S.C. Manchanda, J.
1. This is a revision by the plaintiff against the order of the Civil Judge dated the 18th of September 1963, releasing the house from attachment under the provisions of Order 38 Rule 8 of the Civil Procedure Code.
2. The plaintiff had filed a suit on the 19th of March 1963, for recovery of a sum of Rs. 69,000 against Mr. J. N. Sinha opposite party No. 2. On the same date an application under Order 38 Rule 5 of the C. P. C. was filed praying for attachment of the only house possessed by the said opposite party No. 2 in Tagore Town. The house was attached and a notice issued. On the 5th of April 1953, Mrs. Sinha, the wife of the opposite party No. 2 filed an objection to the attachment on the ground that she was the owner of the said house in possession. The reply of the plaintiff applicant was that she was only a benamidar for her husband. The opposite parties did not go into the witness box. Evidence was given only by the brother of Mr. Sinha to order to prove the source of the purchase price for the impugned and which was purchased on the 2nd Septem-ber 1960. The trial Court was not inclined to believe this evidence and observed:--
'I agree with him that had this been a suit there was a strong presumption of these transactions being Benami.'
But he went on to hold that the proceedings under Order 38 Bule 5 being summary proceedings the question of benami could not be gone into in these proceedings. A finding was given that as the title deeds were in favour of Mrs. Sinha, she had established that she had some interest in the house at the time of attachment as required by Order 21 Rule 59 C. P. C. On the question of possession it was found that the house in dispute was occupied both by the objector and her husband and that as the title deeds were in favour of the claimant it will be deemed that it is the claimant who is in possession unless it is held that the defendant opposite party was the real owner and the objector was only a Benamidar. He, accordingly, held that the objector Mrs. Sinha had proved her prima facie title and possession and the house was, therefore, released from attachment. Hence this revision.
3. It has been strenuously contended on behalf of the plaintiff-applicant that the approach of the Civil Judge was erroneous. The main question to be determined was of possession and no olear finding on that question having been given the secondary question as to whether the objector had some interest in the property attached ought not to have been gone into, and, if it could have been gone into the trial Court was bound to go into the question of Benami as then only could the real interest and not the apparent or ostensible interest of the objector be established.
It was further contended, relying upon the Juris Secundum, Volume 41 at page 497 that
'when the husband and wife lived together, the house in which they lived is in the legal possession of the husband as the head of the family.'
From this it was argued that as it had been found by the trial Court that the husband and wife were jointly living in a part of this house and the rest was in the occupation of tenants the legal possession should have been presumed to be that of the husband and thereupon it became incumbent upon Mrs. Sinha, the claimant to establish that she had some interest in this property.
Reliance was also placed on a decision of the Judicial Committee in Gopeekrist Gosain v. Gunga Persaud Gosain, (1854) 6 Moo Ind App 33 (PC), for the proposition that the practice of purchasing property benami in the name of a member of the family is very widely prevalent in India and that once it is established that the transaction is benami the circumstance of the receipt being in the name of the benami-dar proved nothing. They would be only in accordance with benami usage.
4. There is really no quarrel with these propositions but the real question which arises in this case is whether In summary proceedings the question of benami must necessarily be enquired into The scope of enquiry under Order 38 Rule 5 is the same as under Order 21 Rule 59 of the Code. What the claimant objector is required to establish is that she had some Interest or was in possession of the property on the date of the attachment. If any one of these conditions is established then the burden would shift to the decree holder to prove that the objector was not the owner or that it was being held in trust for the judgment debtor. The Legislature has used the words 'some interest' in Order 21 Rule 59 and this can only mean such interest as would make the possession of the judgment debtor, possession not on his own account but on account of or In trust for the claimant, It has been repeatedly held that proceedings under Order 21 Rule 59 are summary proceedings as distinct from a suit under Rule 63. In these proceedings only a prima facie case requires to be made out by the claimant or objector. Generally speaking an enquiry as to title of the claimant or objector would be outside the scope of Order XXI Rule 59.
5. On the basis of the following observations of the Judicial Committee in Sardharilal v. Ambika Pershad, (1888) 15 Ind App 123 at p. 126 (PC).
'That the Code does not prescribe the extent to which the investigation should go and though in some cases it may be very proper that there should be as full an investigation as if a suit were instituted for the very purpose of drawing the question, in other cases it may also be the most prudent and proper course to deliver an opinion on such facts as are before the Subordinate Judge at the time, leaving the aggrieved party to bring the suit which the law allows to him. However that may be (and their Lordships did hot desire to pronounce any opinion as to the extent of any investigation that is required under the Code) in this case the order was made; and it was an order within the jurisdiction of the Court that made it. It is not conclusive; a suit may be brought to claim the property notwithstanding the order.'
it was urged that in the special circumstancesof the present case the question of Benami alsorequired to be gone into and the failure of thetrial Court to go into that question was failure)to exercise jurisdiction.
6. It is no doubt true that the Judicial Committee did not lay down the limits of the investigation that could be carried out under Order 21 Rule 59. But almost all the High Courts have since laid down the ambit and scope of such an enquiry. There is well high a unanimity among all the High Courts that the question of Benami cannot be gone into in a summary enquiry under Order 21 Rule 59 C. P. C.
In Protiva Sundari Choudhury v. Reliance Bank Ltd., (1948) 52 Cal WN 56, Harries C. J. in a revision by the objector interfered in a case where the trial Court had elaborately gone into the question of the Benami nature of the transaction and had given a finding that the objector was a Benamidar for her family. Notwithstanding such a clear finding of Benami against the claimant-objector the learned Chief Justice found it impossible to ignore earlier decision not only of the Calcutta High Court but also of the Patna High Court and therefore found himself compelled to allow the revision and release the property of the objector from attachment.
In that case a reference was made to a decision of Fazl Ali J., as he then was, in Ganesh Lal Sarawagi v. Mahabir Sahu, AIR 1929 Pat 273, where it was laid down that the Court in proceedings under Order 21 Rule 58 was not entitled to go into the question of Benami. This decision was based on an earlier decision of the Patna High Court in Ram-kishun Singh v. Damodar Prosad, AIR 1924 Pat 506. Amir Ali J. of the Calcutta High Court in Butto Kristopaul and Co. Ltd. v. Harendra Nath Ghose : AIR1937Cal639 , was faced with a similar difficulty and though he was satisfied that the transaction was benami, yet, as the suit before him was not a title suit but only an objection tinder Rules 59 and 60, he was compelled to allow the claim. A Division Bench of the Calcutta High Court, in Tamluk Loan Office Co. Ltd. v. Kedar Nath : AIR1952Cal768 , held that the question of title in respect of promissory notes could not be investigated on a claim filed under Order 38 Rule 8, as prima facie, the bills stood in the names of opposite parlies Nos. 1 and 6.
The Bombay High Court in Nalinilcant Bhannshanker Dave v. Hiralal Amratlal : AIR1959Bom87 , and our High Court in Bachu Lal v. Ram Din : AIR1939All117 , and Parthe-shwar Narain Singh v. Rangnath, 1960 All LJ 79 at p. 82, would appear to have taken a similar view. Therefore, it must be held that the question of Benami cannot ordinarily be gone into in proceedings under Order 38 Rule 5 or Order 21 Rule 58 of the Code.
7. It was next contended that even if that be the correct state of the law it would not .apply to the case of property acquired during the coverture by the wife and in such a case it would be incumbent upon the Court, in proceedings under Order 2,1 Rule 58 of the Code to go into the question of Benami and determine it. There is no warrant for placing the case of Benami between husband and wife on a different footing from any other benami transaction. The ingredient which requires to be proved in all transactions alleged to be Benami is the source of the funds for the acquisition of the property and that remains the same whatever is the relationship of the parties. In Corpus Juris Secundum Vol. 41 page 496, it is stated.
'The legal presumption is that the possession of land by husband and wife is the possession of the one in whom is the legal title. . Where the legal title is in the wife, the possession is proved to be hers even though the husband exercises acts of control over or management of the property as long as he asserts no independent exclusive possession in himself.'
In Smt. Sunder Devi v. Jhabboo Lal : AIR1957All215 , it was laid down-
'There is no presumption that the property owned or held by a woman necessarily belongs to her husband or that the funds for the acquisition of such a property had been supplied to her by her husband or by somebody else,'
In the ultimate analysis where a husband and wife are both occupying a portion of the residential house and the remaining portion is occupied by tenants who attorn to the wife it would be difficult, if not impossible to raise the presumption that the house in dispute is in the possession only of the husband, judgment debtor, and not also in the possession of- the wife. In each case when the question of Benami is raised between the husband and wife if the latter establishes, as she has in the present case, that there is a registered sale deed in her favour she will have prima facie established that she had 'some interest' in the property to justify its release in her favour. In such circumstances, the proper course open to the plaintiff will be to file a regular suit.
8. For the reasons given above the revision application is dismissed. In the circumstances of the ease however there will be noorder as to costs.