1. I have read my learned brother's judgment and I entirely agree with the view taken by him of the evidence in regard to the different items of property. While the burden of proving that the house's and land in dispute belonged to Mahomed Ghouse Maracayer and not to the persons in whose names the title-deeds stand is upon the plaintiff, I agree that the plaintiff has discharged the burden in this ease. There seems to be no doubt that the bulk of the papers and accounts . left behind him by Mahomed Ghouse had come into the hands of the defendants and it is safe to presume that if they contained anything favourable to the defendant's case, they would have been produced. In the letters we have, there is nothing to suggest that Mahomed Ghouse was making gifts of houses or land to his wife or to his daughters. Exhibit B9 in which reference is made to the acquisition in the names of the children' suggests strongly that that was not so the letter is a private communication between Mahomed Ghouse and his own son-in-law and if he had made gifts of the houses in Negapatam to his wife and children, it is to be expected that he would have said so in such a letter when referring to the property. But nothing of the sort appears in that or any other letter which we have in evidence.
2. I quite agree with my learned brother's view that- the -plaintiff need not prove that Mahomed Ghouse was contemplating insolvency or intending to defraud his creditors. There is nothing improbable in the suggestion that he was merely acting as a prudent trader according to his lights in placing a good deal of his property in the names of members of his family : and in the absence of anything in his letters to show that he did not intend to retain the ownership of the houses and lands in dispute, I find no difficulty in accepting the evidence afforded by the facts that the money was provided by him, that the rents and profits of all the property were collected by his agents and brought to one account and that was his account, and that there was no separate account for the profits which are claimed to have belonged to Muthukanni or her daughters as sufficient proof of a series of benami transactions which might perhaps have prevailed to deceive a person unable to have access to so much evidence as the plaintiff has succeeded in putting before the Court. As to the moveables I agree with the estimate of value arrived at by my learned brother and I agree with the decree which he proposes to make.
Sadasiva Aiyar, J.
3. These are four connected appeals arising out of Original Suit No. 15 of 1908 on the file of the Subordinate Judge's Court of Negapatam. Appeal Suits Nos. 139 and 210 of 1910 have been filed against the preliminary decree in a partition suit among Muhammadaus, and Appeal Suits Nos. 224 and 225 of 1911 out of the final decree in that same suit. First defendant is the appellant in Appeal Suit No. 139 of 1910 and in Appeal Suit No. 224 of 1911. Thirteenth defendant is the appellant in the two other appeals.
4. The facts have been clearly and exhaustively set out in the very careful judgment of the Subordinate Judge and it is unnecessary for me to mention them in detail. I shall, therefore, merely state the important facts. Mahomed Ghouse Maracayer, who traded under the style of Ma Mu, died on the 22nd October 1904, leaving- large properties. The plaintiff is his widowed sister and the defendants Nos. 1 to 3 are his daughters by his wife Muthukanni who died a few weeks before him. He carried on a large trade in Penang and places near Penang from 1882 till his death. The immoveable properties mentioned in part 2 of schedule 2 of the plaint and the moveables in part 1 of the same schedule belonged to him at his death according to the plaintiff's case. According to the case of defendants Nos. 1 to 3, except items Nos. 1 to 5 and the portion of item No. 23, the rest of the immoveables in this part 2 of schedule 2 belonged to Mahomed Ghouse's deceased wife, Muthukanni, partly and partly to herself and to her three daughters. The contesting defendants relied mainly on the title-deeds of these properties standing in the name of Muthukanni or in the names of herself and her three daughters. One document, Exhibit 21, relating to item No. 8 stands in the names of Muthukanni, of 1st defendant's daughter and of 3rd defendant's daughter. The 2nd issue in the suit is 'whether Muhammad Ghouse deceased purchased items No. '6 to 18 and 19 to 22 and 3 veils in item 23 of part 2 of schedule 2 in the name of his wife, Muthukanni deceased, and daughters, defendants Nos. 1 to 3, with his funds and benami for him, and were they in his enjoyment as such ?'
5. Coming to the dispute about moveables, the 1st defendant contended that none of the moveables mentioned in part 1, schedule 2 of the plaint were left by Mahomed Ghouse Maracayer (1st defendant's father) at his death, while plaintiff and defendants Nos. 2 and 3 contended that those moveables were so left by him, defendants Nos. 2 and 3 throwing the blame for the suppression of those moveables on their elder sister (1st defendant) and claiming their shares in those moveables from the 1st defendant. The first issue in the case relates to the dispute about the moveables and is as follows :
Whether the deceased Mahomed Ghouse Maracayer left any and what moveables Who are in possession of the same ?
6. So far as regards item 14 of the immoveables, the 12th defendent's claim to that property was allowed by the lower Court and that property is not involved in these appeals.
7. I shall consider briefly each of the two important issues 1 and 2 above set out. The burden of proving that properties standing in the name of A really belong to B is, no doubt, on the person who sets up that case : but having regard to the practice of traders in India as set out by Mr. Mayne in his Hindu Law (apt quotations from which appear in paragraph 5 of the judgment of the Subordinate Judge), and having regard again to the well-known custom among the Maracayer merchants of the Tanjore District which is spoken to by the plaintiff's 1st witness in the very first sentence of his cross-examination by the 1st defendant's Vakil, the heaviness of the burden of proof should not be exaggerated in this case. When benami transactions are in question, the difficulty and anxiety felt by the tribunals in arriving at the truth are, no doubt, great and one is tempted to wish that the Legislature strictly enacted that a man who puts his properties in the name of another and even creditors of his who lend him moneys after the date of his so putting properties in another's name shall be absolutely estopped from setting up the benami nature of the transactions. I am not even sure that, in the long run, the gain to the community by the promotion of honesty and character among its members may not out weigh the injury done to individuals by benamidars taking advantage of such legislation to cheat their principals and the subsequent creditors of their principals. But Courts pf Equity under the influence of eminent Lord Chancellors have allowed the circumvention of even the Statute of Uses (by the device of uses upon uses) and I find that the Privy Council have accepted benami transactions as necessary evils and oven the Indian Legislature in sections 81 and 82 of the Trust Act has recognised benami transactions as enforceable against the ostensible owners of the property. When law was too harsh, primitive and technical, and when law and equity were different and in some respects even antagonistic systems, the tricks or devices by which equity cheated or (to use the usual milder word) 'avoided' the law might have been necessary. A benami purchase was held in equity to give rise to a resulting trust in favour of the person with whose purchase-money the property was purchased in the name of another. It may be that in England such purchases were not necessarily or in the majority of cases made in contemplation of fraud, present or future, and so English Courts of Equity might have been justified in creating a resulting trust in such cases. But in India, the countenance given to benami transactions by the Court and the Legislature has been probably productive of at least as much evil as good, especially as while in English Law the exceptions to the rule of resulting trust were numerous including the presumption of advancement if the purchase-deed stood in the name of wife or child (whether legitimate or illegitimate), the exceptions are much narrower in India. Of the five kinds of resulting trusts favoured by Equity (See Chapter 4 of Snell's Equity), it seems to me to be advisable for the Indian Legislature to abolish the first kind (namely, that resulting from benami purchases) and to treat such purchases as conferring titles on the ostensible beneficiaries under the title-deeds. But as the law stands at present, Courts of justice have to recognise benami transactions as valid and to treat one who purchases property for his own benefit in the name of another as the real owner of the property, though the law requires, no doubt, strong proof on the point.
8. In cases of benami transactions, the most important considerations are (a) from whose pocket did the purchase-money come for the purchase of the property : (b) do the circumstances show that the purchase was intended for the benefit of the person whose money was paid : (c) who has been in possession of the property purchased and who has been in the enjoyment of its profits ?
9. The learned Subordinate Judge has, as I said before, dealt fully with the evidence in the case and I accept almost wholly all his observations, notwithstanding the detailed criticisms of the judgment and the discussions of the material portions of the evidence by the learned Vakils for the appellant. On one or two points, the learned Subordinate Judge has stated the effect of the evidence rather too strongly. For instance, he says in paragraph 6 of the judgment that the letters B series contain clear indications that he, Mahomed Ghouse, apprehended risk of failure in his trade at Penang and his consequent insolvency' and that Exhibit B affords conclusive evidence of his contemplation of his insolvency in his trade'. I do not think that the letters are written in such a despondent tone, though they do indicate that Mahomed Ghouse Maracayer had an intention to screen most of the properties purchased in the Tanjore District with his funds from the knowledge of his creditors, especially the Nattukkottai Chetti firm trading by the style of T. A. which was his principal creditor. In Exhibit B9 written from Negapatam to his son-in-law, Asana Maracayer, (now deceased), he writes : You,' (i.e., his son-in-law) need not tell the Chetti that we are purchasing properties here. I have borrowed Rs. 550 here giving some other account.' All these properties ' (that is properties in the Tanjore District) have been purchased only in the name of the children.' Thus Mahomed Chouse Maracayer was capable of trying?' to conceal the truth from his creditors. His cloth trade was sometimes flourishing and sometimes not, and he was never free from debts (See P.W. No. 10 and P.W. No. 1), though his position was never so had that he could be said to have feared insolvency as a probable contingency. All that appears is that he wanted to have some property to fall back upon in his native District of Tanjore (especially house property in Negapatam) as there might be a probability (though it may be a remote probability) of loss in his cloth trade.
10. So far as house properties items 19 and 20 are concerned which were purchased under Exhibits 42 and 20 in 1895', the evidence is overwhelming that they were purchased not only with Mahomed G-house's moneys but for his benefit in the names of his wife, Muthukanni, and of his three daughters. As regards items Nos. 11, 12 and 13 (title-deeds Exhibits 18, 19, 15 and 17 standing in the name of the wife alone), the evidence as to the source of funds is very meagre but they all have been dealt with along with the other properties as Mahomed Ghouse's properties, the rents and profits are entered in his day-book, Exhibit M, which is described as the day book of Ma Mu (the trade Vilasam of Mahomed Ghouse Maracayer), though his wife's name appears in the pages of the book : and the Municipal scavanger fee receipts and toll receipts and the house rent receipts, etc., all stand in Mahomed Ghouse Maracayer's name (see N series, L series, and F series). So far as the items. Nos. 1 to 10, 15 and 21 to 23 are concerned, the evidence is very strong to show that the purchase moneys came from Mahomed Ghouse's fund and that the rents and profits were received by his agents and entered in his accounts. As regards items Nos. 17 and 18, the 2nd defendant (and her husband the 13th defendant) set up that item No. 17 belonged to 2nd defendant's deceased, 2nd husband, Rasulalla (Irsalla) Pichai, that item No. 18 was obtained on mortgage in the names of Muthakanni and Irsalla Pichai and that item No. 17 and half of item No. 18, therefore, belonged to Irsalla Pichai and not to Mahomed Ghouse Maracayer at all. No title-deeds are produced on either side, but the entries in the day-book M. (see entries in page 29 of the 10th and 15th May 1899), the Municipal receipt N8, the rent receipt N14, the plaintiff's evidence taken on commission and the other probabilities and circumstances referred to by the Subordinate Judge prove that Mahomed Ghouse was recognized as the owner and was in possession of these properties also by receipt of profits just as he was recognised as owner in possession of the other properties. The 13th defendant's Appeal No. 210 of 1910 is based (as regards the immoveables) on almost the same contentions as the 1st defendant's Appeal No. 139, except that there are contentions added in No. 210 in respect of these items Nos. 17 and 18 which I have now dealt with and in respect of one veli of land included in plaint item No. 23(4 velis) which I shall now deal with.
11. As regards this one veil, the special contention of 2nd defendant is that it was gifted to her by her father in 1895 at her third marriage. There is no proof that possession was given to her of this one veli and though the gift may not be invalid, as being the gift of an undivided one veli out of a block of one veli and odd in the absence of proof as to the donor's having placed the donee in possession, such a gift is clearly invalid under the Muhammadan Law [see Fakir Nynar Muhamed Rowther v. Kandasami Kulathu Vandan 14 Ind. Cas. 993 : 35 M.J 120 . That his wife and his three daughters and the husbands of the three daughters [the 2nd daughter (the 2nd defendant) was married thrice and died during the pendency of the suit] had no properties worth mentioning of their own is clear from the evidence. The profits of all the properties, whether in the name of his wife or the names of his wife and daughters or the names of his wife and his granddaughters or in his own name, have all been as standing in the same footing in his accounts. I have no hesitation, therefore, in finding with the learned Subordinate Judge that items No. 6 to 13, 15, 19 to 22 and that portion of item No. 23 which is claimed to belong to Muthukanni and her daughters all belonged to Mahomed Ghouse at his death, though they were purchased in the names of his wife and daughters, wife alone or of his wife and granddaughters. As regards item No. 16, 1 agree with the Subordinate Judge that though plaintiff by mistake mentioned it as having been purchased in the name of Muthukanni, it was really Mahomed Ghouse's family dwelling-house belonging to him at his death. None of the daughters, (defendants Nos. 1 to 3) nor either of the surviving sons-in-law, (4th and 13th defendants) entered into the witness-box to contradict the strong oral and documentary evidence On plaintiff's side. The mere fact that Mahomed Ghouse kept up in Exhibit 28 the mask of his wife's and daughters' ownership as regards one of these properties in dispute, the fact that he did the same in Exhibit 3, the day before, his death as regards another property of his, the fact that plaintiff herself in Exhibit 35 acknowledged the daughter's rights in the latter property in order to escape inconvenience in drawing deposited moneys out of Court and in order to defraud a woman, Kathiya Bibi, who set up rights as widow in Mahomed Ghouse's properties and against whom plaintiff and defendants Nos. 1 to 3 acted together, these facts do not outweigh the really strong evidence on plaintiff's side showing that the disputed immoveable properties all belonged to Mahomed Ghouse Maracayer at his death.
12. Coming now to the question of moveables, part I, schedule 2 to the plaint describes the moveables under three heads. Under the first heading are entered jewels in gold and n gold-nugget, the second heading contains silver vessels and the third heading describes vessels and furniture and cattle. The total value of the gold jewels and nugget is given as Rs. 17,700, of the silver vessels as Rs. 545 and of the furniture, etc., as Rs. 4,968. The oral evidence on this point consists of the plaintiff's evidence taken on Commission and the evidence of plaintiff's 1st and 12th witnesses. There is probably exaggeration in the oral evidence as regards the value of the moveables, (sic) seeing that the 1st defendant audaciously denied in her written statement the existence of any moveables whatever and seeing that there is no evidence on the defendants' side to contradict the evidence on the plaintiff's side, we have to accept the said evidence, except when it is quite clear that it is false or exaggerated. Just as the defendants Nos. 1 to 3 and 13 have been suppressing the account books and the correspondence of the deceased Mahomed Ghouse Maracayer, so the 1st defendant is keeping back a list of the moveables, a list proved by the evidence of P.W. No. 1 and P.W. No. 5 to have been prepared in the presence of the said defendants by P.W. No. 12 soon after Mahomed Ghouse Maracayer's death and which list was left with the 1st defendant. The existence of jewels, etc., worth not less than Rs. 15,200 is proved by the evidence of the witnesses for the plaintiffs above mentioned, that is, witnesses Nos. 1 and 12 and the plaintiff herself. , That they were left in a safe in the house No. 20 in the custody of 1st defendant and that 1st defendant is still in possession of the house are also proved by the evidence. The finding of the Subordinate Judge, therefore, that 1st defendant is the party liable to account for those moveables seems to me .to be correct. As regards the value of a golden watch chain left by Mahomed Ghouse Maracayer, the plaint describes its value as Rs. 850, whereas P.W. No. 1 who is- plaintiff's own son-in-law says that it was worth only Rs. 200. Again as to the silver vessels, the plaint describes them as worth Rs. 540, whereas the plaintiff's 1st witness values them at Rs. 740 and plaintiff's 12th witness at Rs. 500. Again as regards other moveables, the plaintiff values them at Rs. 4,968, while plaintiff's 12th witness values them at about Rs. 4,000. Plaintiff's 1st witness gives the value of 36 Andas at Rs. 1,500, whereas the plaint itself values them at Rs. 700 or (with the Sattaras) Rs. 800. Taking the lowest values out of those given in the plaint and in the oral evidence, the moveables seem to . be worth about Rs. 19,700 (Rs. 15,200 as the value of the gold jewels etc., Rs. 5.00 for silver vessels etc., and Rs. 4,000 for the other moveables). In the result I would modify the decree passed in the suit by allowing to plaintiff and to defendants Nos. 2 ,and 3 the values of their share's in the moveables as against 1st defendant on the basis that the said moveables are worth Rs. 19,700 instead of Rs. 23,213, the value put upon them- in the plaint and by the learned Subordinate Judge.
13. In other respects the decrees will be affirmed. The 1st defendant will pay plaintiff's costs in Appeal No. 139 of 1910 and Appeal No. 224 of 1911 (one set), while the 13th defendant will pay plaintiff'-s costs in Appeals Nos. 210 of 1910 and 225 of 1911 (one set). The other parties will bear their respective costs in the appeals.