1. The defendant in O. S. No. 69 of 1962 on the file of the court of the District Munsif of Tiruchirapalli is the appellant before this court. The plaintiff in the suit was her husband. He instituted the suit for recovery of possession of B schedule property in the plaint and for maintenance past and future. As far as the present appeal is concerned, before me it is confined only to the recovery of plaint B schedule property. Admittedly the said B schedule property was purchased in the name of the appellant under Ex. B-1 dated 18-8-1943. The plaintiff instituted the suit on the allegation that though the title deed stood in the name of the appellant, it was he who advanced the money for purchasing the property and it was he who was the beneficial owner of the property. Admittedly the husband and wife lived together till 1954, when the wife left the house of the husband and started living with her sister. The case of the appellant was that the consideration for the purchase of the property covered by Ex. B-1 was provided by her and in any event the husband did not intend to purchase the property benami for him and the property was intended to belong to the appellant herself. Both the courts below came to the conclusion that the plaintiff had established the case of benami set up by him and therefore decreed the suit for recovery of possession. Hence the present second appeal by the defendant in the suit.
2. I may straightway mention that the learned District Judge, who disposed of the first appeal concentrated his attention solely on the source of consideration for the purchase of the property under Ex. B-1. Both the courts have concurrently found that the consideration was provided by the husband himself and that being a finding of fact cannot be interfered with in the second appeal. Therefore, I proceed to consider the case of the husband on the basis that he provided the consideration for the purchase of the property.
3. Still the question remains, taking into account the relationship between the parties, namely, husband wife, whether the husband intended to benefit whether the husband intended to benefit the wife by the purchase of the property by way of making a gift of the consideration of the property itself. The case of the husband as referred to by the learned District Judge in his judgment is that he never intended to benefit the wife, but it was only because she requested that her name, may be put as vendee in the sale deed, he agreed to do so, just to compliment her. When the relationship between the parties is so close, as husband and wife the source of consideration plays a minor part and the more important and significant factor will be the motive for the purchase of the property by the husband in the name of the wife. Such a motive is absolutely absent in this case except the self-serving statement of the husband that he agreed to the inclusion of the name of his wife in the sale deed just to compliment her.
In all cases of such transactions, the crucial consideration is whether the husband intended, when he purchased the property in the name of the wife, that the wife should become the owner of the property or did he intend that notwithstanding the title deed standing in the name of the wife, he alone should be the owner of the property. Undoubtedly the intention has to be gathered from all the surrounding circumstances of the case and it is only because of these features, several tests have been propounded for consideration in deciding the question of benami. In this particular case, admittedly after the purchase of the property in the name of the wife, patta was transferred in the name of the wife and kist receipts stood in the name of the wife. Certainly all these things can be explained by the fact that the person in whose name the title deed stood was the wife and therefore these documents also stood in her name. But in cases of such close relations, none of these considerations will be of a decisive character and the entirety of the circumstances should be taken into account for coming to a conclusion. As far as the present case is considered, there is one crucial admission in the evidence of the plaintiff himself, which both the courts below have completely failed to take note of. That statement of the plaintiff is:
'Till 1954 I was under the impression that the lands belonged to her and that the C schedule property also belonged to her.'
The C schedule property referred to was the subject-matter of a settlement by the husband in favour of the wife, for which the wife after 1954 had to file a suit and obtain possession from the husband. However, as far as the present suit is concerned, the subject-matter is the lands referred to in the statement of the plaintiff (extracted above) and he has clearly stated that till 1954 he was under the impression that the lands belonged to her. This statement can be explained only on the basis that when he purchased the property should belong to the wife and only when she left the house of the husband in 1954, he changed his mind and wanted to put forward his own claim to the said property. Once the intention that he wanted to benefit the wife and he wanted the wife to be the owner of the property, at the time when the property was purchased, is established clearly and indisputably, no amount of change of intention subsequently will have the effect of divesting the title which the wife acquired under the document under which the property was purchased in her name. Therefore, the admission of the plaintiff in this case, as extracted already, is the clearest possible evidence of his intention that the wife should be the owner of the property and if so, the case set up by the plaintiff of benami fails miserably and totally. It is this aspect which the courts below have failed to bear in mind.
4. Under these circumstances, the second appeal is allowed, so far as it relates to the recovery of possession of the plaint B schedule property is concerned. The judgments and decrees of the courts below is so far as they relate to the recovery of possession of the plaint B schedule property are set aside and the suit of the plaintiff will stand dismissed in respect of the claim for recovery of possession of plaint B schedule property. There will be no order as to costs in this second appeal. No leave.
5. Appeal allowed.