchand himself had purchased the lands in her name and that she was only a benamidar for him. The executing Court upheld that contention and ordered the sale of the lands. It is against that order that this appeal is preferred by Ratanchand alone. His step-brothers are still minors, and their mother Subhadra thought it prudent to remain absent and not to put in any written statement. Evidently she did not wish to support the decree-holder by admitting that the lands belonged to Fakirchand, or to support the appellant by admitting that they belonged to Jaskor, thereby depriving herself and her sons of all interest in them. Being thus placed in a dilemma, she seems to have been advised not to say anything in the darkhast.
2. The only question which thus arises for decision in this appeal is whether it is proved that Bai Jaskor was only a benamidar and Fakirchand the real owner of the two lands in dispute. The sale-deed is in favour of Bai Jaskor and there is nothing in it to indicate that she was only a benamidar for her husband Fakirchand. The onus, therefore, lies on the decree-holder to make out that the transaction was benami. It is true that the rule of English law that the purchase of property by a husband in the name of his wife is assumed to be for her advancement, has no application in India ; nor is there any presumption that property standing in the name of the wife belongs to the husband. Our attention is called to the following observations of Sir John Edge in Sura Lakshmiah Chetty v. Kothandarama Pillai (p. 289):
There can be no doubt now 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. The rule of the law of England that such a purchase by a husband in England is to be assumed to be a purchase for the advancement of the wife does not apply in India.
3. With respect, we do not think that this passage is intended to lay down any wide proposition of law that the mere fact of marriage raises a presumption that any property standing in the name of the wife must be regarded as held by her in benami for her husband. In the Privy Council case the property had been actually purchased by the husband in the name of his wife and their Lordships refused to apply the English rule of presumption that the purchase was for the advancement of the wife. The first sentence in the above passage should not be taken apart from the context in which it occurs. The ordinary rule is that a husband claiming that property standing in the name of his wife really belongs to him must prove that the wife is only a benamidar for him, and the burden is discharged if the husband succeeds in proving that the purchase money was paid by him. Until the contrary is shown, it is assumed that he who supplied the purchase money is the owner of the property, though it was purchased in another's name. In the Privy Council case, it was admitted that the husband had paid the purchase money, and it was contended that he had purchased it in his wife's name far her benefit. It was in view of these pleadings that the burden of proof was thrown on the wife, and it was laid down that where the husband actually purchased property in the name of his wife, such a transaction standing alone and unexplained by other proved and admitted facts should be regarded as a benami transaction. To apply this test, it is first necessary to ascertain the source of the; purchase money.
4. Fakirchand's uncle, Rao Bahadur Naginchand, was a well-known and prosperous businessman in Surat. Naginchand, his son Sobhagchand and Fakirchand lived in union, but unfortunately they fell on bad times and were adjudged insolvents in 1914 and they remained undischarged insolvents till 1918-19. Naginchand died in 1917 and after their discharge Sobhagchand and Fakirchand started business afresh and became affluent again. The darkhastdar Deochand says that it was thereafter in 1922 that Fakirchand purchased the two lands in dispute for Rs. 24,500, but took the sale-deed in the name of his wife Bai Jaskor with a view to shield them from possible creditors in case of loss in business. Admittedly he was not present when the transaction took place, and his interested statement that Fakirchand himself once told him that he himself was the owner of the lands standing in his wife's name carries no weight. His witness Jamnadas, who was in the service of Fakirchand's family for nearly twenty years till 1928, indirectly supports the appellant's case that the purchase money was paid out of Bai Jaskor's funds. He admits that at the time of the insolvency some amounts were transferred by the insolvents to the names of their wives, and their wives retained their ornaments worth Rs. 10,000 to Rs. 12,000, and also possessed some shares standing in their names. The sale-deed shows that out of the consideration Rs. 17,500 were paid in cash, and for the balance of Rs. 7,000 the lands themselves were given in mortgage by Bai Jaskor. Jamnadas admits that there was a khata of Jaskor in Fakirchand's accounts and that the amount of Rs. 17,500 was debited to her in that khata when the lands were purchased by her. He admits that at that time there was a large credit balance in her khata. He used to write Fakirchand's accounts and so he knew the state of her khata. The next witness Naginbhai admits that when Jaskor was married to Fakirchand, the family was flourishing and affluent, and that it spent lavishly on the marriage. The appellant was a minor when the! lands were purchased, and so he cannot be expected to have any personal knowledge. But his maternal uncle Panachand says that at the time of Jaskor's marriage, the presents and the cash received by her were worth in all about Rs. 21,000 and that does not seem unlikely. Deochand has examined Bai Rami, the family maid-servant, to prove that! the talk of the purchase of the lands took place in her presence and that Fakirchand paid Rs. 17,000 to the vendor in her presence. The lower Court has rightly held her evidence as an exaggeration.
5. Jaskor died in December, 1923, when the appellant was still a minor, and Fakirchand, as his guardian, paid off the mortgage and obtained a deed of reconveyance in the name of the appellant. Hirachand, the writer of that deed, frankly says that he does not know whence Fakirchand brought Rs. 7,000 to pay off the mortgage; but the maid-servant Bai Rami says that he obtained it from Mullaji. She had no reason to know this and no evidence is adduced to prove it When Jaskor died she had still some shares in her name, and Fakirchand obtained a succession certificate in respect of those shares on behalf of the minor appellant in October, 1924.. Thus while all the evidence indicates that the purchase money belonged to Jaskor, there is no evidence on behalf of the decree-holder to show that it was supplied by Fakirchand.
6. Even assuming that a part of the purchase money was contributed by Fakirchand, yet, his motive in doing so and his subsequent conduct have to be taken into consideration. The evidence of the decree-holder's witness Jamnadas, arranged in its proper order, comes to this:
In 1920, Fakirchand and his cousin Sobhagchand purchased properties in their own names with the joint family funds. In 1922 Fakirchand had plenty of money and no debts. Yet he took the sale-deed of the lands in suit in the name of his wife Bai Jaskor to safeguard against future set-back in trade. Jaskor had got ornaments worth Rs. 10,000 to 12,000. Some shares stood in her name. At the date of the sale there was a large credit balance inner khata and the purcahse money was debited in that khata. 'Fakirchand did tell me that the property was to be purchased in Jaskor's name to provide for future contingency.
This shows that even if Fakirchand may have paid some amount to make up the purchase money, he evidently wanted Jaskor to be the owner, so as to provide for future contingency. As observed in Sitamma v. Sitapatirao  Mad. 220, where the motive alleged for a benami transaction itself suggests that the purpose in view could be served only by a genuine purchase and not by a mere benami transaction, the more reasonable inference is that the purchase was intended to; be operative as a genuine purchase and not a benami transaction.
7. The lands were entered in the name of Jaskor and after her death they were transferred to the name of the appellant, Fakirchand being shown as his guardian. Some property in Bombay was also purchased by Jaskor in 1920, and when the appellant filed an application for heirship certificate in respect of that property in 1935, Fakirchand put in a purshis admitting his claim. During the appellant's minority, Fakirchand managed Jaskor's property as his guardian. After the appellant attained majority in 1934, he leased the lands to Limba and! Jetha. Thereafter Fakirchand leased them to the present darkhastdar Deochand, and the appellant accepted that lease. Deochand himself thus became! the appellant's tenant. Limba then filed a complaint against the appellant and Fakirchand. The lower Court has remarked that if the appellant was the owner, he would not have accepted the lease given by his father to Deochand. There was no dispute between the father and the son, and there is nothing unnatural in his yielding to his father's wishes. Mr. Thakor for the decree-holder lays stress on the appellant's admission in his deposition that till his father's death in January, 1936, he had not received a single pie out of the income of the lands. There is nothing strange in this as they were living together. In our opinion the more important circumstance is that although Fakirchand had two sons Hirachand and Jivanchand by his other wife Subhadra and though they attained majority in 1920 and 1930 respectively and he lived till 1936, he never cared to have the lands transferred to his own name if they were his. He must have known that if they remained in Jaskor's or the appellant's name, his other sons would not get a share in them, and yet he took no steps to assert his ownership of the property purchased in Jaskor's name. We are, therefore, satisfied that she was the real owner, and after her death the appellant became the owner as her heir.
8. The lands in dispute are, therefore, not liable to be attached and sold in execution of the respondent's decree in Suit No. 4 of 1938. The appeal is allowed, the order of the lower Court set aside, and the darkhast dismissed with costs throughout.