Ameer Ali, J.
1. The proceeding before me relates to premises No. 93/3/60, Hari Ghose Street, and it arises in this way: The house was bought on 5th August 1932 and the conveyance was in favour of Shaila Bala Dasi, the wife of Harendra Nath Ghosh. The vendor was a man called Kristadas Sarkar and the price, if I remember rightly, was Rs. 3,400 or thereabouts. Harendra Nath Ghose had been in business for many years and was at the time of this purchase carrying on business as a trader and agent in patent medicines and foods, particularly in Horlick's Malted Milk. His principal supplier was Butto Kristo Paul & Co., a limited company. On 26th June 1935 Butto Kristo Paul & Co. obtained a decree against Harendra Nath Ghosh for something like Rs. 12,000. On 6th August of that year Butto Kristo Paul & Co. attached this property. On 2nd September of the same year Shaila Bala Dasi, the wife of Harendra, filed a claim under Order 21, Rule 58. There were polices Court proceedings brought by the decree-holder, Butto Kristo Paul, against Haren. There was a conviction and on appeal the conviction was upheld. In my opinion those proceedings have little effect or bearing on the present question. The petitioner's claim was heard by Costello, J. on 11th March 1936, and the matter was ordered by him to be tried on evidence.
2. There has been in this matter a somewhat unfortunate misunderstanding for which, generally speaking, nobody but myself is responsible. I somewhat hastily assumed that the matter before me was being treated as a title suit. Mr. Chatterjee has informed me, and I fully accept his statement, that on opening the matter he stated that the matter was a claim matter and not a suit in pursuance of the powers provided in Rule 63. I was however under that impression. Although no formal issue may have been written down, I did state that the only question to be decided by me was whether Shaila Bala had purchased this house benami for her husband. It is also perfectly correct that Mr. Chatterjee at times had protested against the evidence in the cross-examination of certain witnesses being considered relevant, but he did not suggest that the only question before me was Shaila Bala's possession or contend that the question of title should not be gone into. Had I grasped, as I should have, that the matter had not been referred to me as a suit, I should have followed the Course which I personally have always adopted, and which is justified by the practice and the decisions of this Court, namely decide only the question of possession and leave questions of title to be decided once and for all in a suit. I was probably influenced by the fact that when taking the interlocutory list, when this question arose, on the suggestion being made, the parties usually agreed to treat the matter as a suit. In this case, I thought, that had been done, but I was wrong, and indeed when this matter arose at the end of the case I was told that Costello, J. had asked the parties to take that course, a suggestion which was not accepted.
3. The proceeding therefore before me was conducted as if the real issue was one of title. Evidence was given by the claimant in first instance and in rebuttal. It was subjected to cross-examination at length, but on the assumption that it was a trial of the question of title, not of inordinate length. The purpose of the evidence was to show that the money with which this house was purchased was not Shaila Bala's money but Haren's. That was the whole point. I think it convenient in this case to postpone the consideration of the evidence on this point until I have discussed the sections or rules which give rise to the difficulty which I have mentioned. I had hoped that I should never have to do so because in my opinion they are incapable of logical construction and I think the practical solution this Court has so long accepted is the only solution.
4. I am now explaining why I think the sections [rules?] are incapable of being logically followed; and incidentally I wish to give my view on the question of onus. Order 21, Rule 59 lays down that the objector must adduce evidence to show that he was possessed of the property attached. That would appear to place the onus of proving possession on the objector.
5. I shall use symbols (A) for the objector, here Shaila Bala; (B) for the judgment-debtor, here Haren; (0) for a hypothetical trustee; (D) for decree holder, here Butto Kristo Paul; (X) the property.
6.Shorn of its essentials, Rule 60 is as follows: Where a Court is satisfied X is not in the possession of B or of G, X will be released. So read, that puts the onus upon A to show both things: first that X is not in possession (of either B or C?); second that 'G' is not trustee for 'B' ('C' in this case being 'A' herself; in other words to show that she is not the trustee). So far so clear.
7. Turning to the next, we have exactly the opposite situation. Shorn of its essentials, it is this: Where a Court is satisfied that X was in the possession of B or in the possession of C as trustee for B (C again including in this case A), attachment of X continues. What happens to the question of onus? Here the onus is upon D, the decree-holder. As things are, Rr. 60 and 61, so far as onus is concerned, wipe each other out. There remains Rule 59. In my view the position is as follows: I am now dealing with the matter purely so far as it is a claim matter: (1) The question is whether B is in possession of X; (2) That is in the sense I am about to explain the sole question; (3) By introducing the supplementary question of trust, the sections invite Court to consider whether B is or is not a beneficiary of C, if C is in possession.
8. By introducing the supplementary question, the question becomes a compound one involving the matter of title. That being so, where is the onus? On the simple question of possession pure it is on the objector A, On the supplementary question taken by itself, the question of beneficial ownership, obviously would be on the decree-holder. As a compound question, where is it? In my opinion the question cannot be treated as two separate questions. The question must be treated as one question that of possession, the question of title being involved in and subordinate to the question of possession. If that is so, I should have thought that if the question of title is to be gone into that the onus was upon the objector, which would of course conflict with the ordinary rules of onus. In a title suit, the onus would be upon the decree-holder.
9. I dare say that is one of the reasons which has induced this Court to divide the two questions, dealing with the question of possession in claim procedure and with title in suit. It is obviously undesirable that the onus should vary according to the nature of the proceedings. Attempts have been made to solve the difficulty by saying that the Courts in claim procedure will only go into 'simple questions of title or uncomplicated questions of title' That to my mind is no solution. When it goes into title at all, it does decide the question of title in order to decide the question of possession, I should describe it as digging at the roots of a tree in order to get at the fruit. I propose to follow the practice of this Court which does avoid that difficulty, that is to decide the question of possession only in claim procedure, treating it not as a compound question but as a simple question. That is the line I propose to take in this case and in other cases. What I have said also explains why counsel for the decree-holder contended and Mr. Chatterjee for the claimant conceded that the question of title can be gone into. In this case I have been asked to deal with a compound question of possession involving title, dig up the roots. I shall not follow that course. I shall decide the question as a claim matter on possession only. But as the whole matter was gone into and subject to what I have said, I think it only fair that I should express my view on the question of title and I shall do so.
10. Dealing first with the claim matters and as regards possession, I find that Shaila Bala Dasi was in possession on the date of attachment. That is treating the question as a clean question of possession. She was collecting the rent, she was paying outgoings, she was registered as being in possession with the Corporation.
11. I shall now give my view on the basis that this was a title suit before me, that is to say, suit by D, the decree-holder, for a declaration that Shaila Bala is not the owner but is trustee for B, in other words a declaration that the beneficial ownership in the property is in B. To this proceeding regarded as a suit B is not a party. The bearing of this fact has not been discussed before. The issue to be decided is an issue of proprietorship between A and B and it must be remembered that issue may be decided in the absence of B. Of course as in 99 cases out of a hundred B desires the success of A or may be assumed to desire this result. He is not claiming the property as his own; but as a matter of principle it is deciding the question of title between two persons, one of whom is not a party before a Court.
12. We now come to Mr. Chatterjee's legal sheet anchor, Steeman Chunder Day v. Gopal Chunder Chukerbutty (1866) 11 MIA 28, and he uses this case as an authority that the decree-holder D must prove not only that A was not the purchaser but that B was. I shall have to deal with this case in some detail. The facts were shortly these: A was the appellant; B were persons we may call judgment-debtors; D was the assignee of the decree-holder, the respondent. A had bought at the Sheriff's sale under a previous decree. D alleged that A had bought as a trustee for B. That is the whole case. The Amin had decided the claim in favour of A on the basis of possession. A title suit was filed by D and the lower Court on a consideration of various circumstances came to the conclusion A had purchased as trustee for B, that is to say B had really purchased his own property. The High Court confirmed the decision laying down unfortunately the proposition that where D established suspicious circumstances, the onus was on A to establish that he, A, is not the purchaser.
13. The following is what I understand to be gathered from this case on the question of principle. First of all as to what I should call the quality of evidence. Mr. Chatterjee says this: that there must be 'positive legal testimony'. I find no 'positive' legal testimony. I find in the case two kinds of legal testimony referred to-'Direct evidence' and 'legitimate inference'. With these two things the Board contrasts 'suspicion'. The difficulty, of course, is to know where 'suspicion' ends and 'legitimate inference' begins. It is easy to lay down the principle but not so easy to carry it out. When does 'inference' become 'legitimate'? In this connexion I referred counsel to Section 3 of our own Evidence Act which says that a fact is proved when the Judge believes it to be proved. This case shows that a Judge may believe a thing to be proved yet may be considered to have decided on 'suspicion' and therefore wrongly. He 'believed' wrongly. Indeed I think in the latter part of the same volume there is another case Moonshee Buzloor Ruheem v. Shumsheroonnissa Begum (1866) 11 M I A 551 of this nature where the Board has said that Indian Judges are too 'suspicious'. So it boils down to this: If I believe it is a benami transaction (as I do), I have carefully to consider whether that belief is the result of 'legitimate inference' or illegitimate suspicion. The second principle is as to onus: That it is for D, the decree-holder, to prove that B is A's beneficiary. The third principle is that this onus is not to be considered discharged or affected by the fact that A gives no account of how she came by the purchase money or gives an account which is not accepted.
14. The value of this case to the claimant is not so much the discussion as to 'suspicion' and 'testimony', but that the Board has laid down that where the situation indicated arises, it is not legitimate to infer from the fact that A's story is disbelieved, that A is a trustee for B. This is expressed in unqualified terms. In that case there were, besides 'suspicious circumstances' that is facts unfavourable, also facts favourable to the genuineness of A's purchase. From the latter facts the Board drew inferences, of course legitimate, in favour of the claimant A. But the Board did not say that this question of onus would depend upon circumstances and so forth. In their view, there is no duty on A to explain at all. He or she need give no explanation: need not say a word. If this is so, the rejection of her explanation, if she chooses to give one, cannot legitimately create the inference that she is trustee of B. Such an inference the Board has degraded to the category of 'suspicion'.
15. The vital question before me is this: In this case A is the wife of B and, as natural, is living with him in the same house X, the property in dispute. Does that put any obligation upon A to explain? Does it mean that by reason of these circumstances the Board would have taken another view and said in these circumstances the onus would have been upon A to give an explanation to satisfy the Court that the money was hers and not B's? Or, in other words, where this state of facts exists and A's explanation is rejected, has the onus been shifted or the onus discharged by the decree-holder? It is a very narrow question. If answered in the affirmative, that is to say, against Mr. Chatterjee's contention, it would from the practical point of view put the onus in all cases upon A when A is a wife. Speaking for myself, I have felt that onus should be put upon the wife and I have not withheld that view from the counsel. Moreover I do believe that in this case A purchased as trustee for B. It seems to me that if I come to the conclusion that the money was not A's, it is a reasonable and legitimate inference to draw that it was B's, the husband's. That, I think, would be the view of the average man in the street. A, the wife, is living in the premises with B, her husband, or B, the husband, is living in the premises with her, A, and the husband is acting in all matters of the house, dealing with the repairs and so forth.
16. On the state of the authorities, however, it appears to me that my 'belief' is not justified. The final question therefore remains. Has the decree-holder D succeeded in discharging the onus that has been put upon him? Though I may believe as I do that this was a benami transaction, has he succeeded in putting before me proof upon which, according to our system of evidence, I can legitimately decide the issue in his favour? The 'positive', 'direct' evidence is all on behalf of the claimant. Of course, if that is accepted, no further question arises. She has called herself, and of all her witnesses I consider her the best. As regards demeanour, she was in a palki, and so far as I can tell, there was nothing wrong with the manner of her giving evidence. Her next witness, perhaps the principal witness in the case, was Jyotindra Nath Dutt, a brother and a pleader, who arranged the transfer and who arranged the purchase and who also assisted her in the alleged sale of her ornaments. His evidence is, I think, specious. There is nothing ostensibly wrong with it. There was the philanthropic goldsmith who melted the ornaments. The purchasers of gold were not called. Nor was there any documentary evidence unequivocally connecting Saila Bala's gold with any sale. The memos are of no value. There was the cheerful Gossain, a very clever man, an excellent witness but very careful only to speak to matters upon which he could not be found out. I should say they were a very good set of witnesses, but I do not believe them. If I was asked why, I could not say. It is not a matter of demeanour. I never discovered how one could decide whether a thing is true or not from demeanour. I can only say that it does not ring true. The witnesses were excellently cross-examined, but of course there was no opportunity either to 'break' or even 'shake' the witnesses. All I can say is that I do not accept at its full value the story of Saila Bala's explanation of how she came by the money.
17. On the view I have taken, the onus is still upon the decree-holder. What has he put before the Court? Very little. He hag called Kristo Das Dey, the unhappy vendor. I have not seen anybody more unhappy in the witness box. He had to be brought under a warrant. The evidence that he was to have given was that contained in his affidavit to the effect that in conversation with Horen, Horen had told him that he was going to purchase the house in his wife's name. It has not been shown to me that this vendor's evidence, even if given, would be admissible against Saila Bala, and I am not satisfied that it would be. But in point of fact he came here and told a different story and was treated as a hostile witness. His evidence, therefore, is of no value either way, and must be disregarded. Horen was called, I should have said before, by the Court, and the decree-holder relies strongly on the cross-examination of Horen. Horen I disbelieve with complete certainty. There are various things not entirely to his credit, but they are irrelevant on the present issue and they are certainly not relevant against Saila Bala; for instance, the loss of his old house some twenty years ago on account of a business debt. Horen was undoubtedly at the time of this purchase trading, collecting money, and not paying his creditors, in particular the decree-holder here. Undoubtedly as I think, at the time of this purchase, out of these collections he could have paid for the house. How far is that evidence against Saila Bala? Horen has kept back certain books. That I believe. He has also given false or unsatisfactory explanations of how the discrepancy between his collections and his payments to his creditors came about. For instance, he tried to make out that these withdrawals, which have been proved by the decree-holder from the books, are to be accounted for by his paying off the debts of an old firm of Ghose and Dev. He pretends that he has no account book showing these payments. If they were made, he must have. Then he has a durwan. The durwan's defalcations in 1933 are supposed to explain the discrepancy in 1932, and so forth. Horen is rather an old and infirm man, and before he went into the box I jumped to the conclusion that he was a stupid man. But he is not. He is a very intelligent man, and a good accountant, and I am totally unable to believe that his accounts of his business are in the shape and form in which they appear before me. But the question is, on the main point, as formulated by the authorities by which I am bound, how far is this evidence against Saila Bala? Can she be called upon to show how the judgment-debtor spent his money? I think not.
18. The result is-this I have held without any hesitation on the question of possession-in my opinion, the only question which I should be asked to determine under Rr. 59 and 60 of 0. 21. On the question of title, which I have been asked to determine and upon which, under protest, I have undertaken to give my view, I find that the decree-holder has failed to discharge the burden of proof. The result is that the claimant wins. I have heard counsel on the question of costs. I have already explained that the responsibility for the course taken at the trial is really mine. At the same time learned counsel for the claimant might have taken up the position which he ultimately adopted at an early stage and made it plain that his first point was that the question of title should not be gone into, in which case I should have decided in his favour. On the other hand, counsel for the decree-holder was under a misapprehension not entirely justified. He took his chance on the compound question. In the circumstances I will give the objector the general costs, including two days costs of the hearing. No order as to the rest of the days. Costs as of a hearing.