JUDGMENT

Hobhouse, J. - In this case only one question was argued, and that was whether the two transfers executed by Gulab in the years 1863 and 1864 to Bissesur, the husband of her only daughter, were real transfers, or benami. That question turned out to be a complicated one, and it was necessary to go into a good deal of evidence of a varied and rather voluminous nature. The plaintiff maintains that the substance of the transaction is the same as the form of it, and that the property, consisting of four villages, conveyed to him by deeds, duly attested, registered immediately afterwards and subsequently proved and filed in a suit, was actually sold to him. As to the deeds there was no doubt. The only question is whether Bissesur, the grantee, was a benamidar.

2. It is familiar to us all that the system of putting property benami is so extremely common in India that the mere fact of a deed being executed in proper form, and apparently effecting a valid transfer to another, is not as good evidence of a real transfer as it would be in other countries, and even a slight quantity of evidence to show that it was a sham transaction will suffice for the purpose. Still such a transfer cannot be considered as nothing. The person who impugns its apparent character must show something or other to establish that it is a benami or sham transaction.

3. The first question here is, what are the probabilities of the case on consideration of the deeds themselves, and the position of the grantor? What motive had Gulab for putting the property into benami ? She was not purchasing the property. It was vested in her in possession, and had been so for aconsiderable number of years. It is not suggested that she was in any difficulties, so that creditors might be baffled by the proceeding. On the contrary it appears that she was a woman of substance and position in her, own country. The only suggestion is that, inasmuch as there was a suit between her and her brothers-in-law, represented by one Balbhadar, concerning these villages, she used this transaction in order to impede Balbhadar's proceedings. But whatever such a transfer might do to impede general creditors, it is difficult to see how it could impede Balbhadar, who was claiming the property by a title as directly available against a transferee from Gulab as against Gulab herself. Moreover the four villages were part of fifteen villages which were the subject of dispute between her and her brothers-in-law, and which he had received on a partition between them. With regard to some of the fifteen villages she was out of possession. With regard to these four she was in possession. She was in possession of more; it requires a minute examination to tell how many, but certainly of five, and no reason can be assigned why she should have selected four villages out of those which were in dispute, and which were in her possession, and have placed those 'four in the name of a benamidar. There is no antecedent probability that this is a benami transaction.

4. Then their Lordships ask what is the direct evidence on the pointoral evidence given by witnesses who profess to speak to it. There are two witnesses called for the defendant-Hira Singh and Sitaram-who say that the transaction was a sham one, and that Gulab remained in possession; apparently they mean to say during the rest of her life. Bat they give no details; they speak to no acts of possession; even as to the time' of possession their language is quite vague and general; and they tell, both of them, the most extraordinary story with respect to these deeds, namely, that when Balbhadar, the person against whom it was suggested that these deeds were to be a defence, appeared upon the scene, Gulab immediately told Balbhadar that the deeds were all sham deeds. Their Lordships have no hesitation in treating the evidence of those witnesses as worthless.

5. The only other witness who gives direct evidence on the subject is in rather a curious position. He w