Judgement

Appeal (No. 8 of 1924) from a decree (August 15, 1921) of the High Court in its appellate jurisdiction reversing a decree (August 31, 1920) of the Court in its original civil jurisdiction.

The appeal related to the ownership of two houses in Madras, which in 1909 had been purchased by one Chockalingam, the father of the respondent, in the name of his wife Lakshmi Ammal. Chockalingam had been declared an insolvent and his property vested in the Official Assignee.

The suit was brought on behalf of the respondent, a minor, against the Official Assignee and creditors of Chockalingam, it being claimed by the plaint that the houses were the stridhan property of Lakshmi Ammal and that upon her death they devolved upon the respondent.

It was contended that at the time of his marriage in 1900 Chockalingam orally agreed to settle some house property upon his wife, and that the houses in suit had been bought in pursuance of that agreement.

The trial judge (Phillips J.) found against the alleged oral agreement, and held that the purchase was a benami transaction. He accordingly dismissed the suit.

Upon appeal the decree was set aside and a decree made declaring that the houses had vested in Chockalingam. The learned judges (Schwabe C.J. and Wallace J.) found that part of the purchase money belonged to an infant brother of Lakshmi, and placed upon the defendants the onus of proving that the deed of sale of 1909 was not, what it purported to be, an absolute sale to Lakshmi Ammal.

1925. April 28, 29. De Gruyther K.C. and E. B. Raikes for the appellants. The evidence showed that the houses were bought by Chockalingam out of his own money, or, at any rate, that no part of it was his wifes. The onus was upon the plaintiff to prove that the transaction was not a benami one. The evidence did not establish the alleged oral agreement.

[Reference was made to Dhurm Das Pandey v. Shama Soondri Dibiah (( 1843) 3 Moo. I. A. 229, 241.); Gopeekrist v. Gungapersaud (( 1854) 6 Moo. I. A. 53, 72.); Uzhur Ali v. Ultaf Fatima (( 1869) 13 Moo. I. A. 232, 244.); Ram Narain v. Muhammad Hadi (( 1898) L. R. 26 I. A. 38.); Bilas Kunwar v. Desraj Ranjit Singh (( 1915) L. R. 42 I. A. 202.); Kerwick v. Kerwick(( 1920) L. R. 47 I. A. 275.); and Maynes Hindu Law, para. 441.]

Narasimham for the respondent contended on the evidence that the alleged ante-nuptial agreement was proved by the oral evidence, and that the plaintiff had satisfied any onus which was upon him.

May 22. The judgment of their Lordships was delivered by

SIR JOHN EDGE. This is an appeal from a decree, dated August 15, 1922, of the High Court of Madras, which reversed a decree, dated August 31, 1921, of the same Court made in its ordinary original civil jurisdiction, which had dismissed the suit.

The suit in which this appeal has arisen was brought in the High Court of Madras on November 19, 1918, by the plaintiff, a minor, by his next friend, against the Official Assignee of Madras and three moneylenders. One of the moneylenders died, and his legal representative was brought on the record as a defendant. The plaintiff is the respondent in this appeal.

The plaintiff is the son of V. S. Chockalingam Pillai, a Hindu of the Villala caste, by his wife, Lakshmi Ammal, who died before the suit was brought. The plaintiff is the sole heir of his late mother, and he claims the property to which the suit relates as her heir. On September 30, 1918, the plaintiffs father, Chockalingam, was adjudged insolvent by the High Court of Madras under the Presidency-Towns Insolvency Act (III. of 1909). The plaintiff claims in his suit, with other reliefs, a declaration that a piece of land with a dwelling-house and buildings thereon, being Nos. 4 and 5 Nainiappa Naick Street, are his exclusive property as the heir of his mother, and that his father, Chockalingam, had no beneficial or other interest in those properties, which could have vested in the Official Assignee or have been assigned by him in mortgage. Nos. 4