Narayana Pillai, J.
1. This is a reference under Section 27(3) of the Wealth-tax Act, 1957, hereinafter referred to as the Act, arising out of the wealth-tax assessment of the assessee for the assessment year 1962-63 for which the corresponding valuation date is August 16, 1961.
2. The dispute involved in the reference relates to whether an amount of Rs. 19,438 being the value of a property standing in the name of the assessee's wife is includible in the net wealth of the assessee.
3. The facts can be summarised in this way : The property was purchased by the assessee's wife on June 12, 1951, for Rs. 17,750. It was the assessee who paid the whole consideration for the sale. He included the value of the property in his previous wealth-tax returns and the income from the property in income-tax returns. In his return for the relevant assessment year he showed the value of the property as Rs. 19,438 but claimed exemption under Section 4(4) of the Act. According to him it was on account of a mistake that he happened to include the value of the property and the income from it in his previous returns.
4. The Wealth-tax Officer rejected the assessee's claim. That decision was upheld by the Appellate Assistant Commissioner of Wealth-tax in the appeal filed before him by the assessee. In his order the Appellate Assistant Commissioner found that the sale deed for the property was one taken by the assessee in his wife's name benami for himself. From that order the assessee unsuccessfully appealed to the Appellate Tribunal. It was thereafter that this reference has been made.
5. The assessee in including the value of the property in his return for the relevant assessment year proceeded upon the assumption that the property was one transferred by him in the name of his wife and so it came within Section 4(1)(a)(i) of the Act but he was entitled to exemption as itfell within Section 4(4) of the Act. The revenue took the stand that the assessee's wife was only a benamidar for the assessee. The Appellate Tribunal and the subordinate authorities disallowed the exemption claimed by the assessee on the ground that the assessee was the real owner of the property. Under Section 3, the charging section in the Act :
'Subject to the other provisions contained in this Act, there shall be charged for every assessment year commencing on and from the first day of April, 1957, a tax (hereinafter referred to as wealth-tax) in respect of the net wealth on the corresponding valuation date of every individual, Hindu undivided family and company at the rate or rates specified in the Schedule.'
6. Section 4 of the Act, so far as is for the moment relevant, reads:
'4. (1) In computing the net wealth of an individual, there shall be included, as belonging to that individual--
(a) the value of assets which on the valuation date are held--
(i) by the spouse of such individual to whom such assets have been transferred by the individual, directly or indirectly, otherwise than for adequate consideration or in connection with an agreement to live apart, .........
(4) Nothing contained in Clause (a) of Sub-section (1) shall apply to any such transfer as is referred to therein made by an individual before the 1st day of April, 1956, and the value of any assets so transferred shall not be included in the computation of his net wealth.'
7. On the provisions in Section 4(4) there is no doubt that by taking the sale deed in respect of the property if the assessee's wife became the owner thereof the value of it is exempted from inclusion for computation of the net wealth of the assessee because the purchase was made before April 1, 1956. But the question is whether she became the owner by taking the sale deed in her name. That in turn depends on the answer to the question whether the purchase of the property was benami for the assessee himself. As per the sale deed the apparent owner of the property is the assessee's wife. If there is no evidence to the contrary she has to be presumed to be the real owner.
8. Ordinarily, it is the source of the purchase money, possession of the property, the relationship of the parties, the motive in making the purchase, the custody of the title deed, and the conduct of the parties prior and subsequent to the sale that are taken into account in considering whether a sale is benami or not. None of these circumstances by itself is a conclusive test. It is the effect of all of them when taken together that has to be found out.
9. With these preliminary observations let us examine the facts of this case. Admittedly, the whole consideration for the sale passed from theassessee. According to the doctrine of advancement when a husband acquires properties in the name of his wife there is a presumption that the acquisition is intended for her benefit. This rule of English law does not apply to many of the communities in India. Thus, it was held in Gopeekrist Gosain v. Gungapersaud Gosain,  6M.I.A. 53 that it does not apply to Hindus, in Moulvie Sayyud Uzhur Ali v. Mussumat Bebee Ultaf Fatima,  13 M.I.A. 233 that it does not apply to Muslims and in Palani Mudaliar v. M. Natarajan, A.I.R. 1942 Mad. 503 that it does not apply to Indian Christians. In the case of persons governed by Marumakkathayam law, the theory of advancement was being applied from ancient times in a modified manner. When a husband purchased property in the name of his wife a presumption was being raised that it was intended for the benefit of the sub-tarwad consisting of her and her children. Some guidance is afforded to us in this matter by the decision of the Travancore-Cochin High Court in Eravi Pillai v. Valli Amma,  K.L.T. 295 and the Kerala High Court in Kunhammad v. Amina,  KLT 903. In the latter decision it was held that in the case of Marumakkathayees, if a husband with money belonging to him purchased property in the name of his wife, from that circumstance alone it could not be taken that the purchase was made benami for himself and that it had further to be shown that he did not intend by the purchase to benefit his wife. Now, with the decision in that case, if we may say so with respect, we agree entirely.
10. The assessee and his wife are living together in the building on the property. That does not mean that the assessee's wife is not in possession of the property. They are living together on account of the relationship between them.
11. There is absolutely no evidence to show that the assessee was in involved circumstances and that it was to screen the property from creditors that the sale deed was taken in the name of his wife. No other similar circumstance has also come out to show that there was really a motive for the assessee to take a sale deed benami in the name of his wife.
12. The custody of the title deed is not important in this case because the assessee and his wife are living together.
13. Admittedly, the property stands in the name of the assessee's wife in the municipal registers and she is paying the tax for the same. That shows that mutation was effected in her name in the municipal registers and the sale in her favour took effect. The subsequent conduct on her part is consistent with her being the real owner of the property.
14. No doubt, in the previous wealth-tax returns filed by the assessee he had included the value of this property and in the income-tax returns theincome from it. The asset happened to be included in the previous wealth-tax returns without noting the exemption under Section 4(4) of the Act. As regards the inclusion of the income from the property in the previous income-tax returns that happened to be included as it was bound to be included under Section 16(3)(a)(iii) of the Indian Income-tax Act, 1922. These inclusions in the previous returns would not make the assessee the owner of the property if otherwise he was not. Our conclusion, therefore, on the application of the rules of law relating to benami transactions to the facts of the present case, is that the purchase of the property in the name of the assessee's wife is not benami for the assessee and that the assessee's wife is the real owner of the property.
15. The question referred by the Income-tax Appellate Tribunal in the present reference is the following :
'Whether, on the facts and in the circumstances of the case, and on a proper construction of Section 4(4) of the Wealth-tax Act, the sum of Rs. 19,438 is exempt from inclusion in the net wealth of the assessee for the assessment year 1962-63 (valuation date August 16, 1961) ?'
16. In the circumstances of this reference, it is only fit that the question is altered as follows :
'Whether the sale deed taken on June 12, 1961, in the name of the assessee's wife was benami for the assessee and the sum of Rs. 19,438 was includible in the net wealth of the assessee for the assessment year 1962-63 (valuation date August 16, 1961) ?'
17. Accordingly, the question is altered as mentioned above and, for the reasons which we have endeavoured to indicate above, it is answered in the negative, that is, in favour of the assessee. There is no order as to costs.
18. A copy of this judgment shall be sent to the Appellate Tribunal as required by Section 27(6) of the Act.