The burden of proving that a purchase of property in the wife's name by the husband was a benami transaction is on the person who claims that the property was the absolute property of the wife.

JUDGMENT:- The defendants in O. S. No. 291 of 1970, who succeeded before the trial Court, but lost before the first appellate Court, are the appellants herein. One Palani Ammal is the mother of the first appellant herein. The suit properties stand in the name of Palani Ammal, purchased by her under Ex. A-2 dated 3-9-1949 and Ex. A-3 dated 17-8-1965. The respondent purchased the suit properties from Palani Ammal under Ex. A-1 dated 22-9-1969. Alleging that the appellants unlawfully trespassed on 5-3-1970, cut and removed the crops raised by the respondent, the suit was instituted for declaration of the respondent's title to the suit properties and for recovery of possession with mesne profits.

2. The case of the appellants was that though the suit properties were purchased in the name of the first appellant's mother, the consideration for the purchase of the properties came from the appellants' father viz., Madurai Naicker, and, therefore, the suit properties were the joint family properties, and Palani Ammal had no title to the properties, and consequently the respondent did not derive any title from Palani Ammal. In short, the case of the appellants was that the purchases under Exts. A-2 and A-3 were benami in the name of Palani Ammal for the benefit of the joint family. The learned District Munsif, who tried the suit, accepted this case of the appellants, and dismissed the suit instituted by the respondent. However, on appeal, the learned Principal Subordinate Judge, Chingleput, reversed that conclusion and held that the allegation, of benami put forward by the appellants was not proved, and consequently, Palani Ammal was the owner of the properties and was competent

to convey title thereto in favour of the respondent in the suit. With the result, he allowed the appeal preferred by the respondent and decreed the suit as prayed for. Hence the present second appeal by the defendants in the suit.

3. It has been repeatedly held by this court that when a husband purchased the property in the name of his wife by paying his own money from that alone no inference can be drawn that the wife was only a benamidar, and having regard to the nature of the relationship between the parties, and the normal tendency of the husband to benefit the wife either by payment of money or by purchase of property in her name, the allegation at benami can be established only by proving the motive for such benami purchase-vide Thangavi Ammal v. Gurunatha Goundan, (1963) 2 Mad LJ 151 and Ammaponnammal v. Shanmugham Pillai, AIR 1971 Mad 370. In view of this legal position settled by this court, prima facie, the conclusion of the learned Subordinate Judge is correct.

4. However, Mr. R. Sundaravaradan, the learned counsel for the appellants, contended that there are two decisions, one by this court and another by the Privy Council holding that when a husband purchased property out of his own money in the name of his wife, the burden of proving that the wife was intended to be the beneficial owner thereof is on the person who claims that the property was the absolute properly of the wife. In support of his contention, he relied on an observation contained in a Bench judgment of this court viz., Palani Mudaliar v. M. Natarajan, 1942-1 Mad LJ 528 = (AIR 1942 Mad 503). The relevant statements are found in Page 532 of the decision as follows:?

"Are these facts sufficient to establish an intention on the part of the first respondent to make a gift in favour of his wife? Krishnaswami Aiyangar J., did not think they were sufficient and his decision cannot be disturbed unless it is shown to be wrong. The burden is upon the appellants and I am not prepared to say that the burden has been discharged."

It is on the last sentence reliance was placed for contending that this sentence lays down the law that the burden of proving that the wife was intended to be the beneficial owner is on the person who claims that the wife was the owner of the property. I am of the opi