1. The facts of this case sufficiently appear in the order of this Court of the 8th of January 1909. On the hearing of the appeal we thought it necessary to refer to the Court below for determination of certain issues, and accordingly the two following issues were referred, namely, (1) Whether the transfer of the 6th of December 1904 was a real transaction or merely colourable? and (2) Was the defendant Nazirunnisa a transferee of the property comprised in that transfer in good faith?
2. The transfer of the 6th of December 1904 was made by the husband of the parties in satisfaction of the dower debt of the defendant Nazirunnisa, stated to amount to Rs. 20,000. In the plaint the plaintiff alleged that this amount was not the true amount of the dower, but that the dower of Nazirunnisa was only 500 dirhams, equivalent to about Rs. 107. It has been found by the Courts below that Rs. 20,000 was the amount of the defendant's dower. The lower appellate Court found that the transfer in question was a real transaction and not colourable, but upon the second question the learned Judge came to the conclusion that if the burden of proving that the transfer in question was made in good faith lay upon the defendant, she had failed to prove the bona fides of the transaction. In an earlier part of the judgment the learned District Judge says that if the onus of proving the mala fides of the transaction lay on the plaintiff, he could be obliged to hold that she had failed to prove that Nazirunnisa had obtained the transfer in bad faith. The question then is whether the learned Judge was right in throwing the onus of proof upon the defendant. We are of opinion that he was clearly in error in so doing. A plaintiff, who comes into Court and alleges fraud, must prove the fraud. In this case there being no evidence in proof of the alleged fraud, the plaintiff's claim was properly dismissed. We may moreover point out that the inference of fraud which was drawn by the lower appellate Court is not justified by the facts. The learned Judge says that the defendant could not have taken the property in good faith because she has been living with her husband most peaceably for at least two years preceding the date of the transfer in her favour. His inference is that because the husband and wife were living peaceably for two years prior to the transaction, they must have 'combined to frustrate the object for which the first wife had obtained a decree against her husband.'
3. From the mere fact that the defendant and her husband were living peaceably together, it cannot be inferred that the transfer made by the husband to satisfy the dower debt was a collusive transaction, as the learned Judge seems to think. In view, however, of the finding that the plaintiff had failed to prove that the defendant transferee took the property in bad faith, the claim of the plaintiff was bound to fail. We, therefore, dismiss the appeal with costs including fees in this Court on the higher scale.