1. This appeal arises out of a suit for recovery of possession of 15 items of properties on the ground that the plaintiff has become entitled thereto under a gift deed (Ex. A) executed in his favour by one Seetha Bai Ammal on the 4th September, 1914. Seetha Bai Ammal was the widow of one Jagannadha Rao and the mother-in-law of the first defendant. As the first defendant is also called Seetha Bai Ammal, we will refer to the first defendant when necessary as the daughter-in-law.
2. Jagannadha Rao died some time in 1903, leaving him surviving his widow Seetha Bai Ammal and an adopted son Subba Rao, who died in May, 1914. The evidence shows that during the last days of Subba Rao or soon after his death the relations between the mother-in-law and the daughter-in-law became strained and the plaintiff who is the grandson of a brother of the mother-in-law and who had been living in Subba Rao's family for some years managed to persuade the old lady to execute a gift in his favour of properties in respect of which the title stood in her name. The old lady died a few months after the date of the gift and, for several years thereafter, the plaintiff on the one hand and the first defendant on the other have been endeavouring to secure the tenants in possession of these properties to their respective sides till ultimately the plaintiff instituted this suit just when the period of 12 years from the date of the gift deed was about to expire.
3. The plaintiff claimed that the properties in respect of which the title deeds stood in the donor's name were her stridhanam properties and that she was accordingly competent to make a gift thereof. The first defendant who was the contesting defendant pleaded that though the title to these properties stood in Seetha Bai Animal's name, they had all been purchased with the funds belonging to Jagannadha Rao, benami in her name. A plea of limitation was also raised. The question of benami formed the subject of the first issue and the question of limitation of the second issue.
4. The learned Subordinate Judge found the first issue in plaintiff's favour; on the second issue he found that as regards five items, namely, items 1 to 3, 13 and 15, the plaintiff had not shown that he or his donor had been in possession within 12 years of the institution of the suit but that in respect of the other items the plaintiff's possession within the statutory period had been proved. He accordingly dismissed the suit so far as it related to items 1 to 3, 13 and 15 and gave a decree in the plaintiff's favour in respect of the other items. The first defendant has filed this appeal against so much of the decree as is against her and the plaintiff has filed a Memorandum of Objections in respect of the items disallowed to him.
5. In dealing with the question of benami, we may mention at the outset that it has not been suggested that Jagannadha Rao had any creditors from whom he desired to screen these properties. It is obvious from the written statement that the first defendant was hard put to it to suggest a motive for a benami transaction. It is true that Jagannadha Rao took the first defendant's husband in adoption in 1884, and some of the letters exhibited in the case show that as a young boy he was not easily persuaded to come and live 'with his adoptive parents and preferred to go back to the place where he had theretofore been living. These letters relate to a period when the first defendant's husband was 8 or 9 years old and it would be too much to suggest that at that time such conduct brought about any differences between Jagannadha Rao and the adopted son with reference to which the necessity for resorting to benami transactions could be explained. In paragraph 3 of the written statement it is stated that Jagannadha Rao took such precautions as he liked in order to avoid among other things the possibility of the adopted son quarrelling with him and squandering the properties and in order to ensure the obedient conduct of the adopted son to his dictates and to avoid the possibility of the members of his natural family instigating the adopted son to act adversely to the interests of the adoptive father. In the course of the evidence one or two further reasons have been suggested, such as, a desire on Jagannadha Rao's part to keep apart some properties for the benefit of any aurasa son that he still expected might be born to him or a desire to ensure that the adopted son would behave respectfully towards Sita Bai Amma by making it appear that she was the owner of some properties. We find it hard to believe that any of these motives would have led to a benami transaction rather than to a real transaction in favour of the wife.
6. The principal argument of Mr. Govindarajachari before us on behalf of the appellant was that as the attempt on the plaintiff's side to establish that these properties were acquired with the lady's funds had failed, it must be held that they were purchased by Jagannadha Rao with funds belonging to the joint family of himself and his adopted son, and that as sufficient provision for her maintenance had been made by Ex. B and also by the provision in the adoption deed itself in the possible contingency of differences between her and the adopted son, there was nothing to rebut the presumption arising under the law that the purchases made in the wife's name with family funds were only made for the benefit of the family. It seems to us that this argument puts the effect of the evidence much too high and that the legal implications therein contained are not altogether tenable. It appears from the documentary evidence as well as from the admissions made by the first defendant herself and by D.W. 13, that Seetha Bai Amma did have some monies of her own and some money-lending transactions of her own. It is, however, not possible to fix the amount that she was thus in possession of. The evidence also establishes that at least after 1886, she must have been entitled to an annual income of between Rs. 100 and Rs. 200 from the properties set apart for her under Ex. B, while the collection of that income was being made by Jagannadha Rao himself. In such circumstances, the mere fact that the plaintiff or his witnesses do not now find it possible to connect any of the sale-deeds relating to the suit properties with a particular item of asset belonging to the lady does not necessarily lead to the inference that the purchases should have been made with family funds by Jagannadha Rao. Some of the transactions under which the suit properties were acquired were for comparatively small prices. The only substantial acquisition was under Ex. D in 1896, the consideration therefor being made up of the amount which accrued due on a usufructuary mortgage of 1887 for a sum of Rs. 2,250 and a cash payment of Rs. 700. In the light of the circumstances stated above, there is nothing that necessarily suggests that the Rs. 700 paid in cash., at the time of Ex. D must have been Jagannadha Rao's money and could have been the lady's. As regards the Rs. 2,250 advanced on the usufructuary mortgage in 1887, we have no evidence suggesting whether it could have been the lady's money or Jagannadha Rao's money. The position therefore at best only comes to this: here is a lady, the wife of a comparatively well-to-do man with an income of more than Rs. 1,500 per annum, the lady herself having some means of her own, though the amount thereof is not known. The husband had not intelligible motive for entering into any benami transaction. He gets documents executed in the name with a distinct statement that the monies paid for the purchase constituted the stridhanam property of the lady. In relation to the properties thus acquired, he takes registered lease deeds in the lady's name and also gets a power-of-attorney executed by that lady appointing her own agent to attend to her affairs. It does not appear that during all the time that Jagannadha Rao was alive, he ever took a single lease deed in his name in respect of these properties; except as regards one house which was leased to the Postal Department. There is nti doubt evidence that the realisation of the income from these properties was attended to by Jagannadha Rao or his men, but that would have been equally the case even if these properties belonged to the lady and not to Jagannadha Rao. It is admitted that in respect of a mortgage under which money Fas due to this lady long prior to the adoption and in respect of the properties settled on this lady by Ex. B, the interest or income used to be realised by Jagannadha Rao or his men.
7. It is clear from the adoption deed and from Ex. B that Jagannadha Rao was alive to the possibility of the relations between his wife and the adopted son turning out to be unfriendly and it is nothing strange if in those circumstances a man in that position desired to put the lady in a position of some independence without depending upon the adopted son or being obliged to sue him for maintenance or for a share in terms of Ex. I. It is also significant that even during the period when he was taking sale-deeds in his wife's name in respect of the suit properties, he was entering into other transactions of sale and mortgage in his own name, thus showing that he had no reason at that time to make it appear that he had no properties of his own other than the ancestral properties. Having regard to these circumstances we think the learned Subordinate Judge was justified in coming to the conclusion that the sale-deeds relating to the suit properties were not taken in Seetha Bai Animal's name benami for her husband or for the family. The onus lies in the first instance on the defendant who pleads that these transactions are benami. 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 monies belonging to Jagatinadha Rao, whether in a similar 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 Section 82 of the Indian Trusts Act as well as the observations of the Judicial Committee in Bilas Kunwar v. Desraj Ranjit Singh (1915) 29 M.L.J. 335 : L.R. 42 IndAp 202 : I.L.R. 37 All. 557(P.C.) recognise 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 person 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. The observations in Sanjivaroya Pillai v. Balambiki Ammal (1907) 17 M.L.J. 339 are not opposed to this view because there was evidence in that case to suggest that the transfers were taken in the wife's name with a view to screen the property from creditors. In Rahiman Beebi v. Khathoon Bee (1916) 4 L.W. 193 and Thulasi Ammal v. The Official Receiver Coimbatore (1934) 67 M.L.T. 541 reference has been made to the terms of Section 82 of the Trusts Act and an attempt has been made to read the observations of the Judicial Committee in earlier cases consistently with the provisions of that section. The observations of their Lordships in Ismail Mussajee Mookerdum v. Hafiz Boo (1906) 16 M.L.J. 166 : L.R. 33 IndAp 86 : I.L.R. 33 Cal. 773 (P.C.) and of Venkatasubba Rao, J., in Thulasi Ammal v. The Official Receiver, Coimbatore (1934) 67 M.L.T. 541 also show that where the motive alleged for a benami transaction itself suggests that the purpose in view could be served only by a genuine transfer and not by a mere benami transaction, the more reasonable inference is that the transfer was intended to be operative as a transfer of the beneficial interest and not as a mere benami transaction.
8. Mr. Govindarajachari next suggested that if and in so far as any monies of Jagannadha Rao had gone to make the purchases of the suit property in his wife's name, a gift thereof would be invalid as a gift of joint family property. This question was not raised in the Court below in that form and the appellant's learned Counsel explains it by pointing out that the plaintiff's attempt in the lower Court was to establish that the purchases were made with the lady's funds and not with the family funds. Assuming that that contention can be raised at this stage, it will be material to consider it only if there is positive evidence that funds belonging to the joint family had been used for the purpose of these purchases. The mere fact that the plaintiff is not able to establish that the purchases were made with the lady's funds, will not entitle the first defendant to ask the Court to take it for granted that joint family monies must have been utilised for these purchases. We accordingly confirm the finding of the lower Court on the first issue.
9. With reference to the plea of limitation, we are not satisfied that the lower Court was justified in dealing with the case as one governed by Article 142 of the Limitation Act. The allegations in the plaint as well as the evidence tendered during the course of the trial establish that all the suit properties were in the possession of tenants. It is true that during Subba Rao's time he was taking muchilikas in his name and collecting the income from the suit properties. But as he and his adoptive mother were living together amicably, it cannot be seriously suggested that his possession or management was adverse to the mother's interest. As we have already said, the relations between the mother-in-law and the daughter-in-law became strained as soon as Subba Rao died and the plaintiff's interference with a view to securing some benefit to himself seems to have made matters worse. A scramble accordingly began after Subba Rao's death by the attempts made on each side to get the tenants to attorn to the one side or to the other. In circumstances of that kind, the principle of Article 144 and not Article 142 should be applied. Considering the evidence on this basis, the conclusion seems to us to be that in respect of most of the suit items, the first defendant has failed to show that she got the tenants in possession to attorn to her more than 12 years before the institution of the suit. In many instances registered muchilikas have been taken from the tenants in the mother-in-law's name and there is evidence that some of these tenants were sued for rent on the basis of such muchilikas and decrees were obtained. As against such evidence on the plaintiff's side, the story related on the defendant's side of oral arrangements and payments of rent to her can scarcely be seriously pressed.
10. As regards one of the items of property, namely, item No. 14, a house in Rajahmundry, a further point was pressed before us on behalf of the appellant, namely, that only a part of the house was in the occupation of the tenant who had attorned to the mother-in-law and that the other part was in the possession of a lady named Pankajam who refused to attorn to the old lady. In the suit for rent instituted by the plaintiff against these two tenants, the suit was decreed only against the former and not against the latter. It was accordingly contended that at least to the extent of the interest in one half of the house in the possession of Pankajam the plaintiff's suit should be held to be barred by limitation. But if, as we have already pointed out, the principle to be applied is that of Article 144, it is not sufficient for the defendants merely to suggest that Pankajam had not attorned to the old lady or to the plaintiff. It is only on proof that she had attorned to the first defendant that the plaintiff's suit could be held to be barred even as regards the portion in her possession. The first defendant's evidence is only that some time after 1915 Pankajam paid 10 months' rent in respect of her portion to the first defendant. Even taking this to be true, that is within 12 years of the institution of the suit. We see no reason to differ from the conclusion of the lower Court in respect of items 4 to 10, 11, 12 and 14.
11. As regards the items disallowed to the plaintiff by the lower Court, we see no reason to interfere with its conclusion in respect of items 1, 13 and 15; But in respect of items 2 and 3, we are unable to agree with the lower Court's decision. These items were in the possession of one Chinnain Raju as a tenant under Subba Rao under a lease (Ex. XXVI) executed in 1911. Very soon after Subba Rao's death the plaintiff succeeded in taking a lease in Seetha Bai Ammal's name, that is, Ex. J-10 from one Bapiraju, a brother of Chinnamraju. It is true that if the new lessee was a stranger and the former tenant in possession attorned to the first defendant, the Court may reasonably hesitate to believe that the new tenant got peaceful possession. It is apparently on this assumption that the learned Subordinate Judge observed in paragraph 26 of his judgment that it was difficult to believe that the old tenant gave up possession of these items to Bapiraju. But the evidence of D.W. 4 and Ex. XVIII establish that Chinnamraju, the former tenant, must have died in 1913 or early in 1914 and it appears from Ex. XVIII itself that in February, 1914, it was Bapiraju who sent the rent due in respect of these items to Subba Row. We therefore see no reason to think that it was unlikely that Ex. J-10 represented a real transaction of lease or that Bapiraju would not have got into possession under it. The defendants' story that Chinnamraju's widow Venkatammal was in possession and paid her rent, does not seem entitled to weight in the face of the registered lease executed by Bapiraju and the circumstances above adverted to. We would accordingly set aside the decree of the learned Subordinate Judge in respect of items 2 and 3 and give a decree to the plaintiff in respect of these items as well.
12. As regards item 15 it will follow from our finding on the question of benami that the title thereto also is in the plaintiff. But the learned Subordinate Judge has not given the plaintiff a decree in respect of that item because in the connected suit O.S. No. 17 of 1929, he held that the present plaintiff had not shown that he had possession of this item within 12 years of the institution of the suit. Apart from the observation we have already made that in the circumstances of the present case the principle of Article 144 and not Article 142 should be applied, the learned Judge's observation that the plaintiff was not in possession of this item within 12 years of the institution of the suit seems to rest upon a misapprehension because ). W. 9, the tenant who is alleged to have been in possession of this item under the first defendant, admits that for at least a year after Subba Rao's death the plaintiff was occupying a portion of this house. We accordingly hold that the learned Judge's finding on the question of limitation even in respect of this item is not correct. But as his decision has been set, aside on appeal by the District Court in A.S. No. 9 of 1931, it is not necessary that we should pass a formal decree for possession in the present plaintiff's favour in respect of this item. It will be sufficient if there is a declaration of title in plaintiff's favour in respect of this item.
13. As regards items 2 and 3 which we have allowed in plaintiff's favour, the plaintiff will also be entitled to mesne profits from the first defendant at a flat rate of Rs. 30 per annum for the three years before suit (1923-1925) and future mesne profits at the same rate from 1926 till delivery of possession of the suit items or until the expiry of three years from this date, whichever happens earlier. We do not, however, think it necesssary to interfere with the direction in the lower Court's decree as to costs. The appeal is dismissed with costs. In the Memorandum of Objections there will be no order as to costs as the parties succeed in part and fail in part.
14. For the reasons given above S.A. No. 1214 of 1932 is dismissed with costs.
15. The above appeals having been: set down to be spoken to this day the Court delivered the following
16. (Judgment delivered by Varadachariar, J.). Appeal No. 112 of 1931.
17. Before the decree in this appeal was finally drawn up, it was brought to our notice by the learned Counsel for the appellants that in dealing with issue 4, the lower Court had omitted to give the appellants credit for payments made by them in respect of public charges like land revenue and cesses.
18. The case was accordingly directed to be posted for being spoken to.
19. The respondents' learned Counsel points out that the course adopted by the lower Court in paragraph 35 of the judgment was to adopt the figures as to incotne shown by the lease deeds of a much earlier date though the income relating to the period in respect of which mesne profits were claimed by them prior and subsequent to suit would have been much greater, and that the Court, in order to avoid an inquiry preferred to adopt the earlier figures on the understanding however that details of disbursements made by the defendants during the period of their possession need not be taken into account. The parties are not able to agree before us as to the precise basis on which the lower Court proceeded.
20. Theoretically, the plaintiff is entitled to an inquiry as to mesne profits in respect of the period to which the issue relates and the appellants are entitled to deduction in respect of public charges disbursed by them. Both parties would undoubtedly have saved considerable time and expense if they could have agreed on some figures. But, in the absence of such agreement we have no alternative but to set aside the finding of the Court below on issue 4 and send the case back to the lower Court for an inquiry, in respect of mesne profits in the manner prescribed by law as regards items 4 to 12 and 14. The figures arrived at after such inquiry will be inserted by the lower Court in the place of the figures now entered in its decree. As regards the two other items which we allowed in the appeal, namely, items 2 and 3, our judgment has already fixed the rate and this amount has only to be added to the figure which the lower Court may arrive at.