1. The plaintiff in this case purchased, on the 6th September 1871, the right, title, and interest of one Goloke Nath Chowdry in a twelve ganda share of an estate. Subsequent to his purchase, he applied under the provisions of Beng. Act VII of 1876 to be registered on the Collectorate as proprietor of this twelve-ganda share. He was opposed by the defendant in the present suit, Sreemutty Chowdrani, and the result of the registration proceedings was, that the plaintiff's name was registered for nine gandas only, and the defendant's name was registered for the remaining three gandas. In consequence of this order of the registration authorities, the present suit has been instituted, and the plaintiff asks in his plaint to have his title declared to the three gandas, for which the defendant's name has been registered, and to have the Collectorate register amended accordingly.
2. In order to understand the merits of the controversy between the parties, it will be necessary to go back for more than forty years, and refer to the original members of the family to which Goloke Nath and Sreemutty Chowdrani both belonged. The following is a genealogical tree, which will enable the facts of the case to be readily understood:
| | | | |
Roma Nath Ram Chunder Gopi Nath Shyam Chunder, Radha Nath.
| | | mar. Saroda
Goloke Nath Daughter Sreenath, Chowdrani.
Chowdry, only. died 1832,
mar. Sreemutty mar. Brojessuri.
defendant No. 1
mar. Kisto Moni.
3. It appears that one-anna ten gandas of Parganah Sherepore, formerly belonged to five brothers,--Roma Nath, Ram Chunder, Gopi Nath, Shyam Chunder and Radha Nath,--the interest, of each of these brothers being six gandas. Rama Nath died and was succeeded by his son Goloke Nath Chowdry, who married Sreemutty Chowdrani, the defendant in the present case. Goloke Nath Chowdry, as the heir of his father Roma Nath, became entitled to his six gandas. Ram Chunder died subsequently, and the six ganda share belonging to him was also inherited by Goloke Nath Chowdry. There was at one time a contention that one moiety of Ram Chunder's six gandas went to Gopi Nath, and that the other moiety, or three gandas went to Goloke Nath, and that Goloke Nath, upon this, became entitled to nine gandas only; but this has been found against the plaintiff, and there is no appeal upon this point. It follows that Goloke Nath was entitled to twelve gandas of the property after the death of Ram Chunder and his daughter. While Goloke Nath was so entitled to the twelve gandas, he became surety for one Jogul Kishore Sen, who was employed on the Mymensing Collectorate;and as surety for this Jogul Kishore Sen, he pledged one-fourth of his share in the property. Jogul Kishore Sen defaulted, and the Collector, under the law at the time in force, proceeded to sell the one-fourth share of Goloke Nath Chowdry's interest. This one-fourth share was three gandas, inasmuch as Goloke Nath Chowdry was, in the manner just stated, at that time entitled to an interest represented by twelve gandas. The three ganda share thus sold on the 9th June 1842 was purchased in the name of Sreemutty Chowdrani, the defendant, and this is the title to this three-ganda share upon which she relies. Subsequent to this Gopi Nath died, and was succeeded by his son Sreenath, who died in 1832; and it appears that the six gandas, which originally belonged to Gopi Nath, were also inherited by Goloke Nath. It then appeal's that Goloke Nath sold a twelve-ganda share to one Sib Dyal Tewari, and upon the same date, he and his wife, Sreemutty Chowdrani, executed, in favour of the same Sib Dyal Tewari, an izara or usufructuary mortgage, of a further six ganda share, for the period of twenty-six years. The date of this instrument was the 2nd Pous 1266, or 16th December 1859. Afterwards the share belonging to Shyam Chunder was also inherited by Goloke Nath, upon the death of Shyam Chunder's wife, Saroda Chowdrani. It would thus appear that Goloke Nath, at various times, and as the result of these successive inheritances, became entitled to twenty-four gandas. With respect to the six gandas which belonged to the fifth brother Radha Nath, we have nothing to do, and no question has been raised in this case.
4. The execution-sale under which the plaintiff purchased took place on the 6th September 1871, and the plaintiff's contention is, that the right, title, and interest of Goloke Nath Chowdry purchased by him at that sale is really an absolute title to twelve gandas of the estate,--that is, the twenty-four gandas to which Goloke Nath became entitled in the manner just described, less the twelve gandas sold by him on the 16th December 1859 to Sib Dyal Tewari. There is one further transaction which it is necessary to notice, and that is this. It appears that the six gandas which formed the subject of the izara or usufructuary mortgage of the 2nd Pous 1266, or 16th December 1859, was granted in izara to three persons, of whom one, viz., Bisso Nath, owned seven-sixteenths, Sib Dyal owned five-sixteenths, and the third, Judoo Nath, owned four-sixteenths. Bisso Nath's interest, that is seven-sixteenths, was sold in execution of a decree against him, and was purchased by Goloke Nath in the name of Kisto Moni, his son's wife.
5. The essential question with which we have to deal in this case is, whether the three gandas purchased on the 9th June 1842, in the name of defendant No. 1, Sreemutty Chowdrani, were purchased by her as her absolute property, or were really purchased by her husband, but benami in her name. The first question which it will be convenient to consider in dealing with this matter is, the burden of proof. The Subordinate Judge evidently considered that the burden of proof was upon the plaintiff, for it appears that the plaintiff was called upon to begin, and that his witnesses were first examined. In this Court it has been contended that the burden of proof ought to have been laid upon the defendant Sreemutty Chowdrani. It is said that a Hindu wife is a member of a joint Hindu family, and that the general presumption that all property acquired by a member of such a family is acquired from the joint funds, is just as applicable in the case of property standing in the name of a Hindu wife as in the case of property standing in the name of any other member and alleged to have been acquired from separate funds. In support of this contention, the case of Bindoo Bashinee Debee v. Pearee Mohun Bose 6 W.R. 312 has been relied upon. In that case Bindoo Bashinee, wife of Modhoosoodun, was the person in whose name the property was purchased, and Mr. Justice Trevor, who delivered the judgment of the Court, said: 'The plaintiff is entitled to a clear finding as to whether she held it in trust for him (that is her husband) or in her own right. That point can only be determined by her showing the source whence the money came, and as in such a case the burden is on the defendant Bindoo Bashinee, we remit the case to the Judge for the purpose of enquiring whether the three bighas and three cottahs purchased by her ostensibly from Jugomoyi Dabi and Anund Chunder Chuckerbutty in 1256 was purchased by her from her husband's money and held in trust for him.'
6. Now it would appear that the learned Judge of this Court who delivered that judgment was of opinion that, as a general rule, in cases of alleged benami, it lies upon the ostensible owner to prove that he is the real owner, if the person who impugns the ostensible title can succeed in throwing suspicion upon such title. This appears from the case of Sreeman Chunder Dey v. Gopal Chunder Chuckerbutty 11 Moore's I.A. 28. The judgment in that case in the High Court was the judgment of Mr. Justice Trevor and Mr. Justice Jackson, and in that judgment there is the following passage (p. 39 of the report): 'In a case of this nature, if the plaintiff succeeds in showing just ground for suspecting the good faith and reality of the title, which is interposed between the creditor and the realization of his dues, the Court will require the ostensible owner to do that which he alone can do, and which he can easily do if he is a bona fide owner, viz., to place beyond a doubt the reality of his ownership. In this case we think there is ample ground for putting the defendant Sreeman Chunder to such proof.' When that case came on appeal before the Privy Council, their Lordships said (pp. 43 and 44 of the report): Undoubtedly, there are in the evidence circumstances which may create suspicion, and doubt may be entertained with regard to the truth of the case made by the appellant; but in matters of this description it is essential to take care that the decision of the Court rests, not upon suspicions, but upon legal grounds established by legal testimony': and they were of opinion that it lay, not upon the defendant Sreeman Chunder to show that the property was purchased with his own money, but upon the plaintiff to show that the judgment-debtors on whose behalf the purchase was alleged to have been made were the persons who supplied the purchase-money. It therefore appears to us, that the general principle laid down by Mr. Justice Trevor in the case of Bindoo Bashinee Debee v. Pearee Mohun Bose 6 W.R. 312 and followed by him in the subsequent case to which we have just referred, has been overruled by the Privy Council. But it is said that there is an essential difference between the case of Sreeman Chunder Dey v. Gopal Chunder Chuckerbutty 11 Moore's I.A. 28 and the present case, inasmuch as that was not the case of property purchased in the name of a Hindu wife. We are inclined to think that the judgment in the case of Bindoo Bashinee Debee v. Pearee Mohun Bose 6 W.R. 312 proceeded upon a general principle supposed to be applicable to all benami-holders, and not upon the peculiar position of a Hindu wife. The same question came before a Bench of this Court very recently in appeal from Original Decree, No. 266 of 1879 Koonjo Kaminy Debee v. Beedhu Soondur Gossamee (unreported); and we there expressed our unwillingness to accept the bare proposition that, in the absence of any evidence to show the source from which the purchase-money was derived, there is a presumption that property purchased in the name of a Hindu wife is the property of her husband, and has been acquired with his money. If we had now to decide this question, we are inclined to say that, in our opinion, there is no presumption one way or the other, and that the burden of proof in each particular case must depend upon the pleadings and the position of the parties as plaintiffs or defendants. But we think it will not be necessary to decide this point upon the present occasion, because whether the burden of proof be laid upon the plaintiff or upon the defendant, we think that the preponderance of evidence is in favour of the defendant Sreemutty Chowdrani. The plaintiff has examined eight witnesses. Of these Nos. 4, 5, and 6--viz., Chunder Kishore Bhat, Raj Kishore Hore, and Ram Comul Dey--give an account of the manner in which Goloke Nath Chowdry supplied the money with which the purchase was made. Having heard the evidence of these witnesses, we are of opinion that the story told by them is not in itself a very credible one. On the other side, we have the testimony of seven witnesses, including the defendant Sreemutty Chowdrani herself, and we have further the evidence of Sib Dyal Tewari, a witness called by both parties, and the impression which this evidence leaves upon our minds is, that Sreemutty Chowdrani had funds of her own, and that, with a portion of these funds, this share in the property was purchased. It may be observed that the price paid, viz., Rs. 560, renders this view a reasonable one. There is nothing improbable in the wife of a man in Goloke Nath's position having this sum of money as her stridhun. Then there are other circumstances in the case which, in our opinion, when taken together, afford corroboration of this view. First, the sale-certificate was taken out in the name of Sreemutty Chowdrani. The Subordinate Judge observes, that there is no evidence that the Mukhtear Doorga Prosad was acting on her behalf, but the recital in the sale-certificate is strong evidence of this fact. Then the name of Sreemutty Chowdrani was registered in the Collectorate for the share purchased by her; and decrees for rent wore obtained in her name. Thirdly, we have an admission in the izara lease of the 16th December 1859,--an instrument executed by Goloke Nath Chowdry and Sreemutty Chowdrani jointly. The recital in that instrument that three gandas of the property belonged to Sreemutty Chowdrani was an admission against the interest of Goloke Nath Chowdry, and if any question as to the real ownership of this share had subsequently arisen between Goloke Nath or his heirs and his wife or her heirs, this admission would have been strong evidence against Goloke Nath and his representatives. It appears to us that an admission of this kind is not an admission which would have been readily made by Goloke Nath if it did not represent the real state of the facts, As to the question of possession, there is, we think, as good evidence on one side as on the other; but this evidence, so far as it relates to the period after 1859, cannot be worth very much, seeing that, since the execution of the izara or mortgage lease on the 16th December 1859, the izaradars have been in actual possession of the property; and nothing by way of rent or otherwise was payable to the reversioners. Looking at the evidence on both sides and the circumstances to which we have referred taken together, for each of them singly may be fairly argued to carry less weight, it appears to us, that the preponderance of evidence is in favour of the defendant; and we think, therefore, that the decree of the Subordinate Judge must be reversed, and this appeal decreed with costs.