TMI Blog1948 (12) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... Subramania Sastri (Plaintifi) Ayyasami Sastri (7th defendant) RAGHURAMA SASTRI Ramaswami Sastri Mahadeva Sastri Two other daughters Akilandammal=Kuzhandai Ammal Gangadhara Ayyar Sundaram Ayyar=Kamakshi (2nd defendant) Ammal (1st defendant) Panchapakesa Ayyar Natesa Ayyar Kamakshi Ammal (1st defendant) Parvathi Ammal (3rd defendant) (4th defendant) =Sundaram Ayyar 4. The plaintiff and defendant 7 are the collaterals of Ayyasami Sastri's son, Sundaram Ayyar, while defendant 1 is his widow and defendants 2, 3 and 4 are his brothers-in-law. This litigation is being fought out between close relations of the, same family. 5. Ayyasami Sastri died in 1889, leaving him surving Sundaram, a minor son eighteen months old, and a widow. The only property admittedly possessed by him was under mortgage. Soon after his death, his widow along with the minor child went to her parents' house in the village of Allur. Apparently she had not any good means of subsistence in her husband's village. When Sundaram came of school-going age, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement is furnished by the unimpeachable evidence of his bank accounts. In the Imperial Bank of India, Bellary, he had an account, copy of which is Ex. P-16 (a). This account started on 2nd May 1921 with a deposit of ₹ 2517-8-0 and continued till 8th February 1926. Exhibit P-16 is an account of the fixed deposit of Sundaram in the Trichinopoly District Co-operative Central Bank Limited from 1920 to 1937. The first deposit in this account, as appears from the extract, is dated 3rd April 1923 and is in the sum of ₹ 4000. Several deposits were made, renewed and withdrawn up to 1929. In that year he withdrew a sum of ₹ 4,200 from this account. The savings fund account and the fixed deposit account were running simultaneously. In August 1924, Sundaram invested a sum of ₹ 3000 in a mortgage of certain property [EX. D-1 (b)]. He also purchased certain Government Promissory Notes of the value of about ₹ 2500. On this evidence, the trial Judge found that till 1924 Sundaram had accumulated a sum of ₹ 11,000 in his own account, though he was drawing a small salary of ₹ 40 to 50 a month during that period. The accounts since the year 1929, kept by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till one year after his death. They were living at Allur to which place they had returned after the death of Sundaram at Guntur. Akilandammal got ill and went for treatment to Trichinopoly and within three days of her departure from Allur she executed a will at Trichinopoly on 15th October 1938 in favour of Gangadhara. Ayyar, defendant 2 in the case and witness 7 on behalf of the defendants. Gangadhara Ayyar, as indicated above, is the son of Ramaswami Sastri, elder brother of Akilandammal. The whole benefit under this will was taken by Gangadhara Ayyar and other relations were ignored. The widow of Sundaram was practically left unprovided for. It is this will that is the starting point of troubles in the two families. It was asserted in this document that all the properties that were being bequeathed in favour of Gangadhara Ayyar formed part of the stri-dhanam of the testator. This assertion overlooked the fact that for a period of about eighteen years Sundaram Ayyar had been earning and otherwise acquiring wealth and that he had considerable funds in his possession at the time of his death. No satisfactory explanation was forthcoming on defendants' case as to what happened to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at instead of defendant l alone getting all the properties mentioned above, they were divided between defendants 2, 3 and 4, and the widow was given maintenance allowance and a right to adopt, but not outside the families of these three persons. The plaintiff and defendant 7, the reversioners of Sundaram Ayyar, stood completely deprived of all chance of succeeding to these properties under the arrangement above described, and in February 1940 they issued notices challenging this settlement. These notices were followed by the institution of the suit under appeal on 17th June 1940. The plaintiff sued for a declaration that the eleven properties described in the two schedules annexed to the plaint belonged to the estate of Sundaram Ayyar, who died on 14th September 1937 and that the deed of settlement executed by Akilandammal, Sundaram Ayyar's mother, of 3rd November 1938 was void. The contesting defendants, inter alia, pleaded that the properties belonged to Akilandammal and that she was entitled to make this settlement. 10. The learned Subordinate Judge held that six properties out of the eleven in suit had been bought with Sundaram Ayyar's money and therefore his mother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions had not been fully appreciated. It is settled law that the onus of establishing that a transaction is benami is on the plaintiff and it must be strictly made out. The decision of the Court cannot rest on mere suspicion, but must rest on legal grounds and legal testimony. In the absence of evidence, the apparent title must prevail. It is also well established that in a case where it is asserted that an assignment in the name of one person is in reality for the benefit of another, the real test is the source whence the consideration came and that when it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts. The Courts below proceeded to decide the case after fully appreciating the above rule and in our judgment their decision does not suffer from the defect pointed out by the learned Counsel for the appellants. 15. There are certain facts which have been held established in the two Courts below and on the basis of which a decision has been reached against the appellants. These are: (1) that Sundaram Ayyar had the means to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s case as well as direct evidence furnished by the letters, Ex. P.3 series. (v) That the transaction evidenced by Ex. D. 11 for ₹ 1000 dated 7th July 1937 was done by Sundaram Ayyar. He sent the money and he also conducted the negotiations for the purchase. 16. In view of these conclusions concurrently reached by the two Courts below, I do not consider that the appellants have any case regarding the six properties in dispute and it is not open to them to ask us to reconsider these findings. 17. Their Lordships of the Privy Council have always expressed unwillingness to depart from the general rule which prevents the fresh examination of facts for the purpose of disturbing concurrent findings by the lower Courts. In Moung Tha Huyeen v. Moung Pan Nyo 27 I.A. 166 Lord Hobhouse in delivering the opinion of the Board, observed as follows: Although acuta critioisms have been made upon some points in the case, there has been nothing to show that there has been a miscarriage of justice, or that any principles of law or of procedure have been violated in the Courts below. This case is one which very decidedly falls within the valuable principle recognized here, and-commonly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the evidence for a third time unless there were special circumstances which would justify a departure from this practice. As observed by Lord Thankerton in Bibhabati v. Ramendra Narayan 51 A.I.R. (34) 1947 P.C. 19, the practice is not a cast iron one and the grounds given in the decisions justifying departure from the above rule are merely illustrative. In an appropriate case and on a suitable occasion this matter may have to be fully considered and elucidated in all its aspects, but for the purposes of this case it is enough to state that in the absence of circumstances justifying departure from this rule, this Court would adhere to the practice developed by the Judicial Committed during the course of a century. 19. In this case there is no pretence for saying that there is any error of law, and that the concurrent findings of fact are not conclusive. The learned Counsel for the appellants particularly wished to attack the findings of the lower Courts in respect of the sale deed, Ex. D.6, and contended that here the two Courts had erred in law. He contended that the decision of the Courts that the property covered by this deed belonged to Sundaram Ayyar was based on the-conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yar's accounts. We have also pointed out that if Akilandammal had no means, all of the purchases standing in her name must have been made out of Sundaram Ayyar's money. Then it is to be borne in mind that it has been proved that the first loan lent by Akilandammal was of her son's money and no purchase of property was made until Sundaram Ayyar had been in the Income Tax department for ten years. This being the position, the Subordinate Judge should have held that the plaintiff had discharged the burden of proof which lay on him in respect of the transactions represented by Exhibits D-2, D-3, D-4 and D-8. The learned Counsel for the appellants subjected this part of the judgment to a severe criticism and contended that the finding that Akilandammal had no funds of her own was contrary to the evidence on the record, and that no grounds existed for disturbing the decision of the trial Judge on this point. He stressed the point that the High Court had also lost sight of the rule of onus of proof while reaching its conclusions about these properties. It was said that the High Court was not right in the observation that the very first loan lent by Akilandammal was from her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto the possession of his widow, Kamakshi Ammal. Her mother-in-law, on her return from Trichinopoly, discovered this and filed a complaint against her. As a result of this complaint, most of the documents were produced before the police officer. Some of these were kept by him, while the others were returned to defendant 2 to be kept on behalf of the widow. It was not denied that these documents did come into the possession of the defendants and were with them. During the pendency of the suit, documents, Exs. D-1 series, on which reliance was placed by the defendants, were produced by them on 7th July 1942. Some of the documents were produced by them in October 1942 as well. These documents did not include the accounts, which are contained in the books, Ex. P-1 or Ex. D-35. They came to the Court from the Stationary Sub-Magistrate, Trichinopoly, on 20th October 1942. How these accounts reached the Court of the Magistrate is disclosed by a copy of the complaint, EX. D-82, filed by Kamakshi Ammal, wife of Sundaram Ayyar, against defendants 2 and 4 under Section 406, Penal Code. In this complaint she stated that the documents were produced before the police at Tiruchendurai, and that s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to all the properties in respect of which account was maintained in these books and for the view that these books did not belong to the mother. There is, however, intrinsic evidence in the case justifying the conclusion that the account books produced in the case are of Sundaram Ayyar. In the letters exhibited as P-3 series, defendant 2 was rendering accounts of all the eleven properties to Sundaram Ayyar. He was managing them on his behalf. No distinction was being maintained as regards these four properties from the other properties which both the lower Courts have found to belong to Sundaram Ayyar. The accounts annexed with these letters and sent to Sundaram Ayyar, were duly entered in the account books. By way of illustration, it may be pointed out that Sundaram Ayyar withdrew ₹ 4000 from the Co-operative Bank and lent it to various per-sons. Out of this, a sum of ₹ 2000 was lent to N. Ramaswami Ayyar on a promissory note and other sums of Bs. 1000 and ₹ 650 were lent to other persons. ₹ 350 remained as balance and this was accounted for in the accounts contained in Ex. P-l. The whole of the sum of ₹ 4000 which admittedly belonged to Sundar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roof that Sundaram Ayyar was doing any work or was employed anywhere between 1916 to 1919. Presumably the money advanced on promissory notes taken during this period was out of the savings of the lady herself. With respect to the promissory note of the year 1915, however, the High Court was right in holding that this was taken with Sundaram Ayyar's money as it was so admitted by the defendants in the recitals in the mortgage deed taken in Sundaram Ayyar's name, but it has to be pointed out that this was not the first promissory note, the first being of the year 1912. Further, from this fact, a decision could not be reached as regards the ownership of the moneys covered by three other promissory notes which relate to this period. It may therefore be that Akilandammal had some money of her son up to 1924 and was not a pauper, but that fact does not in any way affect the decision of the appeal because there is no evidence that after the year 1919 she did any business or earned any further money. She might have spent the money that she had, or she might have handed it over to her son; but there is no connection of these small sums which she had with the acquisition of propertie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the son might be managing the properties of the mother. The cumulative effect of the evidence on the record and the circumstances above narrated however do not warrant that conclusion. The correct conclusion seems to be that the son was making money and whatever little monies were with the mother were in the hands of the son, he was acquiring properties for himself and to please his mother and to save the eye of the officials he was putting the properties in the name of his mother, while he himself was paying the price for them, was negotiating for them and was receiving their benefit. He employed defendants 2 and 4 for managing these properties and for carrying on his business. They were his very near relations and he fully trusted them. 28. The High Court, therefore, correctly reached the decision that Akilandammal had not funds enough to embark on acquisition of the suit properties in the years 1929-37. This conclusion harmonizes with the fact that the only person who had the means to acquire these properties and who was interested in acquiring them was Sundaram. Akilandammal might have been in possession of some funds of her own in 1924, but that fact does not effect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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