1. This is an appeal under Clause 15 of the Letters Patent against the judgment of Chandrasekhara Aiyar, J., dismissing an appeal from the Additional Judge of the City Civil Court at Madras. The suit was instituted by the first respondent herein for partition of the properties in suit consisting of two items of immoveable property and for delivery to her of one share thereof, the other share to be delivered to the second defendant. The plaintiff and the second defendant are the daughters of the first defendant by his first wife, one Marimuthu Ammal, who died on the 19th February, 1943. The suit was brought on the basis that the two items of immoveable property belonged absolutely to Marimuthu Ammal, and on her death, devolved in equal shares on her two daughters, the plaintiff and the second defendant. The first defendant, the father, contested the suit and claimed that Marimuthu Ammal, his deceased wife, had no title to either of the properties.
2. The case for the plaintiff was that in regard to the first item of property, the first defendant conveyed it absolutely to her mother by a deed of settlement dated 22nd September, 1923. The case of the first defendant was that the settlement deed was executed nominally and was not intended to be operative. The second item of property was purchased on the 4th January, 1924, for a consideration of Rs. 800 and the sale deed was taken in favour of the plaintiff's mother, Marimuthu Ammal. The sum of Rs. 800 was made up of Rs. 260 paid in cash at the time of the registration of the sale deed and the balance was the amount due to Marimuthu as the mortgagee under the deed of mortgage dated 14th September, 1923 (Ex. D-17) which had been executed in her favour by the vendor to secure a sum of Rs. 500. The case of the first defendant in regard to this item was that the consideration was provided by him and it was not intended that the wife, Marimuthu, should have any title to the property. The learned Additional Judge of the City Civil Court, after a consideration of both oral and documentary evidence, held that Marimuthu, the mother of the plaintiff and the second defendant, was absolutely entitled to both the properties. He held that the settlement deed in respect of item 1 and the mortgage deed and the sale deed in respect of item 2 were not benami transactions but transactions intended to convey beneficial interest to Marimuthu. The learned Judge came to this conclusion in view of the evidence adduced in the case that the first defendant was at the time, of the transactions keeping a concubine and the transactions were brought about in favour of the wife at the suggestion of common friends, because it was apprehended that the first defendant might squander away the properties of the concubine. The evidence pointed to the conclusion that the settlement deed and the mortgage taken in the name of the first defendant's wife, both of which took place at a short interval, were intended to make a provision for Marimuthu, the first defendant's wife. The learned Judge of the City Civil Court, therefore, granted a decree in favour of the plaintiff for a half share in the two items of property. There was an appeal to this Court by the first defendant and the learned Judge, Chandrasekhara Aiyar, J., agreed with the trial Judge in the findings in respect of both items 1 and 2. He confirmed the decree of the lower Court and dismissed the appeal. The first defendant has filed an appeal against the decree and judgment of Chandrasekhara Aiyar, J., but has confined his claim to item 2 only. The Letters Patent Appeal is concerned only with the title to item 2.
3. Learned Counsel for the appellant relied upon the concurrent findings of the learned trial Judge and the learned Judge of this Court that the consideration for the mortgage as well as the sale in respect of item 2 was found by the first defendant. He contended that as there was no presumption of advancement in this country when property was purchased by a husband with his own funds in the name of his wife, it followed that the first defendant was entitled to the property so purchased. He relied for his contention on three decisions of the Judicial Committee, Lakshmiah Chetti v. Kothandarama Pillai (1925) 49 M.L.J. 109 : L.R. 52 IndAp 286 : I.L.R. 48 Mad. 605 (P.C.), Guram Ditta v. Ram Ditto (1928) 55 M.L.J. 651 : 55 I.A. 235 : I.L.R. 55 Cal. 944 (P.C.) and. Shambhu Nath Shivpuri v. Prishka Nath (1944) 2 M.L.J. 348. It is not necessary to make a detailed reference to the latter two cases which dealt with a deposit by a Hindu of money in a bank in the joint names of himself and his wife, and it is sufficient to refer to the case of Lakshmiah Chetti v. Kothandarama Pillai (1925) 49 M.L.J. 109 : L.R. 52 IndAp 286 : I.L.R. 48 Mad. 605 (P.C.), which was a case where the husband purchased the property in the name of his wife with his own money. The law on the point was thus laid down at page 608 of the report by Sir John Edge:
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.
4. It is clear from the rule thus enunciated that the fact that the consideration for a purchase has been found by the husband is not conclusive against the wife in whose name the property had been purchased. It is only when the purchase is ' un-explained by other proved or admitted facts ' that the conclusion should follow that the transaction is benami for the husband. In this case, the learned Judge who tried the case as well as the learned Judge of this Court who heard the appeal have found facts admitted and proved which gave an adequate explanation for the transaction in the name of the wife. Chandrasekhara Aiyar, J., agreeing with the Court below, held on a consideration of the surrounding circumstances and the probable causes likely to have operated on the minds of the parties to bring about the transaction, that the mortgage and the sale were taken in the name of the wife, with the object that the property should belong to her and that it should not be within the reach of the first defendant, as it was feared that he might dissipate it. I have no hesitation in agreeing with the learned Judge.
5. It was contended by learned Counsel for the appellant that the plaintiff was not entitled to any relief in respect of item 2 because of the pleading in paragraph 4 of the plaint that item 2 was purchased by her mother with her own moneys. We are not impressed with this contention because this averment is followed by the assertion that the plaintiff's mother was in sole and absolute ownership and possession of the said properties. Further, the evidence on which the learned trial Judge came to the conclusion that the transaction was not benami was in great part evidence adduced on behalf of the first defendant himself. I do not think that the first defendant was prejudiced in any way in the conduct of his case because of the defect in the allegation in the plaint.
6. As I am in complete agreement with the conclusions of the learned trial Judge as well as the learned Judge of this Court on appeal, it is not necessary to deal at length with the evidence in the case. It suffices to mention that though Marimuthu Ammal lived for a period of nearly 20 years after the transactions in respect of items 1 and 2, there was no attempt on the part of the first defendant to obtain from her any acknowledgment of the title of the first defendant, if really the case of the first defendant was bona fide. On the other hand, nearly ten years after the date of the transactions, in a mortgage executed on the 12th April, 1933, Ex. D-7, to which the first defendant was also a party, he subscribes to a statement that his wife, Marimuthu, was absolutely entitled to both items 1 and 2. The evidence of the common friends who mediated between the husband and the wife also supports the conclusion arrived at by the trial Judge. D.W. 2, for instance, says that:
there were always quarrels beween him (first defendant) and his wife and as we thought he would squander away his property, we brought about this settlement deed.
D.W. 3 said that:
as he was keeping a concubine we made him settle the property on his wife.
7. There are no merits in this appeal which fails and is dismissed with the costs of the first respondent.
Frederick William Gentle, C.J.
8. I agree and have but a few words to add. It was common ground that the object of placing the properties in the name of the wife was to prevent its dissipation or the proceeds of sale from being dissipated upon the husband's concubine. It was urged on behalf of the appellant that, effecting the transaction nominally in the name of the wife, would safeguard the properties. Clearly, that would not be so, if the property remained that of the husband; he could do whatever he liked with it. It could only be, when the interest and title in the property passed to the wife, that it was safeguarded from dissipation either by the husband upon the concubine or by the concubine herself.