1. This appeal by defendant 3 arises out of a suit for partition filed on behalf of the plaintiff a minor at the time of the suit by his next friend, his maternal uncle, against defendant 1, his uncle, defendant 2 his father, and defendant 3 daughter of defendant 1. After the suit was filed, defendant 4 was born with the result that the plaintiff's share was reduced from one-fourth to one-sixth. The plaintiff got a decree below. Defendant 3 files this appeal in respect of two items of immovable property: (1) 2 1/2 cents in item 40 of Schedule A and 2.2 acres of dry land in item 51 of Schedule A and an item of debt. Defendant 3 claimed in her written statement that the two former items did not belong to the joint family but belonged to herself. The Subordinate Judge found this point against her and gave a decree for the plaintiff in respect of these two items also. Hence she appeals. Taking these items in succession, the sale deed for the first item of 2 1/2 cents is Ex. 4. The Survey No. is 350. It originally consisted of 23 cents. A portion of this land--about 14 cents--had previously been sold to the family under Ex. 7-a in August 1910. Another portion consisting of about one-third of the land described as 8 cents was sold to the family by Ex. 7 dated March 1912. The second sale-deed mentions as the northern boundary of the land in this number
land partly belonging to you and partly belonging to Velidantla Khotayya.
2. The land partly belonging to you'is really the land already sold to the family under Ex. 7-a. The rest of the description shows that there was a small piece of land belonging to Velidantla Kotayya in this number. Velidantla Kotayya is the vendor under Ex. 4. The Subordinate Judge disbelieves the story given by him as to how he got the land. His story was that he got it in exchange for some other lands. No exchange deed was produced. The Subordinate Judge has not noticed the description in Ex. 7, a sale deed of the family, which shows that Velidantla Kotayya had a land there and the description was so early as 1912 whereas Ex. 4 was in 1922. When we find that Kotayya's title was recognized 10 years before the sale-deed Ex. 4, it is clear there is no reason to doubt his title. The Subordinate Judge committed a very serious mistake in his judgment when dealing with this item. He was under the impression that Exs. 7 and 7-a each dealt with 23 cents of land, at any rate that after the execution of these two sale deeds there was no more land in Survey No. 350. This is clearly wrong. The first sale-deed . was for 14 cents, the second for 8 cents and the third for the balance. The discrepancy between one cent and 2 1/2 cents is easily explained by the inaccuracy of measurements. It is not the case of the plaintiff that the consideration for Ex. 4, namely, Rs. 12-8-0 could not have been advanced by defendant 3's husband or by defendant 3 herself and was as a matter of fact advanced by the plaintiff's family. The whole case of the plaintiff rested upon the Subordinate Judge's finding that there was really nothing more to be sold after Exs. 7 and 7 a and that Ex. 4 is merely a new sale deed for land already sold, executed for the purpose of helping defendant 3. The moment this case falls to the ground the plaintiff's case with respect to this item falls to the ground also.
3. Coming to the second item: the consideration for this item is as much as Rs. 500. Defendant 3's case is that her husband got it from the lands which he obtained on division with his brothers. In a case of this sort the burden of proof is upon the plaintiff and we are not to scrutinize and examine the defendant's case in the first instance: vide Protap v. Sarat Chandra A.I.R.1921Cal.101. The plaintiff must prove that a land standing in the name of a female member of the family was really purchased benami in her name for some ulterior purpose such as depriving him of his rights, and if that burden is not discharged it is unnecessary to examine the defendant's case.
4. Now, the family of the plaintiff and defendants 1 and 2 admittedly possessed 45 acres of cultivated land and 25 acres of pasture land. For a family possessing 70 acres it must be too paltry a transaction to attempt to purchase two acres of land and put it in the name of a daughter for the purpose of cheating one of the members even assuming that there were misunderstandings with that member. A second outstanding feature in this case is that the plaintiff's father, defendant 2, supports the case of defendant 3. So far as defendant 1 is concerned he of course supports his daughter's case and one need not at tach any undue weight; to that. He is sonless and it is natural that he should support his daughter's ease. But it is rather surprising that defendant 2 should support this portion of defendant 3's case when it is against his own interest and that of his other son who was born after the suit was filed merely to spite the plaintiff. But apart from these considerations what is the evidence which the plaintiff has adduced. The vendor, P. W. 9, says that defendant 1 settled the bargain; that at the time the sale-deed was executed two promissory notes, Exs. 3-a and 3-b, were also executed for the balance of consideration Rs. 100 having been previously advanced. He then says that these promissory notes were paid off by defendant 1, and his clerk Panguluri Hanumanthayya. P.W. 2 who is the next friend of the plaintiff gives evidence saying that the money was paid by defendant 1 and Panguluri Narasayya. Though it is true that Narasayya is the father of Hanumanthayya, still this is a discrepancy which militates against the evidence of these two witnessee.
5. But apart from this, even if P.W. 9's evidence is accepted, there is nothing in it which shows that the ownership of the money was that of defendant 1 and not of defendant 3. He says in cross-examination that he does not know to whom the money belonged. So that his evidence in examination-in-chief merely comes to this: that the hand that paid the money was that of defendant 1 and his clerk. P.W. 2's evidence is singularly unconvincing. He says that after the money was taken he made inquiries and Narasayya happened to tell him about it. Narasayya is admittedly alive and is not examined. And it cannot be pretended that he is on bad terms with the plaintiff, because he gave some information to the plaintiff. A good deal of P. W. 2'S evidence is hearsay and it is impossible to accept it. That being all the evidence of the plaintiff, it is very difficult to act upon such evidence and disturb a title created by a solemn registered document. The motive for creating a benami document in favour of the daughter does not seem to be very strong. If there was such a motive, it is inconceivable that it should confine itself to a small extent of land like two acres. We are not prepared to accept the Subordinate Judge's estimate of evidence in this case. We think the plaintiff has not made out a prima facie casein respect of this item and it is unnecessary to 'examine' the evidence adduced by the defendant as to the source of the purchase money.
6. There is a third item claimed by defendant 3 in this appeal. That is a debt due to the family in respect of which the plaintiff claimed a share. This item is No. 6, Schedule 3, Part 2-b. The debt was due from P. W. 6. P. W. 6 himself says that the note was executed in favour of defendant 1. Defendant 1 in his evidence says that the note was transferred to somebody because he was in need of money. But all this evidence does not help defendant 3. It does not show that he is entitled to item 6, Schedule 3, Part B. If there is any other debt due by this debtor to defendant 3, this judgment will not affect her in respect of it, but certainly her claim to item 6 must be disallowed because the has established no right to it. This portion of the appeal fails, but the appeal in respect of the other two items succeeds. The plaintiff's suit in respect of the two items of immovable property will be dismissed. As the parties have succeeded equally and lost equally, there will be no order as to costs between the plaintiff and defendant 3.