1. The plaintiff sues her husband (the 1st defendant) and her husband's mother and sisters and brothers for recovery of a certain property, alleging that it was transferred to her by the 1st defendant in part payment of her mahr. The alleged transfer is by Exhibit A.
2. It is admitted before us that Exhibit A was executed by the 1st defendant, and that mahr was due from him when he executed it. The real contest in this Court is on the question whether it was the 1st defendant or his father who was entitled to the property, at the time when Exhibit A was executed.
3. The property was purchased on 27th March 1903 by the father of the 1st defendant, in the name of the 1st defendant (Exhibit I). On 9th July 1909 it was mortgaged by the two jointly for Rs. 300 (Exhibit II). On 22nd June 1910 Exhibit A was executed by the 1st defendant purporting to transfer the property to the plaintiff. On 1st September 1910, the 1st defendant executed a deed [Exhibit Id (a)] purporting to cancel Exhibit A, and another deed (Exhibit III) purporting to re-transfer the property to his father.
4. The District Judge, reversing the District Munsif's finding, has held that the property passed to the 1st defendant under Exhibit I, because there was nothing to negative the presumption that it was intended to make the 1st defendant the owner of the property.
5. He considers this conclusion supported by the fact that the property was subsequently mortgaged (by the 1st defendant and his father) for the expenses of the 1st defendant's marriage. 'So it may equally well be argued,' he says, 'that the property was ear-marked as belonging to the 1st defendant.' This observation is not in sccordance with the prevailing custom amongst Musalmans, which requires the father to bear the expenses of his son's marriage.
6. On the broad question involved in the 2nd issue the authorities do not seem to have been brought to the notice of the learned District Judge; and he seems to have had in mind the presumption of advancement as prevailing in England. See, e. g., Stock v. McAvoy (1872) 15 Eq. 55 : 42 L.J. Ch. 230 : 27 L.T. 411 : 21 W.R. 521. That presumption, to use the words of Batty, J., in Bai Motivahoo v. Purshotam Dayal 29 B.P 806 : 6 Bom. L.R. 975 does not arise in India, the source from which the purchase-money was paid shifting the onus; Suleiman Kadr Bahadur v. Mehndi Begum' 25 I.A. 15 : 25 C.P 473 : 2 C.W.N. 186 : 7 Sar. P.C.J. 254.
7. The presumption has been stated to be the other way by the Privy Council in Moulvie Sayyud Uzhur Ali v. Musammat Bebee Ultaf Fatima 13 M.I.A. 232 : 13 W.K. (P.C.) 1 : 4 B.L.R. (P.C.) 1 2 Sar. P.C.J. 522 : 15 E.R. 87 and in very clear terms in Naginbhai v. Abdulla 6 B.P 717.
8. These two lastly mentioned pronouncements were made before the Indian Trusts Act was enacted, and the law must be now taken from Section 82 of that Act, which does not create any presumption of law. Our attention was drawn in this connection to what Batty, J., said in Bai Motivahoo v. Purshotam Dayal 29 B.P 806 : 6 Bom. L.R. 975 at the original trial, his exposition of the law having been approved in appeal on page 314.
9. The Indian Trusts Act has not been extended to Bombay, and in that respect the law prevailing in Madras is, it was contended, different from that obtained in Bat Motivahoo v. Purshotam Dayal 29 B.P 806 : 6 Bom. L.R. 975.
10. In our opinion, under the Indian Trusts Act, the Court must, in each instance where property is transferred to one person for a consideration paid or provided by another person, address itself to the question whether it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee. In doing so the particular circumstances of the case must, of course, be first considered; and so far as the circumstances and considerations referred to in the cases mentioned above, and in Dhurm Das Pandey v. Musammat Shama Soondri Dibiah 3 M.I.A. 229 : 6 W.R. (P.C.) 43 : 1 Suth. P.C.J. 147 : 1 Sar. P.C.J. 271 : 13 E.R. 97; Gopeekrist Gosain v. Gungapersaud Gosain 1 Sar. P.C.J. 493 : 13 E.R. 603; Ram Narain v. Muhammad Kadi 26 I.A. 38 : 26 C.P 227 : 3 C.W.N. 113 : 7 Sar. P.C.J. 425 and Suleiman Kadr Bahadur v. Mehndi Begum 25 I.A. 15 : 25 C.P 473 : 2 C.W.N. 186 : 7 Sar. P.C.J. 254 are not special to those cases, but such as would fall under the terms of Section 114 of the Indian Evidence Act, they should also be given due weight.
11. It is for the Court that has to find on the facts to weigh the importance of such of these and other circumstances as may exist in any particular case and to determine whether or not there was any intention to benefit the person in whose name the purchase is made. As the learned District Judge approached the decision of this question from a wrong point of view, we shall call for a revised finding on the 2nd issue.
12. It was contended before us, however, that no such finding is necessary as under Section 41 of the Transfer of Property Act, the first defendant's father allowed the 1st defendant to be the ostensible owner of the property, and to transfer it for consideration to the plaintiff. In order that this contention may be available to the plaintiff, it must also appear that the plaintiff, (1) after taking reasonable care to ascertain that the 1st defendant had power to make the transfer, (2) has acted in good faith. In the circumstances of this case, considering the relation between the parties, the answer to these two questions must depend upon the finding on issue No. 2. If the plaintiff intended to rely on Section 41 as a separate ground of claim, apart from the finding on issue No. 2, she should have pleaded the necessary facts, and an issue should have been raised on it. We do not consider that it would be proper now to frame new issues based on Section 41 of the Transfer of Property Act and to allow fresh evidence to be adduced on them. We, therefore, reject the plaintiff's contention based on Section 41 of the Transfer of Property Act.
13. In case the finding on the 2nd issue is in favour of the plaintiff it may be necessary to determine whether the 2nd defendant is entitled to any lien on the property' (issue No. 3).
14. The contention of the 2nd defendant is that she paid off the mortgage on the property executed by her son (the 1st defendant) and his father, her deceased husband; and that in any event she ought to have a right to be paid off that mortgage. On this question, the learned District Judge was under the wrong impression that the endorsement of discharge on Exhibit II (the mortgage-deed) was not proved. It was proved by the 3rd witness for the defence, and the learned Pleader for the plaintiff-respondent had to concede that the payment had been made by the 2nd defendant out of her husband's estate. Under the circumstances, considering that the mortgage was executed by the 1st defendant jointly with his father, and that at the time when the 2nd defendant paid the mortgage-debt there was a re-conveyance of the property from the 1st defendant to his father, the learned District Judge erred in holding that the presumption was that the mortgage was extinguished. It is not alleged that there was any intention to discharge the mortgage for the benefit of the plaintiff. The 2nd defendant is entitled to be subrogated to the mortgagee's rights in the event of issue No. 2 being decided against her.
15. It was argued, however, that though the 2nd defendant may be entitled to have such a claim she ought not to be given the declaration in the present litigation, and that the parties should be referred to a fresh suit for determining their rights on these facts. This course would, it appears to us, result in mere multiplicity of suits.
16. We shall, therefore, call for a fresh finding on the 2nd issue. The finding will be submitted within two months from this date and seven days will be allowed for filing objections.
17. In compliance with the order contained in the above judgment, the District Judge of Chingleput submitted the following
18. Finding--The High Court has called for a fresh finding on issue No. 2- 'Whether the 1st defendant has had full rights in plaintiff?'
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19. I hold that the 1st defendant acquired no interest in the property and accordingly find issue No. 2 in the negative.
20. This second appeal coming on for final hearing after the return of the finding of the lower Appellate Court upon the issue referred to it for trial, the Court delivered the following.
21. We accept the finding and must hold that 1st defendant at time of Exhibit I had no right in the property which he purported to convey thereby. He subsequently succeeded to a fractional interest (7/48) on the death of his father. Under Section 43 of the Transfer of Property Act, plaintiff is entitled to recover this fractional share subject to payment of a similar share fo the mortgage amount (Rs. 300) discharged by 2nd defendant, i.e., Rs. 43-12-0.
22. She will be given a decree accordingly with proportionate costs to each side throughout, the decree of the District Judge being set aside.