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TMI Blog1854 (7) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... , in a case that came before him in that year, Doe dem. Tilluck Seal v. Gour Hurry Day (Morton's Dec. 249), the practice is thus mentioned : In mere personal demands, such as Bengal bonds, the Courts have upon consideration determined that the action may be brought in the name of the person whose name is on the instrument, though it should be proved that he had no real interest in it. And the Court has so far complied with the very general practice in this country of using the names of other persons in mere personal demands, that in many cases the Plaintiff had recovered on notes not in his own name, but in some other name, giving evidence that the transaction was really his ; such for instance, that the money lent was his, and that he took the Bond in the name of another. Then he speaks thus in reference to real estate : but it cannot be allowed to be both ways ; in the case of a dispute of land, without directly contradicting those former decisions of the Court. In a much more recent case, which occurred in Sir Edward Ryan's time, Maha Ranee Bussunt Comaree v. Bullobdeb and others, reported in Fulton, 383, which report Sir Edward Ryan informs us is substantially accur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not the money of the individual in whose name the purchase was effected. If then the person in whose name the purchase was effected had been a stranger in blood, or only a distant relative, no question could have arisen; he would have been prima facie a trustee, and if he desired to contend that the prima facie character of the transaction was not its real character, the burthen would have rested on him; but the individual in whose name the present purchase was effected was the son, and at that time the only son, of the person who made the purchase, and whose money it was, and it has been contended that that circumstance changes the presumption, and that what would be the presumption in the case of a stranger does not exist between father and son: that the presumption is advancement, and that, therefore, the burthen of proof is shifted. Now, on this, as far as their Lordships can learn, there is no authority in Indian law, no distinct case, or dictum, establishing or recognising such a principle, or such a rule. It is clear that in the case of a stranger the presumption is in favour of its being a benamee transaction, that is a trust; but it is clear also that in this country, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstacle, that is, by the death of the owner (natural or civil), or his voluntary abandonment. In ancestral real property the right is always limited, and the sons, grandsons, and great-grandsons of the occupant, supposing them to be free from those defects, mental or corporal, which are held to defeat the right of inheritance, are declared to possess an interest in such property equal to that of the occupant himself ; so much so, that he is not at liberty to alienate it, except under special and urgent circumstances, or to assign a larger share of it to one of his descendants than to another. With respect to personal property of every description, whether ancestral or acquired, and with respect to real property acquired or recovered by the occupant, he is at liberty to make any alienation or distribution which he may think lit, subject only to spiritual responsibility. The property of the father being thus restricted in respect of ancestral real property, and Wills and Testaments being wholly unknown to the Hindu law, it follows, for the sake of consistency, that they must be set aside, where they are at variance with the law ; otherwise, a person would be competent to make a dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jection in point of morality and of religion was a circumstance of conduct so strong, according to Hindoo principles, that it is not lightly to be assumed; it forms an objection against importing into the Hindoo law that rule of positive law which exists in England. I have omitted to observe that benamee purchases in the names of children, without any intention of advancement, are frequent in India ; that is recognised in many cases, and, among others, in that of Amaree Tewaree v. Rai Rughoo Bun Suhai (3 Ben. Sud. Dew. Rep. 366), where may be found this statement : The present case does not appear to be at all of a nature with those benamee transactions which are prohibited by the Regulations, as Sheo Suhai, in making the purchase in the name of his eldest son, acted only in conformity to the general usage and custom of the country, against which the prohibitory enactment was never intended to apply. 5. Their Lordships are, therefore, satisfied, that according to the law by which this case must be governed, the presumption in favour of its being a benamee transaction is different from that which would have existed by the law of England. It is, therefore, upon this point of vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the names of other persons; a document submitted to him as a case in another cause, containing a statement of his title, though this is claimed on each side; certain letters relating to the property; certain memorials addressed, one to Mr. Thompson, the Deputy Collector of Hooghly, and another to the Deputy Governor of Bengal, relating to the tenure of the property, and parol evidence as to conversations; to which may be added the evidence of the conduct of the Respondent and Appellant after their father's death, which happened in 1842, the benefit of which is claimed on each side. 6. With regard to the age of the Respondent, their Lordships are of opinion, that no weight is to be attributed to it: they believe it to be as usual to buy in the names of minor children as of others, and in this particular family another purchase, the Bottollah house, was made in the name of this very child, the Respondent, when not much older than he was when the purchase in question was made. The form of the conveyance was insisted on to show that the father wished the English law to apply in this case ; but their Lordships are of opinion, that though the observation was a fair one to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conduct of the brothers after the father's death--conduct to which much weight cannot be attributed either way ; it would seem that parts of their mode of dealing with the property are in favour of the Respondent, and parts in favour of the Appellant, but no part of their conduct can be considered as wholly belonging to or supporting the theory of either party ; they continued a considerable time after the death of the father, and after the Respondent came of age, to receive jointly the proceeds of the talook in question, and this conduct of the Respondent is rendered remarkable by the evidence of Ruggobanchunder Lahoree, the brother-in-law of the Respondent. His evidence is in these terms :-- I am the son-in-law of the late Rogoram Gosain. I married his daughter in 1836, and have lived ever since in his family house at Serampore, and live there still. The title deeds of the family property were kept in a room adjoining one which Rogoram used as his office, in his family house; all the family documents were kept in that room ; some papers may have been lying about in another room, but, generally speaking, all deeds and papers were kept in the room I speak of. I know the two ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary to express any dissent, or, at least, to any great extent, from the view taken by the Supreme Court of the evidence. The Court thought it was not conclusive, their Lordships may say the same ; the presumption, however, remains in favour of the Appellant : but if the evidence is to be taken as of any value, their Lordships view it that it is rather in favour of the Appellant than of the Respondent. Another point arises, but the case seems hardly touched by the pleadings. It appears that Rogoram Gosain and his brother formed a joint family, their property was joint, and there is no proof that the ₹ 64,000 were not part of the joint properly ; if they were, and perhaps the true inference may be that it was joint property, both families would have been interested in these purchases ; but the family of the father's brother are bought off: this would leave the property part of the joint family property of Rogoram Gosain, in which case it would belong to the two sons. If this view is open on the pleadings, which we do not say, the Appellant would on this ground be entitled. On the whole, then, their Lordships feel bound respectfully to dissent from the judgment of the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do recommend the Supreme Court to deal with the costs of the parties incurred and to be incurred in the Court below, as to the Supreme Court, having regard to the declarations and directions aforesaid, shall seem just (a). (a) Upon the doctrine of purchases made in the name of the nominee of the vendee, the nominee being the son or a person the purchaser had a natural obligation to provide for by the Roman law, see Code, lib. v. tit. xvi. De Donationibus inter virum el uxorem, c. sec. 25 ; Voet. Pand. lib. xxxix. tit. v., vi. ; by the Scotch law, Stairs' Inst. of the Law of Scotland, b. i. tit. viii. sec. 2, and in addition to the English authorities cited in the argument, Finch v. Finch, 15 V s. 43; Rider v. Kidder, 10 Ves. 360; Collinson v. Collinson, 3 De G. Mac. Gor. 409 ; Prankerd v. Prankerd, 1 Sim. Stu. I: Skeats v. Skeats, 2 You. Coll. N. R. 9, 11. See also, by the Hindoo law, Sibchunder Kur v. Nund Gopal Mullick, S. D. A. Dec. Beng. 605 ; Rungama v. Atchama, 4 Moore's Ind. App. Cases, 1 ; by the Mahomedan law, Ruggoo Mull v. Bunseedhur, 5 Dec. N. W. P. 147 ; Newazee Feraush v. Mussummaut Atlussee, 1 Ben. Sud. Dew. Rep. 31. - - TaxTMI - TMITax - In ..... 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