(1) The facts of this second appeal are within a very short compass, and the question is whether, in reversing the judgment and decree of the first court, the learned Additional Subordinate Judge in the first appeal has not committed a palpable error of law and thus arrived at a wrong conclusion altogether. The facts are as follows:
(2) The suit was by one Lakshmi Ammal. the widow of a certain Lakshminarayana Aiyar, for declaration of title and permanent injunction with regard to a piece of property, measuring 38 cents in S. No. 130/3 in Ochalam village, Arkonam taluk. The following facts are not in dispute. The property originally belonged to one. Subbarama Aiyar, D.W. 1, and, from him, the plaintiff (Lakshmi Ammal) purchased this property under Ex. B. 1 for Rs. So on 10-12-1939. The plaintiff claims that, after the purchase, there was mutation of registry in her name, and that she was enjoying the suit property by leasing the property to others. The defendant is the legatee of the properties of Lakshminarayana Aiyar under a will executed by Lakshminarayana Aiyar, who died on 19-3-1955. The case of the defendant is that the plaintiff did not purchase this property and did not advance moneys for the acquisition.
The property was purchased by the husband of the plaintiff (Lakshminarayana Aiyar) with his own funds, benami in the name of the wife. The reason was that the vendor, Subbarama Aiyar, was living in another village, and he found it inconvenient to proceed to the Registrar's office for registration of the document of sale. The husband of the plaintiff had a power of attorney from this vendor for the purpose of registration, and, hence, the parties arranged that the wife (plaintiff) should be a purchaser benami for her husband. Lakshminarayana Aiyar has dealt with this property as his property under his registered will (Ex. B. 3) where he has devised his properties in favour of the defendant. The defence set up was thus a ease of benami, affirming the title of the testator. It was also alleged that the plaintiff never had any possession or enjoyment in the property within the statutory period.
(3) The trial Court went into these issues fully and with care, and held in favour of the ostensible title of the wife. Indeed, unless the defendant had thoroughly substantiated the plea of benami, it is difficult to see how any other conclusion is possible. The title deed is in the name of the wife, and the amount of sale consideration Rs. 50 is a small sum which the wife could have well provided out of her own funds, as she has sworn. The patta was transferred in her name, and, till Lakshminarayana Aiyar died on 19-3-1955, there is absolutely nothing to show that possession and enjoyment was not with the wife, as the holder of title. The case of the defendant is that it is Lakshminarayana Aiyar who had the possession and enjoyment; obviously, when it is a question of husband and wife who are living together, the presumption cannot be drawn that the husband is in possession to the exclusion of the wife, particularly where the sale has been followed by transfer of registry. The defendant comes into the picture if at all, only after 1955, and, admittedly, the defendant filed a suit (O. S. No. 133 of 1956) under S. 9 of the Specific Relief Act, claiming dispossession of his lessee by the plaintiff. For these reasons, it is clear that, unless the defendant satisfied the court that the holder of the ostensible title (Plaintiff) was not the real owner, but that she was a benamidar for her husband, the plaintiff is bound to succeed and the appeal will have to be allowed.
(4) The first appellate court reversed the decree of the trial Court in a judgment in which there appear to be several errors and misstatements of fact. The law is also erroneously stated in a portion of this judgment. True it is that the Judicial Committee observed in Sura Lakshmiah Chetti v. Kothandaram Pillai that a purchase by an Indian husband of property in India in the name of his wife, unless otherwise explained, would be presumed to be a benami transaction, by which the beneficial interest in the property is in the husband, and the ostensible title in the wife. That the English doctrine of advancement of funds cannot he legitimately applied to India, was also pointed out in Palani Mudaliar v. Natarajan, : AIR1942Mad503 . But these dicta have nothing whatever to do with the present facts, and they have been misunderstood. It is only where the husband purchases the property in the name of his wife, the primary test being the provision of funds by him therefor--that the presumption can at all arise. There is not, and there never has been, any provision in the law of property in this country, preventing a married woman from acquiring property for herself, or raising any presumption against her title purely upon a disqualification attached to her sex.
(5) In the present case, the evidence very clearly shows that the wife provided the funds for the purchase and was definitely in a position to do so. The plaintiff (P.W. 1) stated in her evidence: 'The sum of Rs. So was saved and kept by me from the Siruvadu money, and this I advanced.' I find from the Tamil Lexicon (University of Madras) that 'Siruvadu' is 'small savings in money'. The learned First Appellate Judge observes-what is manifestly an error and quite an indefensible proposition-that
'any, savings effected will certainly be the property of Lakshminarayana Aiyar and not that of the plaintiff.'
The learned Judge has not understood the customary incidents of 'siruvadu' and the moneys effected by-such savings indisputably belong to the wife.
Apart from this, it cannot be said that the motive for the benami transaction is at all apparent, or even probable. The registration of the document is a subsequent stage, and it is very difficult to see why, merely because the vendor found it inconvenient to proceed to the office of the Registrar, the benami transaction should have been brought about. There is no pressure from creditors alleged, or any of the other motives which ordinarily prevail in the case of a benami transaction. As regards the subsequent custody of the document of title, the facts are really not against the plaintiff (appellant), when properly viewed. Admittedly, the defendant came to the house for the funeral of the testator and was in a position to take away the documents and papers, being the legatee under the will. Under those circumstances, the fact that it was the defendant who ultimately produced the original document of title is no indication whatever that the plaintiff g was not the true title-holder.
(6) It is true that Lakshminarayana Aiyar left a will, in which he has dealt with this property as his, along with other properties. The will seems to have been executed at Jalarpet, and Lakshminarayana Aiyar, a village munsif, was probably able to provide the details from memory. It is significant that the testator do not claim that this property was purchased benami in the name of the wife; he merely mentions it as among his properties, and, since he gave his wife a life interest in the income from all the properties, he probably thought that he had amply provided for her, and that this disposition in respect of the suit property was of no significance. Upon this single fact, it cannot be presumed that the plaintiff does not have title.
(7) In any event, it appears to me fairly clear that the true perspective of approach to the question must be that the ostensible title should be upheld, until and unless the benami is satisfactorily established. The entry in the will merely raises some conjecture or suspicion that the property might have been acquired benami in the name of the wife. That is not enough. The defendant never succeeded in displacing the initial burden of proof of a title other than the ostensible title. As regards possession and enjoyment, the facts appear to be heavily in favour of the plaintiff-appellant, and it is significant that it was the defendant who had to first come to court with an action under S. 9 of the Specific Relief Act.
(8) Hence, I am fully satisfied that the trial court was correct in decreeing the suit, and that the first appellate Court came to an erroneous conclusion resulting from a fundamentally erroneous approach to the central issue of fact. The second appeal is accordingly allowed, and the decree of the trial court is restored with costs in that court; otherwise, the parties will bear their own costs. No leave.
(9) Appeal allowed.