1. This case raises a question relating to the admissibility of a plea of benami in a matter arising under Section 4 (h) of Act IV of 1938. The petitioners here were the judgment-debtors who filed an application under Section 23 of the Act to which the respondent, the decree-holder, pleaded that she came within the exemption of Section 4 (h). As against this plea, it was urged that she was entitled to a mortgage debt evidenced by Ex. A, a bond of the year 1920 for a sum of Rs. 4,500. She met this contention by adducing evidence that she was not the owner of the mortgage bond but a benamidar for her adopted son.
2. This evidence has been accepted by the Court below and the only, question arising in revision is whether the lower Court was entitled to go into such a contention. We have no doubt held in cases falling under the explanation to Section 8, that it is not open to the Court to entertain evidence that some one other than the creditor in the document is, in fact, the owner of the debt so as to make him the creditor for the purpose of renewals. This decision, Varadarajam Pillaii v. Krishmmurthi Pillai : AIR1941Mad321 was based on the definition of the term creditor which does not include a person beneficially entitled to the proceeds of the debt. One of us had to deal in Suhba Reddi v. Venkatappa Reddi : AIR1941Mad596 with a case in which there was a decree on a promissory note and the decree-holder endeavoured to adduce evidence that the debt was really due not to himself but to a woman entitled to plead the exemption in Section 4 (h). It was held that, whatever be the liability of the decree-holder to other persons, the liability of the judgment--debtor is to the decree-holder and nobody else and the Court could not go into the question of the real ownership of the proceeds of the decree.
3. We are, however, in the present case not concerned with the question who is the creditor or who is the decree-holder. There is no doubt in the present case that the decree-holder is a woman and that she is entitled to the exemption of Section 4 (h) unless she is disqualified as being the owner of the debt evidenced by Ex. A. The question is not, therefore, whether she is a creditor under Ex. A, having regard to the definition of creditor in this Act, or whether she is the person entitled to sue on Ex. A, but whether she is in fact the owner of the proceeds of that debt whenever it may be collected. This is a pure question of ownership to which the ordinary law applies and we can see no reason why it Should not be open to the lady in question to adduce evidence that, though the mortgage stands in her name, her son is really entitled to the proceeds thereof and she is not beneficially interested therein. We may also refer to the decision of the Full Bench in Venkatarama Reddiar v. Valli Akkal (1934) 68 M.L.J. 81 : I.L.R. Mad. 693 (F.B.). The result, therefore, is that the Civil Revision Petition is dismissed with costs.