TMI Blog1930 (8) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... d and the learned Subordinate Judge on remand held that the shares in suit did not belong to the plaintiff and that the name of the son was not entered benami for the plaintiff as alleged, and therefore, dismissed the plaintiff's suit. On appeal, the learned District Judge held that there was no presumption of any intended advancement in favour of the son, and that the evidence adduced on behalf of the defendant was so slender and meagre that he would not be justified in holding that the defendant discharged the burden. He, therefore, set aside the decree of the lower Court and granted the declaration sought for. The second appeal was dismissed, and against the order summarily dismissing the appeal the defendant has filed this appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efeat the provisions of the law: see Govind v. Pacheco 4 Bom. LR 948. The question was considered by this Court in Ramkrishna Trimbak v. Narayan 31 Ind. Cas. 301; 17 Bom. LR 955; 40 B. 126, where it was held the Government Servants' Conduct Rule is not based upon any statutory prohibition, but is, as it is expressed to be, merely a rule of conduct. I agree with the view taken in the case of Manuel S. Lobo v. Nicholas Brilto 7 MLJ 268, where it was held that the acquisition of property by a Government servant in the name of another, in direct contravention of departmental rules, is not illegal, and that such Government servant if he is in possession of the property so acquired, is entitled to maintain a suit for declaration of hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ick 57 Ind. Cas. 834; AIR 1921 PO 56; 47 LA 275; 48 C 260; [1920] MWN 738; 39 MLJ 296; 28 MLT 194; 32 CLJ 490; 2 UPLR (PC) 153; 13 LW 455; 28 Bom. LR 730; 10 LBR 335 (PC) and Guran Ditta v. Ram Ditta 109 Ind. Gas. 723; AIR 1928 PC 172; 56 LA 236; 55 C. 944; 32 CWN 817; 29 PLR 429; 28 LW 66; 48 CL.J 119; 5 OWN 668; ILT 40 Lah. 144; 30 Bom. LR 1384; 55 MLJ 651; [1928] MWN 917 (PC), the general principle of equity applicable is that in the case of a voluntary conveyance of property by a grantor, without any declaration of trust, there is a resulting trust in favour of the grantor, unless it can be proved that an actual gift was intended, and though the law in England is somewhat different, in India there is no presumption of an intended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hares after the plaintiff gave notice to the bank not to pay dividends to the son on the ground that the transaction was benami. The learned Subordinate Judge, therefore, held that the plaintiff's claim was not barred by limitation as the suit was brought within six years when his claim was denied by the defendant. The lower appellate Court was not invited to go into the question of limitation when the case was argued before it, but during the course of the judgment the learned Judge observed that the bank on June 6, 1918, rejected the request by Exhibit 57, Taking that as the starting point of limitation, we think that the plaintiff's claim is not beyond time. It is not necessary to deal with the point based on sections 29 and 33 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaintiff, whether there is anything in the circumstances of this case which would prevent his recovering the property from the bank. So far as the argument is based on the Government Servants' Conduct Rules, it may be pointed out that rule 12 does not constitute an absolute prohibition but merely prohibits an investment other than an investment in immovable property which gives him such private interest in matters with which his public duties are connected as would be likely in the opinion of the Local Government to embarrass or influence him in the discharge of his duties. This is only a rule for Government servants' conduct and would not affect transactions between a Government servant and a private party, as has been held in Ramkrish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation. That point also does not seem to have been made in the Courts below. The learned Judge of the Appellate Court has referred on page 2 to the bank's refusal by Exhibit 57 to issue a consolidated certificate for the shares in dispute and for twenty-two other shares purchased by the plaintiff in May 1918. The rejection was on June 6, 1918. It was only after the plaintiff served the bank with a notice calling upon the bank not to pay the dividends to the son and telling them that the transaction was benami and that he was going to file a suit for such a declaration, that the bank advanced money to the son on the joint security of the shares and of one of his clerks, and even before us it has been admitted on behalf of the appellant t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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