1. Plaintiffs are the appellants in this appeal. The suit is one under Order 21, Rule 63, Civil P. C. and relates to 62 1/2 acres of land at Dolamandap Sahi in the town of Puri with pucca and kutcha structures standing thereon. The facts leading to the suit are as follows :
2. Plaintiffs are the daughters of defendant 2. Defendants 3 to 6 mortgaged the suit property along with other properties to defendant 1 the Puri Bank, by a deed of mortgage dated l0th march 1934, Ex. 6, for a sum of Rs. 25,000. The Bank obtained a decree on the mortgage and brought this property to sale in Execution case No. 1379 of l94l. The plaintiffs intervened with a claim petition on the ground that the suit property belonged to their deceased mother and not to their father defendant 2, that they are entitled to the same as the Stridhan heirs of their mother, and that their father and brothers mortgaged the suit property fraudulently without their knowledge. (It may be mentioned that under the Patna amendment to Order 21, Rule 63. Civil P. C. a claim proceeding can be instituted also in the execution of a mortgage decree.) The basis for this claim by the plaintiffs is the fact that the suit property has been acquired in bits under six successive sale-deeds ranging from 1902 to 1923 all of which stand in the name of their mother who died on 15 February 19(sic)3. The claim was rejected by the executing Court and hence this regular suit by the plaintiffs under Order 21, Rule 63 to establish their right to the suit-property.
3. The case of the plaintiffs is that the various purchases were made with the stridhan money of their mother while it is the case of defendant 1. the Puri Bank that the purchases were made with the money of defendant 2 and that the sale-deeds were taken benami in the name of his wife The learned Subordinate Judge in the trial Court has, after consideration of the evidence and circumstances, accepted the contention of defendant 1 and dismissed the plaintiffs' suit and hence this appeal.
4. The plaintiffs' father, defendant 2 herein, one Banamali Kar, was a native of the village of Chandpur in the District of Cuttack. He was not a person having any substantial ancestral property and appears to have shifted to Puri more than fifty years ago in order to eke out his livelihood. He took up service with a Bengali Lady named Giribala Dasi who was running an excise shop, a cloth shop and a grocery shop in Puri and other excise shops in the mofussil. He seems to have won his employer's confidence fairly early and became her trusted assistant, and in course of time, the management of her excise business and grocery shop appears to have been left in his hands. As early as in 1911, his employer executed a power-of-attorney in his favour including others, vide Ex, 6. He appears also to have been admitted as a partner with her into her business at one time. When for one reason or other the license of the excise shop could not be obtained by his employer, Giribala Dasi, the shop appears to have been run for a year in his name for her. In so far as can be gathered from the material exhibited in this suit, he had made purchases of various items of property between 1910 to 1923 under as many as 14 Sale-deeds and the property so acquired or the price paid therefor was not inconsiderable.
5. The suit properties have been purchased under six sale-deeds of which one dated 6th November 1906 relating to a portion of plot No. 431 has not been exhibited. The other purchases are as follows:
Ext. No. Date of Execution. Plot No. Extent Consideration.(In acres).Ext. 1 ... 16-9-1902 ... 430 .10 390Ext. 1-A ... 18-12-1919 ... 432 .20 600Ext. 1-B ... 22-2-1920 ... 436 .20 350Ext. 1-C ... 6-6-1922 ... Portion of .9 1000(The rest of plot 431No. 431 appearsto have been pur-chased under theunexhibited saledeed dated 6-11-1906) Part of plot No. Ext. 1-D .... 13-9-1923 .... 433 .2 1/2 150
Thus under these six sale-deeds the suit area of 66 1/2 decimals comprised in plot Nos 430, 431, 432 and a portion of plot No. 433 and plot No. 436 along with the pucca and kutcha superstructures standing thereon at the time were purchased for an aggregate consideration of about Rs. 2600. The question for consideration is whether having regard to the evidence and circumstances in this case, these purchases were made by the plaintiffs' mother herself or benami by defendant 2 in the name of his wife.
6. It is necessary to appreciate clearly the principles which have to be kept in view when a question of this kind arises. There can be no doubt that when a plea of benami purchase is raised the ostensible title cannot be displaced except on clear and cogent proof of the benami character of the purchase. The burden of proving this lies on the person asserting the benami character. It is unnecessary to lay down what all circumstances are relevant to make out the benami character of a purchase; but the source of the purchase money has always been considered a primary and crucial factor. The same burden of proof applies equally to a case where a sale-deed stands in the name of a female. There is no presumption in law that merely because the female had a husband at the time of the purchase, the sale-deed must be presumed to be benami for the husband. Neither is there any presumption that a married woman has no funds of her own to be available as consideration for the purpose. The dictum of the Privy Council in Lakshmiah Chetty v. Kothanarama Pillai, A. I. R. (12) 1925 P. C. 181: (48 Mad. 605) and other cases following it which is in the following terms:
'There can be no doubt now that a purchase in India by a native of India of property in 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.'
cannot be, and has not been, taken to mean that such a purchase is to be presumed to be benami, merely because it was purchased during her married status. In order that the above quoted dictum of the Privy Council, may apply, it must be made out as a fact that the purchase was by the husband and that the source of the consideration for the purchase was the funds of the husband. (See Ratanchand Fakirchand v. Deochand Dayabhai A. I. R. (33) 1946 Bom. 157: (223 I. C. 618). But it is also necessary to observe that when considering the question as to the source of purchase money, the matter has to be looked at not necessarily by requiring express and positive proof of the supply of specific funds of the husband or of the wife for the disputed purchase, but proof of the relevant facts with reference to the broad probabilities and the circumstances in the light of the evidence is enough. The position relating to the quantum of proof required in such cases to establish the benami character has been authoritatively laid down by the Federal Court in the latest case reported in Gangadara Aiyar v. Subramania Sastrigal, A.I.R. (36) 1949 F. C. 88: (1946 F. L. J. 90) where their Lordships in an unanimous judgment state the position as follows:
'It is the settled law that the onus of establishing that a transaction is benami is on the plaintiff, the person asserting the benami character and it must be strictly made out. The decision of the Court cannot rest on mere suspicion, but must rest on legal grounds and legal testimony. In the absence of evidence, the apparent title must prevail. It is also well established that in a case where it is asserted that an assignment in the name of one person is in reality for the benefit of another, the real test is the source whence the consideration came and when it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts.'
The evidence and circumstances in this case have to be judged with reference to these standards.
7. There is no direct and express evidence on behalf of defendant 1, the Puri Bank, that the consideration under the various sale deeds actually belonged at the time to defendant 2 or that defendant 2 had specific funds at the time out of which the consideration was in fact paid. [After discussing the evidence the judgment proceeded.] The above review of the facts and circumstances emerging from the evidence establishes (1) that defendant 2 was in possession of substantial funds during the period 1910-1933) when almost the entire investment on the acquisition of the land relating to the suit-houses and the reconstruction of the super-structures there on was incurred. (2) That as a matter of fact he was acquiring substantial properties during that period. (3) The recitals in the sale deeds relating to the suit property show that the consideration therefor in so far as it was by way of set-off of previous debts was that of D-2 and in so far as it was cash, was paid through his hands. (4) It is in a way admitted by the plaintiffs in their plaint that the money required for the very substantial investment by way of reconstruction had its origin from defendant 2. (5) The plaintiffs' case of their mother being in possession of independent Stridhan funds is clearly disproved. Taking all these circumstances together, it is a reasonable inference that the consideration for the various sale-deeds and for the reconstruction of the structures thereupon was supplied completely by defendant 2 and not by the plaintiffs' mother. I have therefore no hesitation in agreeing with the conclusion arrived at by the learned Subordinate Judge that the purchase of the suit-property under the various sale deeds above referred to in the name of the plaintiffs' mother must be taken to have been really made by defendant 2 from out of his own funds.
8. Learned counsel for the appellant however argues that even if it is taken as sufficiently proved that, the consideration for the above sale-deeds and for the reconstruction of the houses thereupon was supplied by defendant 2, it must in the circumstances of this case be taken to be with an intention that the beneficial interest therein should belong to the plaintiffs' mother that is to say that the consideration was provided by way of advancement. It is objected on behalf of the respondents that the question as to whether there was an intention by way of advancement is a question of fact which has not been put in issue at all at the trial and that such a question of fact cannot be permitted to be raised at this stage. It has been pointed out that there is no indication in the plaint of any such alternative case and that the plaint was entirely on the footing that as a fact the consideration for various sale-deeds was actually supplied by the plaintiffs mother and not by defendant 2. The case in Ishan Chunder Singh v. Samachurn, 11 M. I. A. 7 at p. 20 : (6 W. R. 57 P. C.) is cited to show that a question of this kind is not to be allowed to be taken for the first time in the appellate stage. I am not however prepared to overrule the argument of the appellant's counsel on this ground. An argument that even if the purchase money was supplied by defendant 2, the title does not belong to him, is not a mere alternative case. The one and the only question is whether the purchases are benami Defendant 1 seeks to make it out by showing that the funds were supplied by defendant 2. The plaintiffs may disprove it by showing that the intention was to benefit their mother. It appears to me, however, that on the material before us, there is nothing sufficiently to indicate that there was any intention on the part of defendant 2 to purchase the property under the various relevant sale-deeds for the benefit of his wife, once it is found that the purchases were made by him and out of his funds and not by the wife out of her funds. Quite a large number of cases decided by the Privy Council have repeatedly established the proposition that where in India a purchase has been made by a person in the name of his wife or child or other close relation, the presumption is that it was benami and that there is no presumption that the purchase was intended by way of advancement. It is sufficient to refer to the cases in Gopee Krist Gosain v. Gunga Persaud, 6 M I. A. 53 (4 W. R. 46 P. C); Mt. Bilas Kunwar v. Desraj Ranjit Singh, A. I. R. (2) 1915 P. C. 96: (37 ALL. 557); F. J. R. Kerwich v. K. M. Kerwich. A. I. R. (8) 1921 P. C. 56: (48 Cal. 260); Lakshmiah Chetty v. Kothandrama Pillai, A.I.R., (12) 1925 P. C 181 ; (48 Mad. 605) and Guranditta v. T. Ramditta, A.I.R. (15) 1928 P. C.172 (55 Cal. 944). The presumption of no advancement is no doubt a rebuttable one. But there must be proof of some circumstances which would indicate the intention to benefit though no direct proof of the same is necessary. It is no doubt true that as stated in Mahomed Sadiq Ali Khan v. Fakr Jahan Begam, A. I. R. (19) 1932 P. C. 13 at p. 20 : (6 Luck. 556):
'Though there may be no presumption of advancement in such cases in India very little evidence of intention would be sufficient to turn the scale.'
What is the nature of that 'little evidence' which is required to turn the scale can be gathered from a notice of the facts of this very case in Mahomed Sadiq Ali Khan v. Fakr Jahan Begam, A.I.R. (19) 1932 P. C. 13 : (6 Luck. 556) and of a few other cases where the intention of advancement was found as a fact.
9. In Mahomed Sadiq Ali Khan v. Fakr Jahan Begam, A. I. R. (19) 1932 P. C. 13 at p. 20: (6 Luck. 556) the property in dispute was purchased by a Mohammedan in the name of the daughter of his favourite wife. At the time of the daughter's marriage, he sent the deed to the father-in-law of the daughter for his inspection representing it as her property. It was held that this was sufficient evidence of his intention that the purchase was for the benefit of his daughter, Shambhu Nath v. Pushkarnath, A. I. R. (32) 1945 P. C. 10 : (I. L. R. (1945) Kar. P. C. 168) is a case of deposits by the deceased in the bank in the joint names of himself and his close relations. Some of his near relations were destitute widows and others were Pardanashin ladies. Their Lordships held that these circumstances were sufficient to lead to an inference that the deposits were for advancement and that it was unlikely that the deceased chose the names of such persons as joint holders of the deposits benami. In Manmohan Das v. Mt. Ram Dei, A. I. R. (18) 1931 P. C. 175: (134 I.C. 669) there was a deed of gift executed by a recently married husband in the name of his minor wife. The deed itself recites the fact of the recent marriage, the minority of his wife and the advice of his relations and his own desire to make arrangements for his wife's maintenance. It was also in evidence that the husband had led a somewhat extravagant life prior to marriage and that the property covered by the deed of gift was his sole remaining asset. It was held by their Lordships of the Privy Council that the deed must have been meant by way of advancement.
10. Learned counsel for the appellants relied strongly on a case in Sitamma v. Sitapati Rao, A. I. R. (26) 1938 Mad. 8 : (I. L. R. (1938) Mad. 220). In that case it was found that a person made an adoption and that various properties were purchased in the name of his wife. The adoption deed itself suggested the possibility of strained relations between the adopted son and the adoptive mother. It was held that it was not unlikely that the purchase in the name of the wife with the funds supplied by the husband was meant to be for the benefit of the wife. It was also further found on the facts that subsequent dealings with the property were on the footing of recognising the ownership and the possession of the wife. In the case their Lordships of the Madras High Court say :
'The mere suspicion that the purchases might not have wholly been made with the lady's money will certainly not suffice to establish that the purchases were benami, nor even the suspicion that moneys belonging to the husband, whether in a smaller measure or a larger measure, must have also contributed to these purchases. Even in cases where there is positive evidence that money had been contributed by the husband and not by the wife, that circumstance is not conclusive in favour of the benami character of the transaction, though it is an important criterion. It is true that in the Indian law the English rule as to presumption of advancement has not been adopted, but Schedule 2, Trusts Act, recognises that money may have been contributed by another, towards a purchase with the intention of giving a beneficial interest to the person in whose name the purchase is made. The relationship of husband and wife between the parson who contributes the money and the person in whose name the sale is taken will be a very important factor in determining whether the transaction was really meant for the benefit of the wife or not.'
As already stated above, the facts and circumstances of that case were such as to render it very probable that the benefit of the wife was specifically intended.
11. In the present case, the only circumstances that may be relied on in favour of an intention to benefit the wife by these purchases are if at all the following:-In 1903 to 1904, plot No. 430 purchased under the sale-deed Ext. 1 was mutated in the name of the plaintiffs' mother, vide, Ext. 2. In 1920-21 plot No. 436 purchased under sale-deed, Ext. 1-B was mutated in the name of the plaintiffs' mother, vide Exts. 2-A and 3 -B. For the purchase under Ext. 1-C of portion of plot No. 431, the mutation, in the plaintiffs' mother's name was effected in 1922, vide Ex. 3. It is also in evidence that in the Puri Municipal Survey records, Ext. 4, prepared some time before 1922, the name of the plaintiffs' mother is recorded in respect of plot No. 433, with an extent of 14 acres showing her as the owner, thereof. It is also in evidence that when the application for sanction of the plan of the two storied building to be reconstructed on the suit-site was made and sanctioned in 1932, under Ext. 7, the building was stated to be that of Gouri Debi. On the other hand, however, there is absolutely no evidence of any possession or enjoyment by the. plaintiffs' mother during her lifetime or by the plaintiffs at any time prior to the date of the suit which was filed in 1944, since the date of their mother's death in 1933. It is also admitted by the plaintiffs in para. 18 of the plaint that the sale deeds relating to the suit property were in the custody of defendant 2 and that the municipal assessments were also in his name. The mutation proceedings and the entry in the municipal survey record following almost immediately on the execution of the respective sale deeds was a matter of course and are not by themselves any indication of intention of defendant 2 that the purchases were meant to be for the benefit of his wife. The application for sanction of the plan for reconstruction of a two-storied structure cannot also be sad to be of any significance in the face of the admitted fact that municipal assessments were all in the name of defendant 2 himself. It is no doubt true as pointed out in Girija Kumari v. Kiran Chandra, A. I. R. (34) 1947 Pat. 471: (26 Pat. 253) that
'where a sale-deed alleged to be benami is taken in the name of a female member of the family definite evidence of subsequent possession by that female member is somewhat difficult.'
12. But where as in this case the evidence and the circumstances point to a conclusion that the source of the purchase money was supplied by the husband, more satisfactory evidence of circumstances leading to the conclusion that there was an intention of beneficial advancement is required. The only other circumstances that have bean pointed out and relied upon on behalf of the appellants are that the last lease-deed, Ex. 1-D for Rs. 150 in terms recites that the consideration paid was Strirthan amount of the wife and it is also pointed out that during the course of the 20 years between 1910 to 1933, when defendant 2 made as many as eighteen purchases only these four all of which relate only to a particular residential house were purchased in the name of the wife and that the earliest purchases under Ex. 1 is of the year 1902 some years before the purchases in the name of defendant 2 himself appears to have started. The recital that the money supplied under Ex. 1-D was Stridhan cash of the plaintiffs' mother was no doubt a relevant factor in considering the question as to whether the money supplied for that or earlier purchase was that of defendant 2 or of planitiff's mother. But once a conclusion on that matter has been reached against the plain, tiffs, it appears to me that a recital of that kind in the sale-deed relating only to a very small extent out of the total extent of the property and to a comparative small sum of Rs. 160 out of the total investment of over ten thousand is not enough to indicate any clear intention on the part of defendant 2 that the various purchases ranging from 1902 to 1923 were all meant for the benefit of the wife. On the other hand there are not in this case as in the cases in Sitamma v. Sitapati Rao, A. I. R. (25) 1938 Mad. 8:(I. L. R. (1938) Mad. 220); Mahomed Sadiq Ali Khan v. Fakr Jahan Begam, A.I.R. (19) 1932 P. C. 13 : (6 Luck. 566) and Shambhu Nath v. Pushkarnath, A.I.R. (32) 1945 P. C. 10 (I. L. R (1946) Kar. P. C. 168), proof of any outstanding circumstances which would have rendered it prima facie probable that the husband would have intended to make these various purchases for the purpose of providing for his wife. It is to be noticed that the very first purchase on record is in the name of the wife and the other disputed purchases all relate to the residential house in which he was living all along it is more likely than not that these purchases at that time were intended for his own benefit. It is most unlikely that a person like him succeeding in business and investing his moneys in the purchase of site and construction of structure constituting his residential house in which he happens to be living all the time would have intended that the same is not to belong to himself, but to his wife. It is not possible and it is unnecessary to speculate what might have been the reason for his making these purchases in the name of the wife or for making specific recital in the last only of the disputed purchases that the consideration therefor was stridhan money of the wife. On a consideration therefore of the entire circumstances and evidence in this case, I have come to the conclusion that there is no sufficient evidence in this case of circumstances probablising any positive intention on the part of defendant 2 of making these purchases for the benefit of his wife. I agree therefore with the conclusion of the learned Subordinate Judge that the suit property stood benami in the name of plaintiffs' mother and that it belonged in fact to defendant 2 and his sons defendants 3 to 6 at the time of the mortgage to defendant 1.
13. In the result, therefore, the plaintiffs' suit must fail and the appeal must be dismissed, with costs.
14. I agree.