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TMI Blog1923 (8) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... d brother-in-law were two other defendants. The Subordinate Judge decreed the suit on the 16th February, 1922, and made a preliminary decree, awarding the plaintiff a share of specified properties and giving various incidental directions the present appeal was lodged in this Court by three of the defendants on the 7th June, 1922. During the pendency of the appeal, the first defendant Bhuban Mohini died on the 24th December, 1922. We have heard the appeal on the record and without a printed paper book, because the parties found themselves in a position of considerable embarrassment, owing to the inability of the Receiver in charge of the estate to collect sufficient fund for the conduct of the litigation. The facts have been placed before us in detail by Mr. Sarbadbikari who has argued the case on behalf of the appellants very fully, and we have also looked into the record for ourselves. 3. The preliminary decree made by the Subordinate Judge has been assailed substantially on throe grounds, namely, first that the properties which stand in the name of Bhuban Mohini should have been regarded as her self-acquisition and not as part of the family estate liable to be partitioned; secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Narasin v. Srinivos (1910) 33 Mad. 112, Bai Matibahu v. Purushottam (1905) 29 Bom. 306, Durga Prosad v. Pran Krishna (1917) 33 Mad. 112 and Protab v. Sarat A.I.R. 1921 Cal. 101. The rule thus enunciated must be coupled with the elementary principle that the burden of proof lies upon the person who asserts that the apparent is not the real state of things. It is important to bear in mind in this class of cases that, as pointed out by Lord Phillimore in Manick Lal v. Bijoy Singh A.I.R. 1921 P.C. 69, the decision of the Court should rest not upon suspicion but upon legal grounds established by legal testimony. This recalls the earlier pronouncements to the same effect by Lord Westbury in Sreeman v. Gopaul (1866) 11 M.I.A. 28, and by Sir Lawrence Jenkins in Minakumari v. Bijoy Singh A.I.R. 1916. P.C. 238. But we are not unmindful that, in the words of Lord Hobhousa in Uman Prosad v. Gandharp Singh (1887) 15 Cal. 20, and of Lord Shaw in Mohammad Mahbub v. Bharatindu A.I.R. 1918 P.C. 137, as benami transactions are very familiar in Indian practice, even a slight quantity of evidence to show that it was a sham transaction may suffice for the purpose. The person who impugns its apparent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t permitting the real question to be obscured by what Knight Bruce, L.J., calls in Hunooman v. Mt. Babooee Munraj (1855) 6 M.I.A. 393 the form of expression, the literal sense, nor by what Lord Macnaghten describes in Lal Achal Ram v. Raja Kazim (1905) 27 All. 271 as exhibitions of the art of the conveyancer in the shape of recitals off obviously untrue statements introduced to impart some additional solemnity to an instrument: Promod Kumar Ray v. Madan Mohan Saha: A.I.R. 1923 Cal. 228, Lalit Mohan Manoranjan, Jasoda v. Balaram A.I.R. 1922 Cal. 488. The same view was recently emphasised by Lord Atkinson in Arab Ali v. Mahmud Ali A.I.R. 1922 P.c. 84 and by Lord Phillimore in Rai Radha Krishna v. Biseswar Sahay A.I.R. 1922 P.C. 336. In the case before us, it was asserted by Bhuban Mohini that she had her own private funds which enabled her to purchase the disputed and other properties. She alleged that she had received ₹ 100, from her father and ₹ 500 from her maternal grandmother and that she used to parry on a money-lending business. She was eighty years old when her definition was taken in 1921. She could give no indication as to the time or occasion of the alleged gif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aled from is wrong lies upon the appellant. If all he can show is nicely balanced, calculations which lead to the equal possibility of the judgment on either the one side or the other being right, he has not succeeded." It is not necessary to invoke this doctrine against the appellant, because, for reasons that have already been stated, the case set up by them fails; nevertheless, the fact that the trial Judge has disbelieved the story narrated by the first defendant, is a factor which cannot altogether be ignored. The first point urged by the appellant must consequently fail. 6. As regards the second point, the plaintiff-respondent has urged that the theory of advancement was not put forward in the trial Court and should not be entertained here. It cannot be seriously disputed that the alternative position taken up by the appellants contradicts the case attempted to be established by evidence before the Subordinate Judge. The contesting defendants have hitherto maintained that the disputed properties were purchased by the lady with her own money. They now turn round and contend that the properties were acquired by her husband with his own money but in her name, because he in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yamani v. Lakshman Chandra A.I.R. 1916 P.C. 96. In this connection, it is important to bear in mind that, as emphasised by Sir George Par well in Bilas Koer v. Deoraj Ranjit Singh A.I.R. 1915 P.c. 96 the doctrine of advancement in favour of wife or child does not apply in India Gopikrishna v. Ganga Prasad (1854) 6 M.I.A. 53 but the relationship, is a circumstance which is taken into consideration in. India in determining whether the transaction is benami or not. This was apparently overlooked in Abdul Rahim v. Mirathayar 1 Mad. L.W. 451. But, the true position was clearly recapitulated by Lord Atkinson in Kerwick v. Kerwick A.I.R. 1921 P.C. 56 where he observed as follows: It has been established by the decisions in the case of Gopeekrist Gosain v. Gunga Persod Gosain (1854) 6 M.I.A. 229 and Uzhur Ali v. Ultaf Fatima (1969) 13 M.I.A. 232 that, owing to the widespread and persistent practice which prevails amongst the natives of India, whether Mahomedan or Hindu, for owners of property to make grants and transfers of it benami for no obvious reason or apparent purpose, without the slightest intention of vesting in the donee any beneficial interest in the property granted or transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uri v. Satya Dayal (1907) 6 C.L.J. 105, all questions involving the title of the parties and their right to any relief within the issues, are judicial in character, and must be determined by the Court, such determination to be made ordinarily by the Court and incorporated in the interlocutory decree before any partition is made or directed. From this standpoint, the order for discovery made by the Subordinate Judge may be open to the criticism that it should have been made and carried out before the preliminary decree was passed. Such an objection, if taken, must be deemed unsubstantial; because, as explained in Annapurna v. Golapmani A.I.R. 1922 Cal. 307, the Court has ample authority to direct successive trials of different issues and even to record interlocutory judgments thereon, to be made the basis of the final judgment at the conclusion of the trial of the whole case. There is thus no reason why we should not confirm the preliminary decree as made by the Subordinate Judge, and leave it open to him to make a supplemental preliminary decree in respect of such additional joint properties as the defendants maybe compelled to discover on oath in pursuance of his order. The third ..... X X X X Extracts X X X X X X X X Extracts X X X X
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