Lord Sumner:-

In this case the plaintiffs sued to recover proprietary possession with mesne profits of a 12-anna share in Mouza Hansi Mau, in the district of Cawnpore. They are members of a joint Hindu family, the Tewaris, governed by Mitakshara law, and claim this mouza as part of their undivided property. The circumstances are such that the plaintiffs' right, if any, has not been barred by adverse possession and lapse of time. It is convenient to speak of one defendant, Suraj Kunwar though there are others, his vendees. The property is small; it seems to yield 500 rupees per annum, but it has been fought for, at prodigious length and cost.

In the first instance the burden of proof was on the plaintiffs, but they produced a conveyance, dated the 3rd August 1863, under which the property in question was conveyed on sale to Musammat Babbo Kunwar, guardian of her son Suraj Parshad, then a minor, both being members of the Tewari family. There was also evidence that the purchase consideration was provided out of joint funds. The rights of Suraj Parshad, have now descended to the plaintiffs, and it is not contended that Musammat Babbo Kunwar took any interest for herself. The defendant produced no conveyance in his own favour, but claimed that the purchase of 1863 was in truth a benami transaction, for the separate benefit of his wife, to whose rights he succeeded when she died in 1871. Thus the burden of proof passed to the defendant very early in the case.

His story was this. At the age of 8 or 9 years he was married to his wife, Musammat Sheorani Kunwar, who was about 3 years older. His "elders consented to this marriage from avaricious motives," and so he went to live thenceforward in his wife's father's house. Basti Ram, his father-in-law, died in 1860. In his later years he had lived a disreputable and extravagant life, and, as he neared his end, he was minded and entitled to make reasonable provision for his daughter out of family funds. The family wealth would pass to her brother, Suraj Parshad, and the family into which she had married, though "Kanaujia Brahmans of a superior grade," were poor. Suraj Kunwar testified that he recollected how Basti Ram, less than three months before he died, on the same day that he performed "gausat-dan" gave to Musammat Sheorani in his presence gold mohurs to the value of 10,000 Rupees saying to his wife, Musammat Babbo Kunwar, "You can purchase some village worth 10,000 Rupees for our daughter." Suraj Kunwar was then a little over 13. He also called as a witness a friend, who, as a boy of 10, and an inmate of the household, remembered, or said that he remembered, this scene. What might well impress the husband of 13 was a more dubious matter in the recollection of his friend of 10.

Mouza Hansi Man then belonged to one Ghazi Ram as his zamindari property. It was already in mortgage to Musammat Babbo Kunwar and two other ladies of the Tewari family, and 6000 Rupees out of the 10,000 Rupees were invested upon a mortgage of it, partly by discharging the amount due on the old mortgage, partly by fresh advances. The new mortgages were dated 1861 and 1862 and were in the names of Musammat Babbo Kunwar and her minor son, Suraj Parshad. The disappearance of the names of the other two ladies is used as an argument for saying that the transaction in question was not a joint family transaction. On the other hand, the fact that Musammat Babbo Kunwar was party to these instruments as guardian of Suraj Parshad certainly points strongly the other way. Finally, on the 3rd August, 1863, the property was purchased, also in her name, for 7,660 Rupees, the consideration being satisfied by discharging the principal and interest due on the prior mortgages. Musammat Babbo Kunwar's name according to Suraj Kunwar was inserted instead of her own at Musammat Sheorani's request. It was a benami transaction. Admittedly, until Musammat Babbo Kunwar died in 1890, ten years after her son. Suraj Parshad, the property was regis