1. The appeal arises out of a suit brought by the plaintiff Subudhi Tatwani against Gajaraj Hajem and Shib Kumari Dassi. The plaintiff brought a suit in the Court of the Munsif at Serampur in the year 1923 against Gujraj Hajam and in that suit she obtained a decree and in execution of that decree she attached certain property which is now the subject-matter of the present suit. After the attachment had been made Shib Kumari Dassi defendant 2 in the present suit filed an application under Order 21, Rule 58, Civil P.C., claiming the property as hers. That application was allowed and the property was released from attachment. Thereupon Subudhi Tatwani instituted the present suit on 24th March 1927 claiming a declaration that the property in question which consisted of a plot of land and huts standing upon it belonged to defendant 1 Gajaraj Hajam and not to defendant 2 Shib Kumari Dassi and therefore was liable to be attached and sold in execution of the decree obtained in the 1923 suit by the present plaintiff against defendant 1 Gajaraj Hajam.
2. The sole question therefore for determination in these proceedings is whether the property in question belongs to the man Gujraj Hajam or to the female defendant Shib Kumari. It was alleged by the plaintiff that the two defendants are husband and wife and they were living together in such circumstances that it could be said that the possession of one was the possession of the other. The plaintiff adduced some evidence to prove that defendant 2 was the wife of defendant 1, but at the trial, the Munsif of the Second Court, Serampore apparently definitely took the view that the plaintiff had not succeeded in establishing that the two defendants were in fact man and wife. He further held that in the circumstances of the case it was difficult to accept the evidence of the plaintiff's witnesses regarding the ownership of the disputed property. He then set forth certain facts which led him to the conclusion that the disputed property belonged to defendant 2 Shib Kumari and he accordingly dismissed the suit with costs. Upon appeal to the Subordinate Judge, Second Court, Hooghly, the learned Judge gave the judgment which was mainly concerned with a consideration of the question whether or not the two defendants were husband and wife and he seemed to have placed great reliance upon the fact that in the kabuliyat under which Shib Kumari was holding the property in question she described herself as the wife of Gajaraj Tanta,' Apparently the Bengali phrase in the kabuliyat properly interpreted is 'Shib Kumari Dasi, wife of Gajaraj, caste, Tanti.' I am informed by Dr. Mukherjee that 'Tanti' is the Bengali equivalent of the word 'Tanta' which is used in other provinces in India, as designating the weaver caste. It appears that this kabuliyat was not before the learned Munsif. It was not produced by the defendant Shib Kumari and the plaintiff had not taken the elementary precaution of giving her notice to produce it. That was an obvious course open to them in the suit if the kabuliyat was really considered by the plaintiff to be a material piece of evidence in support of her case. However the kabuliyat was produced before the appellate Court below and the Subordinate Judge, as I have said, placed considerable reliance on that document and he seemed to have thought that it was clear beyond doubt that the man called 'Gajaraj Tanta' or 'Gajaraj Tanti' in the kabuliyat must of necessity be the same man as Gajaraj Hajam. Taking that view of the matter and upon a consideration of the rest of the plaintiff's evidence, the learned Officiating Subordinate Judge, came to the conclusion that the two defendants were in fact, husband and wife, and there upon he said:
I would hold that defendant 2 is the wife of defendant 1 and the settlement is a benami one in the name of his wife and she got no right and title to the properties and I find that they belonged to defendant 1.
3. It is obvious that the learned Officiating Subordinate Judge seems to have thought; that because he had come to the conclusion that these two defendants are husband and wife, it necessarily followed that there was a conclusive presumption, that any property and in particular the disputed property, which happened to stand in the name of the woman must in reality belong to the husband merely by reason of a marriage tie existing between them. The learned Officiating Subordinate Judge, made no attempt whatever to dispose of the points in the evidence which had induced the learned Munsif to hold that in fact the disputed property belonged to defendant 2. The Officiating Subordinate Judge nevertheless reversed the decision of the Munsif and made a decree in favour of the plaintiff as against both the defendants and declared that the property which was the subject-matter of the suit; was liable to be sold in execution of the decree which the plaintiff had obtained in 1923. Mr. Ghosal who appears for the plaintiff-respondent has sought to argue that the mere fact of marriage raises a presumption that any property standing in the name of the wife must be held by her in benami for her husband and in support of that somewhat startling proposition he referred to the well-known passage in the judgment of their Lordships of the Privy Council in the case of a Sura, Lakshmiah Chetty v. Kothandarama Pillai . That judgment was delivered by Sir John Edge and the passage in question is in these words:
There can be no doubt now 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. The rule of the law of England that such a purchase by the husband in England is to be assumed to be a purchase for the advancement of the wife, does not apply in India.
4. That passage is no authority however for the wide proposition contended for by Mr. Gho3al because the rule laid down there depended on the essential element that there was a purchase by a husband in the name of his wife. I respectfully agree with the law as laid down in the passage. But I am of opinion it has no [application to the present case. It cannot rightly be said that the mere fact of marriage raises a presumption with regard to any property standing in the name of a wife that the beneficial interest must be in her husband. Before any such presumption can arise there must be some evidence adduced to indicate that the property did not really belong to the wife, but in fact to the husband though stand-ling in the name of the wife. If in the present case the plaintiff had gone so far as to show that the man Gajaraj had secured the property by paying a selami for the lease which was evidenced by the kabuliyat then no doubt the presumption would have arisen that he was really the lessee and not the woman Shib Kumari. But the plaintiff has done no more, even in the appellate Court below, than to obtain a decision that these defendants were husband and wife. Even upon that assumption, that is to say, even taking the finding of the Officiating Subordinate Judge as correct on the question of marriage, that of itself, is manifestly not sufficient to raise any presumption or to create such an inference as the Officiating Subordinate Judge seems to have drawn from the mere factum of the marriage. There is nothing whatever in the judgment of the learned Officiating Subordinate Judge that detracts from the significance of the other important pieces of evidence which weighed with the learned Munsif. In these circumstances it is obvious that the judgment of the appellate Court below cannot stand.
5. It has been said by Mr. Ghosal that oven so this case ought to be sent back for further consideration. I take the view however that this comparatively small matter has been sufficiently agitated before the Courts and that it would not be in the interest of justice that the defendants should be put to any further harassment and expense. The result therefore is that this appeal is allowed, the decree of the Court of appeal below' is set aside, and that of the Court of first instance restored. The appellant is entitled to her costs throughout.