Ramaprasada Rao, J.
1. The plaintiff in O. S. No. 45 of 1966 on the file of the Subordinate Judge, Tanjore, is the appellant. The plaintiffs case may be briefly stated as follows :
2. In the properties described in A to C schedules, the plaintiff has a 2/3rd share, and the first defendant, a l/3rd share, and though ostensible title in such properties stands in the name of the second defendant, the plaintiff and the first defendant are the real owners thereof. Ever since the purchase of the said properties under Exs. B-9, B-12, B-17 and B-18, the plaintiff was exercising the right of joint possession along with the first defendant to the exclusion of the second defendant. Therefore, the plaintiff is entitled to a partition and separate possession of his 2/3rd share in the A to C schedule properties.
3. The first defendant is the husband of the second defendant. In his written statement, he would state that the properties described in schedule A and B were purchased by the second defendant under Exs. B-9 and B-12 in 1941 and 1942, from her own funds and that neither himself nor the plaintiff has anything to do with the title or possession of those properties. As regards the C schedule properties, it is stated that they were purchased originally under Exs. B-17 and B-18 in the names of the plaintiff's son-in-law, one Syed Mohamed, and one Abdul Kadir, sister's husband of the second defendant. According to the first defendant, the purchases were on behalf of the second defendant and the funds were provided by her. Further, it is claimed in the written statement of the first defendant that Abdul Kadir released his right, title and interest in the properties in 1946 under Ex. B-20, and that Syed Mohamed and the second defendant partitioned the said properties among themselves under Ex. B-21 in 1962. In those circumstances, it is stated that the plaintiff has no interest in the properties.
4. The second defendant did not go into the box; but filed a written statement denying the plaintiff's claim to the suit properties and contemporaneously asserted that she acquired these properties from her own funds, that she was in possession of the properties, and that no one, including the plaintiff, ever exercised any right of possession over the suit properties. In any event, she would state that, as regards the C schedule properties, Syed Mohamed is a necessary party to the suit.
5. In these circumstances and in the light of the pleadings as above, the following issues were framed by the learned trial Judge:--
1. Whether the plaint A to C schedule properties were purchased between 1941 and 1942 by the plaintiff and the first defendant nominally in the name of the second defendant from their partnership assets?
2. Whether the plaintiff is entitled to 2/3rd share?
3. Whether the suit has been properly valued and proper court-fee paid?
4. To what reliefs are the parties entitled?
Before we deal with the subject proper, it is necessary to refer to the business said to have been carried on by the plaintiff and the first defendant in Jaffna. According to the plaintiff, he started the business in 1918. inducted the first defendant thereto some time later and they both were carrying on the business under the name and style of M. S. M. It was brought out. in the course of evidence, that there was another partner, who was examined as P.W. 4 in the case and who was also associated in the business; but. as in the view we intend taking of the matter and as this aspect was also not touched by the learned counsel for the appellant, this need not stop us from considering the other available materials. It is common case of the parties that the partners of the firm of M. S. M. had been adjudicated insolvents in I. P. 3 of 1934 on the file of the District Court, West Tanjore. It was also brought out, before the insolvency court, that the plaintiff did not disclose any property of his other than those disclosed in the schedule of assets probably filed along with the papers in I. P. 3 of 1034. Thus, in or about 1934, the plaintiff and the firm, in which the plaintiff was an associate, became insolvents.
6. The case of the plaintiff, however, is that, under Ex. B-9, dated 17-12-1941 and Ex. B-12, dated 7-6-1942, the properties comprised in schedules A and B were purchased by him from his own funds. It is also his case that, even as regards the purchases under Exs. B-9 and B-12, there was an understanding as between himself and the first defendant that they should share the properties in the ratio of 2:1. The plaintiff was examined as P.W. 1. In his evidence, he refers to these purchases and would state that he provided the consideration of Rs. 3,500 for the purchase of property under Ex. B-9 and the further sum of Rs. 7,000 for purchase of property under Ex. B-12. He does not, however, explain as to how he obtained these funds, when once it is not in dispute that he was adjudicated, as a partner of the firm of M. S. M. insolvent in 1934. His explanation in chief examination as to why the properties described in schedules A to C were purchased in the name of the second defendant was that the vendor, the father of the second defendant, requested him to purchase the properties in the name of the second defendant and that he did. In his examina-tion-in-chief, he did not bring out the means by which he obtained the large sum of 'Rs. 10,500 between the years 1941 and 1942. He did not even refer to the fact that he was doing any independent business as undischarged insolvent. On the other hand, he would say in cross-examination
'I have handed over Rs. 1,650 in cash to the vendor and the balance of Rupees 1,650 was quoted in Ex. B-9. I had the cash of Rs. 1,650 with me at my house for 7 or 8 years. There is no account to show this. Rs. 1,650 was handed over to the vendor even on the date of execution of Ex. B-9 Rs. 1,300 was quoted for discharging the debt of Chidam-baram Chettiar under one document. I paid my two shares about ,Rs. 860 to Chidambaram Chettiar and the balance was paid Rs. 400 and odd by D-l. This was not so endorsed in the document. D-l obtained a receipt for my payment of Rs. 800. Receipt was with me till 3 years ago when I handed over that receipt and other document to D-1 to settle boundary dispute.'
This is how the matter was explained by P.W. 1. Regarding the consideration, which passed under Ex. B-12, the case of the plaintiff is this :
'Towards Rs. 7,000 under Ex. B-12, I borrowed Rs. 5,000 from my wife and the balance was with me--may be about Rs. 4,000 or Rs. 5,000. At that time I had no business. The cash was with me on hand at that time.'
Mr. Balasubramaniam. the learned counsel for the appellant, did not bring out any material in cross-examination or in chief examination of this witness to prove that he could have secured these funds at or about the time, when the purchases were made under Exs. B-9 and B-12. The factor, which militates against the contention so put forward by the plaintiff, is the very recitals in Ex. B-9. The learned Judge refers to such recitals and finds that the manner, in which the consideration is said to have been paid for the purchase under Ex. B-9 and as spoken to by P.W. 1, does not tally with the recitals in the registered document, Ex. B-9. But the learned counsel for the appellant desires that the evidence of P.W. 1 ought to be accepted and, if it is not accepted, he has no case. We have ourselves tried to delve into the judgment of the court below to find out whether there is prima facie any material for us to accept the plaintiff's case. Except for the ipse dixit of the plaintiff, there is nothing to be said against the solemnity of the registered documents which stood the test of time for two decades and more, and we do not find any conceivable and acceptable material to dislodge the title of the second defendant in the properties. In all cases where a real owner comes before court setting up the theory that1 the property stands in the name of the ostensible owner end thereby projects the theory of benami, it is fundamental that it is for that person to establish, beyond doubt, that he had the requisite money with him at or about the time when the purchase was made, and that he should have secured such money for purchase of the specified property. It is only in a case where there is prima facie evidence let in by the person, challenging the title to property in another, claiming title to the property in himself and proving his capacity and ability to purchase such property at or about the time when the purchase was made, the onus would shift to the other side. Until then, the title, as it stands, would survive and has to be upheld. No decision has been brought to our notice to the effect that, in such cases, where the plaintiff, who seeks to set aside a document which has not been challenged for many years, he can call upon the other side in whose name the title stands to establish that he purchased the property from his own funds or he had the requisite capacity to purchase the property. If this principle is to be accepted, it would be placing the cart before the horse. The pendulum of proof would shift in such cases only at a particular point of time. That point of time is when the plaintiff at least prima facie satisfies the court that he had the capacity or the requisite funds to purchase the property or the evidence let in toy him was satisfactory at least in that perspective. In the instant case, the plaintiff was an undischarged insolvent on the date when the properties mentioned in schedules A and B were purchased. He has not brought out in his evidence or placed any acceptable material to show that he did business or he had the requisite credit in the market to raise funds and acquire properties. On the other hand, his evidence is that he did not do any business at or about the time when the purchases in question were made. He would state that he kept con-siderable amounts for 7 or 8 years with him and that he borrowed money from his wife for effecting the purchase under Ex. B-42. This is rightly characterised by the court below as a tall story.
7. For the purpose of completion. We would, at this stage, consider the main arguments of Mr. Balasubramaniam. According to the learned counsel, the second defendant prevaricated in her stand in the matter of establishing her opulence to purchase the properties described in schedules A and B. Exs. A-l end A-2 are the reply notices given by the first and second defendants respectively to the suit notices Exs. B-l and B-2. In Ex. A-l, the first defendant would state that the properties were purchased by the second defendant with her own funds. The second defendant, in her reply notice Ex. A-2, has taken the similar stand. In the written statement of the second defendant also, it is maintained that the properties were purchased from her own funds. But her husband, examined as D.W. 1, while referring to the fact that the properties in question were purchased by her from her own funds, would add that the parents of the second defendant had large liquid assets, that the second defendant had jewels to the tune of Bs. 10,000 to Rs. 15,000, end that the second defendant purchase the properties under Exs. B-9 and B-12 by getting moneys from her own mother or by raising moneys on the pledge of her jewels. Deviation in the manner of purchase is pressed into service very seriously by the learned counsel for the appellant. As a matter of fact, the first defendant would also go to the extent of saying that all the considerations for the purchases proceeded from the second defendant's mother. We are unable to accept the contention that there has been such a deviation from the original stand as taken by the second defendant. If the daughter, the second defendant, obtained funds from her parents, eo in-stanti such funds would become her funds. Undoubtedly, the moneys raised by pledge of her jewels, are her funds. If in Ex. A-2, the reply notice the theory that the purchases were made from her own funds was made and her husband as P.W. 1 stated that such funds were obtained from her parent, mother, or on pledge of her jewels, that would not, in our opinion, make any difference, for those funds, when so secured, became her funds. Even otherwise, it would be necessary to consider this aspect at length, only if the plaintiff has let in evidence, as postulated by us earlier, so as to raise the presumption which could be raised in law and shift the burden of proof on the shoulders of the second defendant. The plaintiff having failed to prove his case in the first instance, cannot expect the second defendant to prove the case for him or suffer by sunall deviations in the matter of her explanation regarding acquisition of funds, as stated by us already.
8. The next point that was pressed by Mr. Balasubramaniam is that the second defendant and her mother did not go into the witness box. We fail to corn-prehend as to why the second defendant in the circumstances of this case should give evidence, when her husband has already spoken for her. Apart from this, in a litigation it is only when there is a necessary prevarication or statutory obligation to give evidence, a litigant is expected to so give evidence. When the circumstances do not warrant the other side to enter into the box and speak to tertain circumstances, which are well established and which ere well understood in the eye of law, then that person cannot be found fault with, as he has not committed anything, which has to be noticed and corrected by a court of law. The mere non-examination cannot loom large in the instant case, for the neaston that the initial burden is on the plaintiff to establish that he had funds to purchase the properties in question and, he having failed to do so. he cannot expert the ostensible owner, who held 'the properties for years, to come forward and prove that she had the necessary funds or the secured the funds at or about the time when the properties were purchased. In the Instant ease, we are satisfied that p. W. 1 has spoken the truth and accepting his testimony, we have no hesitation to hold that the second defendant did have the neces . sary funds to purchase the properties and those funds were not the funds of the plaintiff for him to claim any share in the properties, which are the resultant of such purchases.
9. We shall now briefly refer to the C schedule properties. Admittedly, these properties were purchased in 'the names of Syed Mohamed. son-in-law of the plaintiff, and Abdul Kadir,, sister's husband of the second defendant. The plaintiff in the witness-box, said that the first defendant represented to him that Ex B-17, under which the C schedule properties were purchased, may be taken in the names of Sved Mohamed and Abdul Kadir, end he agreed to this. It appears that he did not even ask the first defendant as to why the properties should be bought in the names of those two persons. According to him, the purchase price came from him. To continue the narrative. Abdul Kadir executed a release deed of his right. title and interest in the properties in 1946 in favour of the second defendant and so did Syed Mohamed in 1962. These release deeds are Ess. B-20 and B-21. The plaintiff has not even impleaded Sved Mohd. and Abdul Kadir as parties to the suit. It was for Syed Mohamed and Aodul Kadir to come forward with a case that the properties in the name of the second defen-ant are benami for them. On the other hand, they conceded the right of the second' defendant in the C schedule properties and executed the above deeds. It is not for the plaintiff in this action to Question the absolute, title of the second defendant in the C schedule properties.
10. Where a particular property is standing benami in the name ol one for the benefit of another, certain other features also have to be considered. The learned counsel for the appellant referred to the fact that the plaintiff was in joint possession of these properties and that PW 2 'to 5. who were examined on behalf of the plaintiff, supported the plaintiff's case. We must brush aside the evidence of P. Ws. 2 to 5 who only claimed to have seen the plaintiff and the first defendant in the shop (C schedule property) wherein it is stated that they were sharing coconuts as between themselves. Such evidence could easily be secured. That evidence is certainly not a pointer towards proof of possession of immoveable 'properties with one or other of the parties to the litigation. The plaintiff himself is not sure as to who are his Pannayals. He has not produced anv lease deed or account to show that he collected income from the propeitics. There is, therefore, no tangible evidence to show that from 1941 or 1942, the plaintiff was in joint possession ol the C sche-dule porperties. or A and B schedule properties.
11. The important circumstances to show that the second defendant was in possession of - the properties, are that the patta was in her name throughout, that she was paying public dues for the properties, that she obtained loans from the Government as owner of the properties. and that, after the Abolition Act. she obtained compensation payable towards mel-waram in some of the properties from the appropriate tribunals. By Exts. B29. 30 to 44. 45. 46 to 56 and 65. the second defendant has satisfactorily established that she paid kists and that she alone obtained loans from the Government under the various Schemes propounded in the State. Again, under Exs. B27 and 28, she obtained the statutory compensation payable to melwaramdar and the plaintiff also was aware of the payment of such compensation to the second defendant. He speaks to this in his evidence thus:
'The compensation amount by Government was given to D. 2. D. 1 told me that P. 2 has sot the compensation. D.1 informed about tins 10 or 12 years ago.'
Even though the plaintiff was aware of payment of the compensation to the second defendant 10 or 12 years previously, he would not take any steps till he came forward with this suit, claiming a two-third share in the properties under consideration. With this abundance of evidence we are unable to agree with the learned con-sel for the appellant that the plaintiff's testimony by itself is sufficient to establish that the second defendant is only an ostensible owner of 'the properties in question, whilst the plaintiff and the first defendant are the real owners of the same.
12. Reference was made to the decision of the Privy Council in Sardar Gur-baksh Singh v. Gardial Singh . wherein was laid down the well-known principle that, if an essential witness is not called upon to testify about the relevant facts and circumstances of the case, the court is bound to draw an adverse inference. That was a case in which the question ol adoption was hi issue. The onus obviously lav on the Person who failed to call the necessary witness to establish his case. The principle therein is totally inapplicable to a case under consideration. Here, the onus is on the plaintiff. He has to establish clinching-ly and to the satisfication of the court that he' provided the funds for the purchase of the properties or that he had the capacity to raise credit in the market to fprur-chase such properties. It is only thereafter the onus of proof would shift. As referred to earlier, no convincing material was placed before us by the learned counsel for the appellant to .prove that the plaintiff provided the funds for the purchase of the properties in question. In these circumstances, the non-examination of the second defendant in this case is not fatal.
13. The second defendant in any event, was in possession of the title deeds. No explanation wag given by the plaintiff as to why he left the title deeds with the benamidar for two decades and more and why he kept quiet for such long Period. Possession of title deeds, payment of public dues, holding out by the second defendant publicly as the owner and obtaining loans from the Government, securing compensation under the Abolition Act from statutory Tribunals as absolute owner of the properties end acts of possession which have been established beyond doubt are all factors, when taken cumulatively, establish the absolute title of the second defendant ovcr the properties in question. Though a reference was made to the motive to purchase the properties in the name of the second defendant it was not even argued before us. Even on the evidence of the plaintiff, the theory, namely, that the plaintiff purchased A and B schedule properties at the instance of the vendor and the C schedule properties at the instance of the first defendant in the name of the second defendant, the alleged benamidar, is a farfetched one, and we are unable to accept the same.
14. For the foregoing reasons we except the findings of the court below on all the issues. The aippeal is dismissed. In view of the close relationship of the parties, there will be no order as to costs.