Jagannatha Shetty, J.
1. This appeal has been preferred by plaintiff challenging the decree and judgment in O.S. 34 of 1970 made by the Civil Judge, Mandya.
2. The facts are these :
Hutchamma plaintiff is the legally wedded wife of the defendant. They are even otherwise closely related, but un-fortunately their married life appears to have left a lot of bitterness, even after two issues were born.
Channegowda alias Doddahydegowda was the father of plaintiff. He died in the year 1947 or 1948. He left behind him his widow Ningamma, mother Kempamma and plaintiff who was then about six years. Doddahydegowda also left*R.F.A. No. 121 of 1975 dated 28th May 1985behind some properties consisting of 1 acre 25 guntas of wet land, 2 acres 16 guntas of dry land and two houses. After the death of Doddahydegowda, since there was no male member to manage these properties, Ningamma brought her own brother-defendant to live with her and to manage the properties. The defendant accordingly lived with Ningamma and he became so close that he was even married to the defendant.
3. On April 11, 1951, Ningamma and Kempakka jointly executed a deed termed as settlement deed settling the family properties equally on plaintiff and the defendant. The conferment of property rights on third party generally brings out more bitterness than happiness. It has become true in the family of this plaintiff. The relationship between plaintiff and the defendant became so strained that they even parted company with each other.
20. On August 20, 1970, plaintiff brought the suit with the following averments:
Plaintiff's mother had reposed full confidence on the defendant. He was managing the entire estate of Doddahyde-gowda. After the marriage of plaintiff, the mother of plaintiff expressed her desire to settle the estate of Doddahydegowda in favour of plaintiff, but the defendant, by committing fraud and misrepresentation, got his name included in the settlement deed as beneficiary to one half of the 'A' schedule properties to the plaint. The said proper-ties are very valuable and yielding good income. The surplus income therefore was utilised for purchasing the 'B' schedule properties in the name of the defendant. The purchases in the name of the defendant were nominal and benami but whose properties really became accretions to the family estate. With these allegations, plaintiff has sought for a declaration that the settlement deed dated April 11, 1951, in so far as it relates to half share given to the defendant in the 'A' schedule properties was vitiated by fraud andmisrepresentation. She has also sought for a declaration that she is the real owner of the 'B' schedule properties. She has further prayed for a permanent injunction against the defendant from interfering with the possession of oralienating or in any way dealing with the plaint properties.
5. The defendant resisted the suit contending inter alia :
The defendant was in possession and enjoyment of the properties given under the settlement deed dated April 11, 1951. There was hardly any income from those properties. The defendant, however, borrowed some money andpurchased 'B' schedule properties and they are his self-acquisitions. Willingly plaintiff's mother settled all the 'A' schedule properties, except the land in S.No. 67/5 in favour of the defendant and plaintiff and put the properties in possession and enjoyment of the defendant. Plaintiff was minor at the time of her marriage. The defendant being the legal guardian of his minor wife took possession of her share in the properties given to her under the settlement. He was cultivating the lands and maintaining the family. With these and other allegations, the defendant prayed for dismissal of the suit.
6. Arising out of the pleadings, the Trial Court framed the following issues:
(1) Whether the settlement deed dated 11-4-1951 in favour of the defendant relating to half share in the A schedule properties executed by the mother of the plaintiff is vitiated by fraud and misrepresentation ?
(2) Whether the purchase of the B schedule property by the 2nd defendant was nominal and benami in nature ?
(3) Whether the B schedule properties are the self-acquisitions of the defendant ?
7. Plaintiff has examined six witnesses including herself as PW-4. Her mother has been examined as PW-6. Her grand mother was dead by the time the suit came for trial, Plaintiff has also produced as many as 35 exhibits. The defendant in turn has examined 8 witnesses including him-self as DW-4. He has produced in all 11 exhibits.
8. The Trial Court upon, considering the evidence produced by the parties, upheld the validity of the Settlement Deed on the following reasons :
Plaintiff has failed to prove that the settlement deed was vitiated by fraud and misrepresentation. Plaintiff's mother was a limited owner. She had therefore no right to dispose of the 'A' schedule properties without assent of the next reversioner. Since the properties were settled on plaintiff who was the next reversioner and also on her husband who was managing the properties, plaintiff must be held to have acquiesced in the disposition in favour of her husband. The settlement deed, therefore, must be held to be binding on plaintiff.
With regard to the 'B' schedule properties, the Trial Court held as follows :
The case of the defendant that he purchased the 'B' schedule properties by borrowing money from third parties could not be accepted. Since he was managing the 'A' scheduleproperties, he might have purchased the 'B' schedule properties out of the income derivedthere from, but it cannot be said that those purchases were benami. At the most, plaintiff could file a suit claiming half share in the 'B' schedule properties on the ground that she was also one of the co-owners of the 'A' schedule properties the income of which was utilised for acquisition of the 'B' scheduleproperties. With these conclusions, the Trial Court dismissed the suit.
Challenging the correctness of the conclusions reached by the Trial Court, plaintiff has preferred this appeal.
9. During the pendency of the appeal, the appellant died her two minor sons have been brought on record with their grand-mother as next-friend. Unfortunately, we have no assistance from any person on behalf of the appellant. Since the minors' interest is involved in this appeal, we have carefully examined the records with the assistance of Sri Gundappa, Learned Counsel for the respondent.
10. Upon perusing the material on record and after hearing Sri Gundappa, the following points arise for our consideration:
(1) Whether plaintiff has established that the settlement deed Ex. P-21 to the extent of one-half share in the 'A' schedule properties conferred on the defendant was vitiated by fraud and misrepresentation ?
(2) Whether the settlement deed Ex. P-21 conferring one half share in the limited estate on the defendant was legal and valid ?
(3) Whether plaintiff is the real owner of the 'B' schedule properties and the defendant was only a benamidar ?
We now take up these points in turn.
11. Re. Point No.(1) : - Plaintiff has alleged in the plaint that the settlement deed Ex. P-21 was vitiated by fraud and misrepresentation, but she has not averred in the plaint, the nature of any fraud, or the particulars of anymisrepresentation made. Order VI Rule 4 of the Code of Civil Procedure requires that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary such particulars shall be stated in the pleadings. The plaint is totally silent in regard to particulars of fraud and misrepresentation with which Ex. P-21 was said to have been vitiated. In what manner plaintiff was defrauded or in what manner plaintiff's mother was misrepresented in giving half share in the 'A' schedule properties in favour of the defendant ought to have been set out with reasonable clarity in the plaint. When, the pleading is silent in regard to such material particulars, no evidence could amplify or substitute the pleading. Not that there is any such evidence in this case. Plaintiff and her mother did not even whisper about the fraud ormisrepresentation vitiating the execution of Ex. P-21. The evidence of plaintiff's mother who is the only competent witness to speak about the execution of Ex. P-21 suggests to the contrary. To be more precise, she has stated :
'After two years of my husband's death, my daughter was given in marriage to defendant. After one year of the marriage, myself and my mother-in-law have executed a settlement deed in favour of my daughter and defendant dated 11-4-1951, as per C. copy Ex. P-21. After executing the original of Ex. P-21 we all lived happily. My daughter gave birth to two male children. All the management of the properties was looked after by defendant.'
'....... the settlement deed was on our instructions.'
This evidence suggests that Ex. P 21 was executed willingly and voluntarily and we cannot therefore hold that it was vitiated by fraud or misrepresentation.
12. Re. Point No. 2 : - Plaintiff might not have been able to prove that Ex. P-21 was vitiated by fraud or misrepresentation to the extent that it disposes of one half share in favour of the defendant. Her knowledge in regard to the circumstances under which the properties were disposed of by her mother could be taken as perfunctory since she was then a minor. But, that does not mean that the defendant could walk away with the half share in the 'A' scheduleproperties. It is not in dispute and indeed cannot be disputed that the plaintiff's mother was not the full estate holder. She had only a limited estate in the 'A' schedule properties. Section 16 of the Mysore Hindu Law Women's Right Act, 1933 (Mysore Act No. X of 1933) which is relevant to the present case, provides that a female takes a limited estate in the properties except in her Stridhana properties. Section 18 of the said Act provides that a female having only a limited estate in any property is not entitled to alienate the property or any portion thereof for any period extending beyond the termination of her limited estate, except incases where the alienation is made for a necessary purpose, or is assented to, ratified, or intentionally acquiesced in by the nextreversioner. The Trial Court has proceeded on the ground that plaintiff had acquiesced in the execution of the settlement deed and for giving half share to the defendant. This conclusion to say the least, is not only perverse, but also un-understandable. Firstly, thereis no evidence regarding the assent expressly or impliedly given by plaintiff. Secondly, plaintiff was incompetent to give her consent since she was a minor on the date of execution of Ex. P-21 and her consent, if any, was, therefore, irrelevant. Therefore, the settlement deed Ex. P-21 to the extent that it confers one half share in the 'A' schedule properties on the defendant should be regarded as invalid, void and inoperative.
13. Re. Point No. 3 :- This question relates to 'B' schedule properties and the nature of the transactions by which they were purchased. The question is whether they were benami transactions. These properties consist of small bits purchased by the defendant on different occasions from 1953 to 1963 for consideration of small sums either Rs.100/-, Rs.200/-, Rs.400/- or Rs. 500/-. The case of plaintiff was that the 'B' schedule properties were purchased out of the excess income derived from the 'A' schedule properties. The defendant, however, contended that he had purchased the 'B' schedule properties by borrowing money from third parties. In support of his contention, he has examined Ningegowda @ Mogegowda DW-1, Bommegowda DW-2, Kempamma DW-3, Channaiah @ Chikkaiah DW-5,Dasegowda DW-6, Kempamma DW-7 and Ningamma DW-8. All these witnesses have stated that the defendant had borrowed the money from them under documents which they have produced and marked as Ex. D-l to Ex. D-ll. We have Closely perused these documents. some of them may be genuine, but the borrowings made under the said documents appear to have no relation with the time of purchases made by the defendant, except perhaps with one transaction under Ex.P-20. But it is not necessary to investigate the correctness of the contention of the defendant. It is for plaintiff to prove that the defendant was a benamidar in respect of 'B' schedule properties, although they stand in his own name. It is for her to prove that the consideration or the price money for the purchases was paid by her and not by the defendant. In Sree Meenakshi Mills Ltd. -v.- I.T. Com-missioner, : 1SCR691 ; the Supreme Court observed :
'In this connection, it is necessary to note that the word 'benami' is used to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies a transaction which is real, as for example, when A sells properties to B but the sale deed mentions X as the purchaser. Here the sale itself is genuine, but the real purchaser is B, X being the benamidar. This is the class of trans-actions which is usually termed as benami. But the word 'benami' is also occasionally used, perhaps not quite accurately, to refer to a sham trans-action, as for example, when A purports to sell his property to B without intending that his title should cease or pass to B, The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named in the deed is the real transferee or B, to enquire into the question as to who paid the consideration for the transfer, X or B. But in the latter class of cases, when the question is whether the transfer is genuine or sham, the point for decision would be, not who paid the consideration but whether any consideration was paid.'
To prove a purchase to be a benami one, it must therefore be shown that the funds with which the purchase was made were exclusively the funds of the person alleged to be the real owner of the property. There is no presumption of advancement or against apparent ownership. There is no such presumption even in between the wife and husband. The onus lies on the party alleging it to make out that the transaction was benami. The determination of this question depends not merely on the oral evidence but also on other circumstances, such as the intention of the parties.
14. Plaintiff and her mother have stated that the 'B' schedule properties were purchased out of the excess income derived from the 'A' schedule properties. Assuming it be so, although there is no acceptable evidence, the purchases by the defendant would not render them selves benami. The defendant was in possession of and managing the entire 'A' schedule properties. He was receiving the income therefrom as adefector manager. Even if he had saved some income and utilised the same for purchasing the 'B' schedule properties, they would not become benami. The Trial Court, in our opinion, was justified innegative the declaration sought by plaintiff in regard to 'B' schedule properties.
In the result, the appeal is allowed in part. The judgment and decree of the Court below are modified. The settlement deed Ex. P-21 to the extent it confers one half of the plaint 'A' schedule properties to the defendant is void and unenforceable. In other respects, the decree of the Court below is kept undisturbed.