John Edge, J.
1. This is an appeal from a decree, dated August 15, 1922, of the High Court of Madras, which reversed a decree, dated August 31, 1921, of the same Court made in its Ordinary Original Civil Jurisdiction, which had dismissed the suit.
2. The suit in which this appeal has arisen was brought in the High Court of Madras on November 19, 1918, by the plaintiff', a minor, by his next friend, against the Official Assignee of Madras and three moneylenders. One of the moneylenders died, and his legal representative was brought on the record as a defendant. The plaintiff is the respondent in this appeal.
3. The plaintiff is the son of V.S. Chockalingam Pillai, a Hindu of the Villain caste, by his wife, Lakshmi Animal, who died before the suit was brought. The plaintiff is the sole heir of his late mother, and he claims the property to which the suit relates as her heir. On September 30, 1918, the plaintiff's father, Chocloilingam, was adjudged insolvent by the High Court of Madras under the Presidency-Towns Insolvency Act, 1909, Act III of 1009. The plaintiff claims in his suit, with other reliefs, a declaration that a piece of land with a dwelling-house and buildings thereon, being Nos. 4 and 5, Nainiappa Naick Street, are his exclusive property as the heir of his mother, and that his father, Chockalingam, had no beneficial or other interest in those properties, which could have vested in the Official Assignee or have been assigned by him in mortgage. 4 and 5, Nainiappa Naick Street will, in this judgment, be referred to as the property in question.
4. The land and buildings then thereon wore purchased by Chockalingam on May 12, 1909, and by the sale-deed were conveyed by the vendors to Lakshmi, who had been married to Chockalingam some years previously. The question upon the answer to which this suit depends is whether Chockalingam had purchased that property in 1909 for his wife Lakshmi in performance of an ante-nuptial agreement alleged to have been made by him to settle a house upon her, or whether the purchase was made in her name as benamidar for Chockalingam. There can be no doubt now that a purchase in India by a 'native of India by purchase 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 h to be assumed to be a purchase for the advancement of the wife does not apply in India. See Gopeekrisi Gosain v. Gungapersaud Gosain (1854) 6 M.I.A. 53 ; Moulvie Sayyud Uzhur Ali v. Mussamat Bebee Ultaf Fatima (1869) 13 M.I.A. 232 and Bilas Kunwar v. Desraj Ranjit Singh . If the plaintiff failed to prove that ante nuptial agreement and that it was in performance of it that the property in question was purchased by Chockalingam in Lakshmi's name, his suit fails.
5. Chookalingam has not been called by either side to give evidence in the suit, and his absence from the witness box has not been satisfactorily explained.
6. The facts, so far as they can be ascertained by their lordships from the record, are as follows:-Chockalingam and Vinayatheertha Pillai, who died in 1898 or in 1899, were trading as pea merchants in partnership at 6, Mint Street, in Madras. When that partnership commenced their lordships do not know. It does not appear what the interest of the partners respectively ' was in the house, 6, Mint Street, or in the partnership. But 6, Mint Street, was the property of the partnership. Vinayatheertha left surviving him two young children, a son Vadivelu, who was living when the witnesses were giving their evidence in the suit, and a daughter Lakshmi, and his mother Kathayee, who gave evidence in this suit. After Vinayatheertha died his mother Kathayee carried on the family business in partnership with Chockalingam at 6, Mint Street, and Kathayee and the two young children of Vinayatheertha continued to live in that house together with Chockalingam. Chookalingam married Lakshmi, according to the plaint in or about 1907, or, according to the evidence of witnesses who were relations of Lakshmi, in 1909. At the time of the marriage Chockalingam had two wives living, one of whom was living with him, and he also had a son living. According to the evidence of Kathayee and two relations of Lakshmi, if it may be credited, when Chockalingam asked for Lakshmi in marriage, Kathayee, acting on the advice of relations, said to him that she would give him Lakshmi in marriage if he would make a provision for her, but not otherwise, and asked him what provision he would make for Lakshmi, and he said that, if the Mint Street house were sold, another house might be purchased and be given to Lakshmi. Thereupon she, Kathayee, gave Lakshmi to Chockalingam in marriage. That was the ante-nuptial agreement which is alleged by the plaintiff to have been made. A railway company was negotiating for the purchase of the Mint Street house, and purchased it for the price of Rs. 10,315, annas 8 from Chockalingam and Kathayee. and paid the price to them. It is to be presumed that the money then paid by the railway company to Kathayee was, or part of it was, received by her for and on behalf of her grandson Vadivelu, who does not appear to have had any other person to look after his interests.
7. In 1904 Chockalingam had purchased, apparently with his money, houses 12 and 13, Memorial Hall Street, in Madras, and he, in 1909, mortgaged those houses for Rs. 9,000, and their lordships consider it probable that Chockalingam, on May 12, 1909, had other property apart from his interest in the pea dealing partnership and in the Mint Street house, and there is no reason shown why all the purchase money of the property in question was not Chockalingam's own money. Certainly none of it is shown to have been Lakshmi's.
8. Mr. Justice Phillips, who tried the suit, did not believe the evidence that there had been an ante-nuptial agreement, and he found that the purchase of the property in question on May 12, 1909, in the name of Lakshmi was a benami transaction and that she was merely benamidar for her husband Chockalingam. Mr. Justice Phillips in his judgment made a statement with which their lordships agree. He said :-
We do not know what really happened to Vinayatheertha's property when he died or what share he had in the business or whether really he did leave any property which was undisposed of at the date of Lakshmi's marriage. There is no evidence about these facts on either aide though the plaintiffs family ought to know all that can be known about this.
9. It will be remembered that Vinayatheertha had died in 1898 or in 1899, and the property in question was purchased in May 1909. Mr. Justice Phillips rightly found as to the money which was invested in the purchase of the property in question that if the purchase money did not belong to Chockalingam it did not belong to Lakshmi, but belonged to her brother Vadivelu. Mr. Justice Phillips by his decree dismissed the suit. From that decree the plaintiff appealed under the Letters Patent.
10. The appeal under the Letters Patent was heard by Sir W.S. Schwabe C.J. and Mr. Justice Wallace. The Chief Justice stated in his judgment
that 'the question to be decided is whether a purchase of property by one Chockalinga, an insolvent, in the name of his wife, Lakshmi, was a settlement on her on her marriage or was a benami transaction, she being benamidar for him. The evidence called was all on way, namely, that the property was purchased out of funds belonging 6/11 (six-elevenths) to Chocka(sic)