1. This appeal arises out of a suit for declaration brought by Mt. Jamna and Ram Katori. The latter is the daughter of Mt. Saraswati. The property in dispute is a certain house which was purchased in 1916 in the names of Mt. Jamna and Saraswati who has since died and is now represented as regards her 'stridhan' property, by her daughter Katori one of the two plaintiffs. The plaintiffs' case was that the house purchased under the sale referred to above belonged to the vendees and that it was not liable to be attached and sold in execution of a decree obtained by the appellant, Hira Lai, against Daryao Singh, husband of Mt. Saraswati, and his son Bam Sarup, husband of Mt. Jamna, the other plaintiff. Hira Lal pleaded that the house was purchased by his judgment-debtors 'benami' in the names of their wives. The trial Court gave effect to this plea and dismissed the suit. On appeal by the plaintiff the lower appellate Court took a contrary view and decreed the suit.
2. The sole question in the case was one of fact. If the sale-deed in question represented a 'benami' transaction in which the real purchasers were Daryao Singh and Ram Sarup and the ostensible vendees were mere 'benamidars' for them, the plaintiffs' suit is liable to be dismissed. The learned Subordinate Judge, who heard the appeal, started with the presumption that the ostensible owners are real owners, unless the contrary is proved. Exception is taken by the learned advocate to the proposition of law involved in that view. The learned Judge then observed that the contesting defendants produced no evidence of any kind to rebut the presumption arising from the apparent tenor of the deed except the fact that the husbands lived with their wives in the same house, a fact which the learned Judge rightly disregarded as inconclusive. Wholly apart from the question of onus, and assuming that it lay on the plaintiffs in spite of a registered sale-deed in their favour, the learned Judge found, on evidence, that one of the ladies, namely, Mt. Saraswati, had funds of her own, which she bad received from her father's assets and with which she carried on money lending business, and that she purchased the house with funds belonging to herself.
3. In my opinion this appeal must fail, on two grounds. In the first place, the decision of the lower Court proceeds on a correct view of law. I agree with it in holding that, on proof of a deed which on the face of it is in favour of the plaintiff, the onus of proving the 'benami' character of the transaction lies on the defendant, who alleges it. It is argued by the learned advocate for the appellant that, where property is purchased in the name of a man's wife, the presumption is that the real purchaser is the husband. Reliance is placed on Lakshmiah Chetty v. Kothandarama Pillai 1925 P.C. 181 in which their Lordships of the Privy Council are reported to have held that a purchase in India by a native of India of a property in India in the name of his wife unexplained by either 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.
4. This dictum should not be taken apart from the context in which it occurs. The facts of that case have an important bearing on the question whether their Lordships laid down the proposition contended for before me. The facts may be stated in their Lordships' own words:
The land and buildings then thereon were purchased by Chockalingam on 12th May 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 defends 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 wag made in her name as benamldar for Chockalingam.
5. It will appear that it was the case of both parties that the actual purchase had been made by Chockalingam, who took the sale-deed in the name of his wife. One of the parties alleged that the intention of Chockalingam in so doing was to purchase the property for the benefit of his wife in performance of an ante-nuptial agreement. The other party alleged that his intention was to be himself the owner of the property, the apparent vendee being his benamidar. On those pleadings their Lordships threw the onus on the party which maintained that Chockalingam purchased it for the benefit of his wife. In the case before me there is not the slightest evidence that Daryao Singh and Ram Sarup negotiated the sale or had any hand in the purchase of the house in the names of their wives. It is not admitted by the plaintiffs that Daryao Singh or Ram Sarup had anything to do with the transaction. If the contesting defendant bad established that Daryao Singh and Ram Sarup settled the transaction with the vendor and had the deed executed in the names of their wives, they might have re-shifted the burden on to the plaintiffs. This however has not been done and in my opinion the ordinary rule that a deed must in the absence of evidence to the contrary prevail according to its apparent tenors should be given effect to. Another ground on which this appeal must fail, is that the lower appellate Court has found on evidence, wholly apart from onus and on the assumption that it lies on the plaintiffs, that the funds, with which the properties in dispute were purchased, belonged to one of the ladies. This is a finding of fact, supported by evidence, and cannot be questioned in second appeal. The result is that the appeal fails and is dismissed with costs. As one of the grounds on which this appeal is dismissed is that it is concluded by a finding of fact, I decline to grant leave to appeal under the Letters Patent.