Kanakarathanammal Vs. V. S. Loganatha
Mudaliar & ANR  INSC 256 (18 December 1963)
18/12/1963 GAJENDRAGADKAR, P.B.
AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.
CITATION: 1965 AIR 271 1964 SCR (6) 1
R 1974 SC 658 (14) RF 1978 SC1362 (35)
Hindu Law Women's Rights Act (Mys. 10 of
1933), s. 10(2)(b) -Scope of Practice-Necessary parties-Who are.
The appellant in a suit against respondents
claimed recovery of possession of the properties in Schedules 1, 2 and 3 as the
sole heir of her mother. She claimed these properties exclusively, under s.
12(1) (i) of the Mysore Hindu Law Women's Rights Act, 1933. On challenge to her
title by respondents she relied on a sale-deed created in favour of her mother
for a consideration of Rs. 28,000. Respondents ,set up title in respect of the
suit properties in the appellant's father alleging that her father had executed
a will under which respondent I had been appointed an executor and as such, he
got possession of the properties and handed them over to Respondent 2, as
directed under the will.
Alternatively, they urged that even if the
property belonged -to the appellant's mother, she would not be entitled to
claim exclusive title to it, because by succession it would devolve upon the
appellant and her brothers; and her failure. to join her brothers made the suit
incompetent for non-joinder of necessary parties. The trial court dismissed the
suit. On appeal, the High Court confirmed the decree of -the trial court, but
held that the main property in Schedule 1 did not belong to the appellant's
mother, but to her father and the sale-deed in respect of the property was
taken by her father in the name of her mother benami. On appeal by special leave,
the appellant mainly contended that the property in question would fall under
s. 10(2)(b) :of the Act, and not under s. 10(2)(d) as respondents had contended
and therefore, she would be exclusively entitled to it and the plea of
,non-joinder of her brothers would fail.
Held: (Per, P. B. Gajendragadkar, K. Subba
Rao, K. N. Wanchoo and N. Rajagopala Ayyangar JJ.). It would be straining the
language of s. 10(2)(b) of the Actto hold that the property purchased in the
name of the wife with the money gifted to her by her husband should 'be taken
to amount to a property gifted under s. 10(2)(b). The requirement of s.
10(2)(b) is that the property which is the subject-matter of devolution must
itself be a gift from the husband to the wife. In deciding under which class of
properties specified by cls. (b) and (d) of s. 10(2) the present property
falls, it would not be possible to entertain the argument that the gift of the
money and the purchase of the property must be treated as one transaction and
held on that basis that the property itself has been gifted by the husband to
2 The gift that is contemplated by s.
10(2)(b) must be a gift of the very property in specie made by the husband or
other relations therein mentioned. The trial court therefore, was right in
holding that even if the property belonged to the appellant's mother, her
failure to implied her brothers who would inherit the property along with her
made the suit incompetent.
In the present case, the estate could be represented
only when all the three heirs were before the court. When the appellant
persisted in proceeding with the suit on the basis that she was exclusively
entitled to the suit property she took the risk and it was now too late to
allow her to amend the plaint by adding her brothers at this late stage.
Naba Kumar Hazra v. Radheshyam Mahish, A.I.R.
1931 P.C., 225 followed.
Per Mudholkar J. (dissenting)-Upon the
pleadings there is no, scope for spliting up the transaction into two parts,
ie., a gift of the money by the father to the mother in the first instance and
the purchase by the mother of that property subsequently with that money. It
was not even an alternative contention of the respondents that the transaction
was in two parts and that what the father gifted was the money and not the
property. It would be indeed an artificial way of looking at the transaction,
as was done by the trial court, as being constituted of two parts. Thus the
transaction was one indivisible whole and that is, the father provided the
money for acquiring the property in the mother's name. Therefore, in effect it
was the father who purchased the property with the intention of conferring the
beneficial interest solely upon the mother. Such a transaction must therefore
amount to a gift. In that view the property would not fall under cl. (d) of s.
10 of the Act but under cl. (b) of that section. Therefore, the appellant would
be the sole heir of her mother and the nonjoinder of her brothers would not
defeat the suit so far as she is concerned.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 528 of 1961.
Appeal by special leave from the judgment and
decree dated October 10, 1956 of the Mysore High Court in Regular Appeal No.
171 of 1951-52.
K. P. Bhatt and R. Thiagarajan, for the appellant.
S. T. Desai, K. Jayaram and R. Ganapathy Iyer
for the respondents.
3 December, 18, 1963 The Judgment of P. B.
Gajendragadkar, K. Subba Rao, K. N.
Wanchoo and N. Rajagopala Ayyangar JJ. was
delivered by Gajendragadkar, J. J. R. Mudholkar J. delivered a dissenting
GAJENDRAGADKAR J.-This appeal arises from a
suit filed by the appellant Kanakarathanammal in the Court of the 2nd
Additional District Judge, Bangalore (O.S. No. 39 of 194748) in which she
claimed to recover possession of the properties described in the Schedules
attached to the plaint. Schedules 1 and 2 consist of movable and immovable
properties, while Schedule 3 refers to jewels and silverware. The appellant
laid a claim to these properties as the sole heir of her mother Rajambal who
died on the 13th September, 1946. Her case was that she was entitled to these
properties exclusively under sub-clause (i) of Clause (1) of section 12 of the
Mysore Hindu Law Women's Rights Act, 1933 (No. X of 1933) (hereinafter called
the Act). A gold belt which is an item of jewellery was described by her in
Schedule 4 and the same was claimed by her on the ground that it had been
presented to her by her father before he died on the 20th March, 1947.
The case set out in the plaint showed that
according to the appellant, the properties in Schedules 1, 2 and 3 belonged
exclusively to her mother and when she made a claim against the respondents in
that behalf, they challenged her title.
In that connection, the appellant relied on
the fact that a sale-deed had been executed in favour of her mother on the 1st
April, 1942 for a consideration of Rs. 28,000 by Mr. Gibs under which several
pieces of land together with all buildings and erections standing thereon and
movable property consisting of articles of furniture and other things set out
in the Schedules attached to the sale-deed (Exhbt. F), were covered.
Respondent No. 1 Loganatha Mudaliar alleged
that on the 17th February, 1947, the father of the appellant had executed a
will under which he had been appointed an executor and that as such executor,
he obtained a probate under the said will, got possession of the properties and
handed them 4 over to Respondent No. 2 Mudaliar Sangham, by its President, as
directed under the will. Respondents 1 and 2 thus set up a title in respect of
the suit properties in the appellant's father. Alternatively, they urged that
even if the property belonged to the appellant's mother, she would not be
entitled to claim exclusive title to it, because by succession the said
property would devolve upon the appellant and her brothers; and the appellant's
failure to join her brothers made the suit incompetent for non-joinder of
necessary parties. The third respondent, Vasudeva Setty & Sons, admitted
that he was in possession of the gold belt described in Schedule 4, but urged
that the appellant's father had given it to him for purpose of sale and that a
sum of Rs. 109-7-9 was due to him. He pleaded that he had no objection to hand
it over to the rightful claimant, provided the amount due to him was repaid to
On these pleadings, the trial Court framed
six substantive issues, three of which were important. These three issues were:
( 1) whether the appellant's father or mother was the real owner of the
property described in Schedules 1 and 2;
(2) whether the will set up by respondents 1
& 2 was genuine and valid in law; and (3) whether the suit was not
maintainable on the ground that necessary parties had not been joined by the
appellant. The learned trial Judge held that the appellant's mother was the
owner of the property described in Sch. 1. Regarding the movable property, the
trial Judge held with some variation that the items admitted by the respondents
also belonged to the appellant. As regards the jewels, he found that they had
never gone into the possession of respondents 1 and 2, and so, the appellant's
claim in respect of the said jewels was rejected. As to the gold belt mentioned
in Sch. 4, the decision of the trial Court was that the appellant should
recover the same from respondent No. 3 on her paying to him Rs. 109-7-9 claimed
by him. Having found the title of the appellant's mother proved, the trial
Judge came to the conclusion that the will executed by the appellant's father
These findings, however, did not materially
assist the appellant, because the learned Judge upheld the respondent's plea
that the suit was bad for non-joinder of necessary parties. In 5 the result,
the appellant's suit was dismissed in regard to the main relief claimed by her.
Against this decision, the appellant
preferred an appeal before the High Court of Mysore (R.A. No. 171 of 195152).
The High Court has held that the main
property described in Sch. I did not belong to the appellant's mother, but to
her father. It found that the sale-deed in respect of the property was taken by
the appellant's father in the name of the appellant's mother benami. Having
held that the appellant had not established her title to the said property, the
High Court did not think it necessary to consider the validity of the finding
of the -trial Judge that the suit was bad for non-joinder of necessary parties.
It also did not think it necessary to consider whether the will had been proved
or not. The appellant, however, succeeded before the High Court in respect of
one minor point and that was in relation to her claim for the gold belt. The
High Court has ordered that Respondent No. 3 should return the said gold belt
to the appellant and that the appellant was not bound to pay to Respondent No. 3
the amount claimed by him. The result was that with a very slight modification,
the decree passed by the trial Court was confirmed, though on a different
ground. It is against this decree that the appellant has come to this Court by
special leave. It appears that respondents 1 & 2 had also preferred an
appeal in the High Court against a part of the decree passed by the trial
Judge, and the said appeal was dismissed. With that part of the case, we are
not concerned in the present appeal.
The first point which has been urged before
us by the appellant is that the High Court was in error in holding that the
immovable property described in Sch. I had been purchased by the appellant's
father benami in the name of his wife. Some facts material to this issue are
not in dispute. It has been found by both the Courts below that the
consideration which was paid for the sale transaction proceeded entirely from
the appellant's father; so that in dealing with the question as to whether the
title to the property vested in the appellant's mother or not, we have to
proceed on the basis that the whole of the consideration was paid by the
appellant's father and not by her mother. The case of the 6 appellant, however,
is that the subsequent conduct of the parties and particularly the
correspondence produced by the appellant clearly showed that the appellant's
father admitted the title of the appellant's mother, and it is urged that the
High Court was in error in reversing the finding of the trial Court that the
property really belonged to the appellant's mother. In order to deal with the
merits of this argument, it is necessary to refer to the material
correspondence on which the appellant relies. Exhibit B is a letter written by
the appellant's father to her (appellant's) husband on the 1st August, 1944. In
this letter, the appellant's father has used words which clearly show that he,
treated the property as belonging to his wife.
He says "she (the appellant's mother)
tells me that you almost agreed to come and stay in the estate and for that
purpose she has asked me not to let out both the houses occupied by Iyer",
and then he adds, "she says that she will give Rs. 50 a month with the
above free quarters". Then on the 21st June, 1945, a letter was addressed
to the Sub Division Officer, Bangalore Sub-Division, Bangalore, by the
appellant's mother (Exbt. H). This letter is in relation to the properties with
which we are concerned, and it has been addressed clearly and unambiguously on
the basis that the title to the property vests in the appellant's mother.
In the course of this letter, she says that
about the 10th May, 1945, the authorities of the Hindustan Aircraft approached
her through her husband for permission to put up and install a few electric
lights against the runway to the length -of about 700 or thereabouts, and that
she gave them the permission on the strict understanding that the rest of her
plantation should not be disturbed.
Similarly, on the 28th May, 1946, the
appellant's father wrote to the Officer-in-charge Claims, Bangalore, acknowledging
receipt of a cheque which had been issued by the said Officer in favour of the
appellant's mother for Rs.
2511-3-0. On the 23rd May, 1946, the
appellant's father wrote a letter to his wife, and some of the statements made in
it clearly suggest that the appellant's father admitted his wife's title to the
properties in question. "Mr. Loganatha Mudaliar," says the letter,
"told me that you had said to write some Estate Will. We have talked about
this already. You ought not 7 to have told him without telling me again ....
Money also should be given along with estate. I will see to all as per
,,convenience. If you be without sorrow, you may come out happily early."
At this time, the appellant's mother was ill and was presumably thinking of
making a will of her own properties. In that context, the letter sent by the
appellant's father to his wife is very significant.
It is true that the actual management of the
property was done by the appellant's father; but that would inevitably be so
having regard to the fact that in ordinary Hindu families, the property
belonging exclusively to a female member would also be normally managed by the
Manager of the family;
so that the fact that the appellant's mother
did not take actual part in the management of the property would not materially
affect the appellant's case that the property belonged to her mother. The rent
was paid by the tenants ,and accepted by the appellant's father; but that,
again, would be consistent with what ordinarily happens in such matters in an
undivided Hindu family. If the property belongs to the wife and the husband
manages the property on her behalf, it would be idle to contend that the
management by the husband of the properties is inconsistent with the title of
his wife to the said properties. What we have said about the management of the
properties would be equally true about the actual possession of the properties,
because even if the wife was the owner of the properties, possession may
continue with the husband as a matter of convenience. We are satisfied that the
High Court did not correctly ;appreciate the effect of the several admissions
made by the appellant's father in respect of the title of his wife to the
property in question. Therefore, we hold that the property had been purchased
by the appellant's mother in her own name though the consideration which was
paid by her for the said transaction had been received by her from her husband.
As soon as we reach this conclusion, it
becomes necessary to consider whether the appellant's suit must fail for non-joinder
of necessary parties. It is common ground that the appellant has brothers
alive, and even in the trial Court respondents 1 and 2 took the alternative
plea that if the property was found to belong to the appellant's mother, under
8 the relevant Mysore law the appellant and her brothers would be entitled to
succeed to that property and the non-joinder of the brothers was, therefore,
fatal to the suit. In fact, as we have already indicated, the trial Court had
dismissed the appellant's suit on this ground. The decision about the question
as to the appellant's title to this property would thus depend upon the
construction of the relevant provisions of the Act. Section 10 is relevant for
Section 10(1) defines 'Stridhan' as meaning
property of every description belonging to a Hindu female, other than property
in which she has, by law or under the terms of an instrument, only a limited
estate. Section 10(2) prescribes an inclusive definition of the word 'Stridhan'
by clauses (a) to (g). The appellant contends that the property in question
falls under s. 10(2) (b), whereas according to the respondents it falls under
s. 10(2) (d). There is no doubt that if s. 10(2) (b) takes in the property, the
appellant would be exclusively entitled to it and the plea of nonjoinder of her
brothers would fail. On the other hand, if s. 10 (2) (d) applies to the
property, the appellant will not be exclusively entitled to the property and
her brothers would be necessary parties to the suit. In that case the plea of
non-joinder would succeed and the appellant's suit would be dismissed on that
account. The position with regard to the heirs who succeed to stridhan property
belonging to a Hindu female dying intestate has been provided for by s. 12 of
the Act and there is no dispute on that account.
Let us, therefore, consider under which
clause of s. 10 (2) the property in question falls. Section 10 (2) (b) refers
to all gifts received by a female at any time (whether before, at or after her
marriage) and from any person (whether her husband or other relative or a
stranger). It is thus clear that all gifts received from the husband at any
time would fall under s. 10(2) (b). The appellant's argument is that as soon as
it is found that the consideration for the sale proceeded solely from the
appellant's father it must follow that the property purchased with the said
consideration is a gift by the husband to his wife. The fact that the property
has been purchased in the name of the wife does not make any difference in
substance. Two transactions have taken place, 9 one a gift of the money by the
husband to his wife, and the other purchase of the property with the said money
in the name of the wife. Treating the two transactions as integrally connected,
it should be held that the purchase itself was made by the husband in the name
of his wife and that can hardly be distinguished from the gift of the said
property to the wife.
On the other hand, the respondents contend
that s. 10 (2) (b) can take in only gifts and not properties purchased with the
assistance of the gifts. If the appellant's father gave to his wife the amount
with which the property was purchased, all that can be said is that the amount
given by the husband to his wife was a gift under s. 10 (2) (b).
What the wife purported or chose to do with
the amount gifted to her by her husband is entirely a different matter.
She might have purchased the property, or she
might have kept the amount in bank. If the amount had continued in the bank and
its identity was not in dispute, it may have been impressed with the character
of Stridhan as described in s. 10 (2) (b). But if the amount was utilised by
the wife for purchasing the property in her own name, the purchase is hers and
the purchased property cannot be said to be gift from the husband to his wife.
Section 10(2 ) (d) refers to property acquired by a female by purchase,
agreement, compromise, finding or adverse possession. The respondents urged
that one has merely to read clause 10(2)(d) to be satisfied that the purchase
of the property in this case falls squarely under it.
We have carefully considered the arguments
thus presented to us by the respective parties and we are satisfied that it
would be straining the language of s. 10(2)(b) to hold that the property
purchased in the name of the wife with the money gifted to her by her husband
should be taken to amount to a property gifted under s. 10(2) (b). The argument
about the substance of the transaction is of no assistance in the present case,
because the requirement of s. 10(2) (b) is that the property which is the
subject-matter of devolution must itself be a gift from the husband to the
wife. Can we say that the property purchased under the sale-deed was such a
gift from the husband to his wife? The 10 answer to this question must clearly
be in the negative.
With what funds the property is purchased by
the female is irrelevant for the purpose of s. 10(2)(d); so too the source of
the title to the fund with which the said property was purchased. All that is
relevant to enquire is: has the property been purchased by the female, or has
it been gifted to her by her husband? Now, it seems clear that in deciding
under which class of properties specified by clauses (b) and (d) of s. 10(2)
the present property falls, it would not be possible to entertain the argument
that we must treat the gift of the money and the purchase of the property as
one transaction and hold on that basis that the property itself has been gifted
by the husband to his wife. The obvious question to ask in this connection is,
has the property been gifted by the husband to his wife, and quite clearly a
gift of immovable property worth more +.ban Rs. 100 can be made only by
registered deed. The enquiry as to whether the property was purchased with the
money given by the husband to the wife would in that sense be foreign to s. 10
(2) (d) ; gift of money which would fall under s. IO (2) (b) if converted into
another kind of property would not help to take the property under the same
clause, because the converted property assumes a different character and falls
under s. 10(2) (d). Take a case where the husband gifts a house to his wife,
and later, the wife sells the house and purchases land with the proceeds
realised from the said sale. It is, we think, difficult to accede to the
argument that the land purchased with the sale-proceeds of the house should,
like the house itself, be treated as a gift from the husband to the wife; but
that is exactly what the appellant's argument will inevitably mean. The gift
that is contemplated by s. 10 (2) (b) must be a gift of the very property in
specie made by the husband or other relations therein mentioned. Therefore, we
are satisfied that the trial Court was right in coming to the conclusion that
even if the property belonged to the appellant's mother, her failure to implied
her brothers who would inherit the property along with her makes the suit
incompetent. It is true that this question had not been considered by the High
Court, but since it is a pure point of law depending upon the construction of
s. 10 of the Act, we do not think it necessary to remand the case for that
purpose to the High Court. Facts which are necessary to 11 decide the question
under s. 10 (2) have been found and there is no dispute about them. The only
point to decide is, on a fair construction of s. 10(2) (b) and (d) which of the
said two clauses takes in the property in question.
This appeal was argued before us on the, 22nd
August, 1963. At the said hearing, we had suggested to the parties to consider
whether they could amicably settle the dispute between themselves. Accordingly,
we allowed the matter to stand over to enable the parties to negotiate the
settlement, if possible. Ultimately, on the 13th September, 1963, the
Appellant's counsel reported to the office that no settlement was possible.
However, in the meanwhile, on the 6th September, 1963, the appellant's counsel
filed an application for leave to add the appellant's two brothers T.
Narayanaswamy and T. Vasudevan as
co-plaintiffs to the plaint, or if they are not willing to join as
co-plaintiffs, then as defendants 4 and 5. This application is opposed by
respondents 1 and 2. That is how this appeal was placed before the same Bench
once again on the 13th December, 1963.
We do not think there is any justification
for allowing the appellant to amend her plaint by adding her brothers at this
late stage. We have already noticed that the plea of non-joinder had been
expressly taken by respondents 1 and 2 in the trial Court and a clear and
specific issue had been framed in respect of this contention. While the suit
was being tried, the appellant might have applied to the trial ,Court to add
her brothers, but no such application was made. Even after the suit was
dismissed by the trial Court on this ground, it does not appear that the
appellant moved the High Court and prayed that she should be allowed to join
her brothers even at the appellate stage, and so, the High Court had no
occasion to consider the said point. The fact that the High Court came to the
contrary conclusion ,on the question of title does not matter, because if the
appellant wanted to cure the infirmity in her plaint, she should have presented
an application in that behalf at the hearing of the appeal itself. In fact, no
such application was made even to this Court until the appeal was allowed to
stand over after it was heard. Under the circumstances, we do not 12 think it
would be possible for us to entertain the said application. In the result, the
application for amendment is rejected.
It is unfortunate that the appellant's claim
has to be rejected on the ground that she failed to implead her two, brothers
to her suit, though on the merits we have found that the property claimed by
her in her present suit belonged to her mother and she is one of the three
heirs on whom the said property devolves by succession under s. 12 of the Act.
That, in fact, is the conclusion which the trial Court had reached and yet no
action was taken by the appellant to bring the necessary parties on the record.
It is true that under 0. 1 r. 9 of the Code of Civil Procedure no suit shall be
defeated by reason of the misjoinder or non-joinder of parties; but there can
be no doubt that if the parties who are not joined are not only proper but also
necessary parties to it, the infirmity in the suit is bound to be fatal. Even
in such cases, the Court can under 0. 1 r. 10, sub-rule 2 direct the necessary
parties to be joined, but all this can and should be done at the stage of trial
and that too without prejudice to the said parties' plea of limitation. Once it
is held that the appellant's two brothers are co-heirs with her in respect of
the properties left intestate by their mother,, the present suit filed by the
appellant partakes of the character of a suit for partition, and in such a suit
clearly the appellant alone would not be entitled to claim any relief against
the respondents. The estate can be represented only when all the three heirs
are before the Court. If the appellant persisted in proceeding with the suit on
the basis that she was exclusively entitled to the suit property, she took the
risk and it is now too late to allow her to rectify the mistake.
In Naba Kumar Hazra & Anr. v. Radheshyam
Mahish & Ors.(1) the Privy Council had to deal with a similar situation, In
the suit from which that appeal arose, the plaintiff had failed to implead
co-mortgagors and persisted in not joining them despite the pleas taken by the
defendants that the comortgagors were necessary parties and in the end. it was
urged on his behalf that the said co-mortgagors should be allowed to be
impleaded before the Privy Council. In (1) A.I.R 19 31 P.C. 229.
13 support of this plea, reliance was placed
on the provisions of O. 1 r. 9 of the Code. In rejecting the said prayer, Sir
George Lowndes, who spoke for the Board observed that "they are unable to
hold that the said Rule has any application to an appeal before the Board in a
case where the defect has been brought to the notice of the party concerned
from the very outset of the proceedings and he has had ample opportunity of
remedying it in India." In the result, the appeal fails and is dismissed.
The appellant has been granted special leave to file this appeal as a pauper.
In the circumstances of this case, however, we direct that she need not pay the
Court-fees which she would have had to pay if she had not been allowed to
appeal as a pauper. There would be no order as to costs throughout.
MUDHOLKARJ.-I regret my inability lo agree
with the conclusion of my learned brother Gajendragadkar J. on the second point
and consequently with the ultimate decision -of the appeal as proposed by him.
My reasons for taking a different view are these:
The sale deed on which the appellant relies
admittedly 'stands in the name of her mother. It is no longer in dispute that
the consideration for the transaction proceeded not from her mother but from
her father. It was because of this latter circumstance that the respondents
contended that the transaction was benami. After examining the entire evidence
adduced by the parties,, the trial court negatived the respondent's contention.
Though the High Court took a -different view, my learned brother has held and
in ,my opinion rightly, that the conclusion of the High Court -was wrong and
that of the trial court was correct on this point.
The position, therefore, is that the property
in question was that of the appellant's mother at her death. The respondents,
however, contended that even so the suit must fail because the appellant had
failed to join her brothers as parties to the suit because they were co-heirs
of their mother along with her. That would be the correct position under s. 12
of the Mysore Hindu Women's Rights Act provided the property is deemed to have
been purchased by the mother herself. The short question, therefore, is whether
14 upon the findings that the property was not purchased by the appellant's
father benami in the name of her mother and that the consideration for the transaction
entirely flowed from the father, the inference must be that the property was
purchased by the mother. No doubt, the sale deed stands in her name. But the
fact remains that the consideration did not flow from her but from the
appellant's father. It is interesting to mention that on February 9, 1948 the
respondent's counsel made an application under 0. VI, rr. 5 and 11, Code of
Civil Procedure calling upon the appellant to furnish further particulars with
regard to her claim to the property in question in view of s. 12 of the Mysore
Hindu Women's Rights Act. She furnished the following particulars on February
"The property detailed in Schedules 1
and 11 was all conveyed to Rajambal under one sale deed as stated in paragraph
5 of the plaint.
She stood by her husband in his adversity
sacrificing her possessions for him which she got as presents from her own
parents. He was deeply attached to her, and indeed they were a loving couple.
Out of love, affection and gratitude and with a view to make her self sufficient,
he provided the money to acquire the property for her own, absolute use, which
she while alive had even decided and announced to give away to the plaintiff
ultimately." The appellant's case, therefore, clearly is that the purchase
money was provided by her father for acquiring property for the absolute use of
her mother. By negativing the finding of benami made by the High Court we are
in effect holding that the property was acquired by the appellant's father with
his own money for her mother. In this state of affairs; it is difficult to see
how the transaction could be split up into two parts, i.e.,, a gift of the
money by the father to the mother in the first instance and the purchase by the
mother of that property subsequently with that money. In my judgment, upon the
pleadings there is no scope for splitting up the transaction into two parts
like this. It is not even an alternative contention of the respondents that the
trans15 action was in two parts and that what the father gifted was the money
and not the property. It would be *indeed an artificial way of looking at the
transaction as was done by the trial court as being constituted of two parts.
The transaction in my judgment is one indivisible whole, and that is, the father
provided the money for acquiring the property in the mother's name. Therefore,
in effect it was the father who purchased the property with the intention of
conferring the beneficial interest solely upon the mother.
Such a transaction must therefore amount to a
gift. In that view the property would not fall under cl. (d) of s. 10 of the
Act but under cl. (b) of that section. Therefore, the appellant would be -the
sole heir of her mother and the non-joinder of her brothers would not defeat
the suit so far as she is conceded. In the result I would set aside the decree
of the courts below in so far as the property in question, Beverly Estates, is
concerned and decree the appellant's suit with respect to it in addition to the
property with respect to which she has already obtained a decree in the courts
below. I would further direct that the respondents will pay to the appellant
proportionate costs in all the courts.
ORDER BY COURT In accordance with the opinion
of the majority the appeal is dismissed. No order as to costs. Appellant need
not pay court fees.