The presumption of benami can be rebutted by evidence of the wife's funds and possession, and a husband's will dealing with property as his own is not conclusive proof of benami.

JUDGMENT :- The facts of this second appeal are within a very short compass, and the question is whether, in reversing the judgment and decree of the first court, the learned Additional Subordinate Judge in the first appeal has not committed a palpable error of law and thus arrived at a wrong conclusion altogether. The facts are as follows:

2. The suit was by one Lakshmi Ammal, the widow of a certain Lakshminarayana Aiyar, for declaration of title and permanent injunction with regard to a piece of property, measuring 38 cents in S. No.130/3 in Ochalam village, Arkonam taluk. The following facts are not in dispute. The property originally belonged to one Subbarama Aiyar, D.W.1, and, from him, the plaintiff (Lakshmi Ammal) purchased this property under Ex.B.1 for Rs.50 on 10-12-1939. The plaintiff claims that, after the purchase, there was mutation of registry in her name, and that she was enjoying the suit property by leasing the property to others. The defendant is the legatee of the properties of Lakshminarayana Aiyar under a will executed by Lakshminarayana Aiyar, who died on 19-3-1955. The case of the defendant is that the plaintiff did not purchase this property and did not advance moneys for the acquisition. The property was purchased by the husband of the plaintiff (Lakshminarayana Aiyar) with his own funds, benami in the name of the wife. The reason was that the vendor, Subbarama Aiyar, was living in another village, and he found it inconvenient to proceed to the Registrars office for registration of the document of sale. The husband of the plaintiff had a power of attorney from this vendor for the purpose of registration, and, hence, the parties arranged that the wife (plaintiff) should be a purchaser benami for her husband. Lakshminarayana Aiyar has dealt with this property as his property under his registered will (Ex.B.3) where he has devised his properties in favour of the defendant. The defence set up was thus a case of benami, affirming the title of the testator. It was also alleged that the plaintiff never had any possession or enjoyment in the property within the statutory period.

3. The trial Court went into these issues full and with care, and held in favour of the ostensible title of the wife. Indeed, unless the defendant had thoroughly substantiated the plea of benami, it is difficult to see how any other conclusion is possible. The title deed is in the name of the wife, and the amount of sale consideration Rs.50 is a small sum which the wife could have well provided out of her own funds, as she has sworn. The patta was transferred in her name, and, till Lakshminarayana Aiyar died on 19-3-1955, there is absolutely nothing to show that possession and enjoyment was not with the wife, as the holder of title. The case of the defendant is that it is Lakshminarayana Aiyar who had the possession and enjoyment; obviously, when it is a question of husband and wife who are living together, the presumption cannot be drawn that the husband is in possession to the exclusion of the wife, particularly where the sale has been followed by transfer of registry. The defendant comes into the picture if at all, only after 1955, and, admittedly, the defendant filed a suit (O.S. No.133 of 1956) under S.9 of the Specific Relief Act, claiming dispossession of his lessee by the plaintiff. For these reasons, it is clear that, unless the defendant satisfied the court that the holder of the ostensible title (Plaintiff) was not the real owner, but that she was a benamidar for her husband, the plaintiff is bound to succeed and the appeal will have to be allowed.

4. The first appellate court reversed the decree of the trial Court in a judgment in which there appear to be several errors and mis-statements of fact. The law is also erroneously stated in a portion of this judgment. True it is that the Judicial Committee observed in Sura Lakshnaiah Chetti v. Kothandaram Pillai, 49 Mad LJ 109 : (AIR 1925 PC 181) that a purchase by an Indi