1. This is an appeal by the Official Assignee against an order passed by my learned brother Waller, J., sitting in the insolvency Court. The appeal refers only to five items of the properties that are in dispute, namely. Items Nos. 1 and 9 to 12. There is no question about the other items before us. The Official Assignee claims that these properties are really properties of the insolvent, Vadivelu Gramani, and as such he is entitled to realise them for the purpose of paying off his creditors. Item No. 1 was purchased in the year 1901 for a sum of Rs. 350 under Ex. VII, and Items Nos. 9 to 12 were purchased in 1896 for a sum of Rs. 475 under Ex. VIII. Exhibit VII is in the name of both Murugammal and her son Vadivelu Gramani, whereas Ex. VIII stands exclusively in the name of Murugammal. Before the Official Assignee can get these properties, the burden is on him to establish the case he has put forward in Court, namely, that these properties really belonged to Vadivelu Gramani's father, Kanniappa Gramani; that they were purchased in the name of his wife and son benami for himself; and that after the death of Kanniappa Gramani, the properties became vested in his son Vadivelu Gramani. The learned trial Judge has come to the conclusion that the Official Assignee has failed to prove that the properties did really belong to Kanniappa Gramani. After hearing the arguments of the learned advocate for the appellant, I am of opinion that the learned Judge's judgment is correct.
2. Originally there were 13 items in dispute. Of these 2, 7 and 8 were clearly proved to have been the properties of Vadivelu Gramani's maternal grandfather and to have been given to Murugammal by him. The case of the respondent is that the other properties also were purchased by Murugammal's father and given to her and that her husband had nothing to do with them.
3. It is contended for the appellant that there is a presumption that where a property stands in the name of a Hindu wife, it really belongs to the husband and the burden is on the wife to prove that it is not so and it is her own property. To uphold such a presumption it is necessary for the person who wants to make out that the property is not the property of the person in whose name the document stands to establish that the money for their purchase came from the husband. If that is established there may be ground for saying that we should presume that the property was really the husband's bought in the name of his wife benami. Without proof of that kind it is not possible to hold that the burden is in the first instance on the woman to prove her ownership.
4. Then it is argued that the circumstances proved in this case show that the properties did not belong to Murugammal or at any rate there is sufficient evidence to shift the burden on to Murugammal to show that the property really belonged to her and that her husband had no claim to it.
5. Murugammal on behalf of herself and her son mortgaged all the 13 items to one Joshi in 1912. Later in the same year, to discharge that mortgage she mortgaged Items Nos, 1, 6, 9 to 13 to another sowcar one Boodmull sowcar. This time the mortgage stood in the name of the mother alone and Joshi's mortgage was paid off. Subsequently the other sowcar brought a suit upon his mortgage impleading the mother and her son. The mother seems to have pleaded that she had no interest at all in those properties and that her mortgage was an invalid one. The son contended that the properties belonged to him. The mother and the son put in two written statements and these are strongly relied upon by the appellant as showing that the property does not belong to the mother. It is true that Murugammal stated so in her written statement and she must explain it. The explanation which she gives is that she was induced to sign the written statement by one Chokkalinga Mudali who was helping her at that time to defeat the rights of the sowcar and that she was not aware of what was stated in the written statement. The learned trial Judge has accepted that explanation as being a true one. He observes:
It does not, in my opinion, furnish a safe ground for decision. Litigants in this country have an unfortunate habit of putting forward in defence not the truth, but the particular lie that happens to suit them at the moment.
6. I think that that explanation is a correct one; she wanted to evade the liability to the sowcar. As a matter of fact the Court in which she filed the written statement did not accept it as true and passed a decree for the properties against Murugammal. The insolvent, Vadivelu Gramani had also a decree passed against him but on appeal to the High Court that decree was set aside and he was exonerated but the decree was confirmed as against the mother and the properties. In pursuance of that decree the properties were sold and the decree-holders themselves purchased them. The respondent before us Natesa Gramani, claims as a purchaser from those decree-holders. Unless we can hold that the mother, Murugammal, had no interest whatever in these properties and that they were her husband Kanniappa Gramani's and passed on his death to. Vadivelu Gramani, the Official Assignee has no case whatever. (After discussing his Lordship continued.) There is no evidence on the side of the Official Assignee to show that any portion of the purchase money came from the husband's pocket. No presumption can therefore be drawn that these properties belonged to the husband of Murugammal and were purchased by him.
7. As regards Item No. 1 the sale-deed in respect of this property stands in the name of both Murugammal and her son, the insolvent, Vadivelu Gramani. It is suggested that as regards this item at least the Official Assignee should get a half share on the ground that the document stands in the names of both the mother and the son. This might have been a good ground if it had been taken before the learned trial Judge but no point seems to have been made about it. The only case put forward by the Official Assignee was that both the sales were benami whether in the name of the wife and the son or of the wife alone for the husband's benefit, that is, for Kanniappa Gramani. As that case has failed we cannot allow a new case as regards the first item alone to be set up now. In the result the appeal fails and is dismissed with taxed costs.
Venkatasubba Rao, J.
8. I entirely agree and my only reason for delivering a separate judgment is that a somewhat novel but wholly fallacious argument has been advanced before us with which I should like to deal shortly.
9. It is contended that when a property stands in the name of a Hindu lady it should be presumed that the real ownership vests in the male members of her family. In the case of a Hindu married woman, her family is the family of her husband and according to this contention, any property standing in her name must be presumed to belong to her husband, her brother-in-law or her son as the case may be. This argument involves in the first place that we must presume that a lady in whose name the property stands is not its owner and that we must secondly presume that the male members of her family are the owners. I cannot conceive of a more illogical or dangerous doctrine. Is there any reason for starting with the presumption that a person is not the owner of a property when the document says she is? Is there again any reason for assuming without proof that the transaction had its origin in some act of the person related in a particular manner to the lady, in whose name the document stands?
10. For this somewhat strange contention the appellant's learned counsel relied upon Chunder Nath Moytro v. Kristo Komul Singh 15 W. R. 357 and Nobin Chunder Chowdhury v. Dokhobala Dasi  10 Cal. 686 On the facts, the decisions in these cases may be perfectly correct but if there are any observations in the judgments which may be construed as to lend support to the contention put forward, I must most respectfully but emphatically disagree with them. I may refer to Narayana v. Krishna  8 Mad. 214 where it was held that when property stands in the name of a female member of a Hindu family, there is no presumption that it is the common property of the family. The person who asserts that the owner is different from the one whose name appears on the face of the document, must prove what he asserts. This is what Waller, J., has held and I have always understood it to be undoubted law. The following passage in a recent judgment of the Privy Council in Sura Lakshmiah Chetty v. Kothandarama Pillai is relied on by the appellant's learned counsel:
There can be no doubt that a purchase in India by a native of India of property in India in the name of his wife unexplained by other proved or admitted facts is to be regarded as a benami transaction by which the beneficial interest in the property is in the husband, although the ostensible title is in the wife.
11. This sentence does not in the least help the appellant. It takes for granted that the husband made the purchase but that the sale was taken in the name of the wife. The very next sentence in the judgment shows that the observations do not support the present contention. It runs thus:
The rule of the law of England that such a purchase by a husband in England is to be assumed to be a purchase for the advancement of the wife does not apply in India.
12. Their Lordships reiterate in this case a principle which they have often laid down, namely, that where a husband or a father pays money and the purchase is taken in the name of the wife or children, there is no presumption under the general law of India of intended advancement as there is in England, Kerwick v. Kerwick A. I. R. 1921 P. C. 56. The recent Privy Council decision does certainly rot go beyond this. There is clearly no warrant for the proposition that there is a presumption that a female in whose name the property stands is not the owner of it. The correct rule, however, is, that if it is found that the purchase money came from a certain source, it is assumed until the contrary is shown, that the person who supplied the purchase money is the owner of the property. The purchase-money might have been supplied by a male relation belonging to the lady's family or by any other person. The contention put forward is opposed both to reason and to law.
13. I do not propose to enter into a discussion of the facts of the case which have been fully dealt with in my learned brother's judgment. I agree that the judgment of Waller, J., the trial Judge, is correct; and the appeal fails. I agree in the order made by my learned brother.