The central legal point established in the judgment is the application of Section 43 of the Transfer of Property Act to determine the entitlement of the plaintiff to recover a fractional share of the property.

1. The plaintiff sues her husband (the 1st defendant) and her husbands mother and sisters and brothers for recovery of a certain property, alleging that it was transferred to her by the 1st defendant in part payment of her mahr. The alleged transfer is by Exhibit A.

2. It is admitted before us that Exhibit A was executed by the 1st defendant, and that mahr was due from him when he executed it. The real contest in this Court is on the question whether it was the 1st defendant or his father who was entitled to the property, at the time when Exhibit A was executed.

3. The property was purchased on 27th March 1903 by the father of the 1st defendant, in the name of the 1st defendant (Exhibit I). On 9th July 1909 it was mortgaged by the two jointly for Rs. 300 (Exhibit II). On 22nd June 1910 Exhibit A was executed by the 1st defendant purporting to transfer the property to the plaintiff. On 1st September 1910, the 1st defendant executed a deed [Exhibit Id (a)] purporting to cancel Exhibit A, and another deed (Exhibit III) purporting to re-transfer the property to his father.

4. The District Judge, reversing the District Munsifs finding, has held that the property passed to the 1st defendant under Exhibit I, because there was nothing to negative the presumption that it was intended to make the 1st defendant the owner of the property.

5. He considers this conclusion supported by the fact that the property was subsequently mortgaged (by the 1st defendant and his father) for the expenses of the 1st defendants marriage. "So it may equally well be argued," he says, "that the property was ear-marked as belonging to the 1st defendant." This observation is not in sccordance with the prevailing custom amongst Musalmans, which requires the father to bear the expenses of his sons marriage.

6. On the broad question involved in the 2nd issue the authorities do not seem to have been brought to the notice of the learned District Judge; and he seems to have had in mind the presumption of advancement as prevailing in England. See, e. g., Stock v. McAvoy (1872) 15 Eq. 55 : 42 L.J. Ch. 230 : 27 L.T. 411 : 21 W.R. 521. That presumption, to use the words of Batty, J., in Bai Motivahoo v. Purshotam Dayal 29 B. 806 at p. 312 : 6 Bom. L.R. 975 does not arise in India, the source from which the purchase-money was paid shifting the onus; Suleiman Kadr Bahadur v. Mehndi Begum" 25 I.A. 15 : 25 C. 473 : 2 C.W.N. 186 : 7 Sar. P.C.J. 254.

7. The presumption has been stated to be the other way by the Privy Council in Moulvie Sayyud Uzhur Ali v. Musammat Bebee Ultaf Fatima 13 M.I.A. 232 : 13 W.K. (P.C.) 1 : 4 B.L.R. (P.C.) 1. 2 Sar. P.C.J. 522 : 15 E.R. 87 and in very clear terms in Naginbhai v. Abdulla 6 B. 717.

8. These two lastly mentioned pronouncements were made before the Indian Trusts Act was enacted, and the law must be now taken from Section 82 of that Act, which does not create any presumption of law. Our attention was drawn in this connection to what Batty, J., said in Bai Motivahoo v. Purshotam Dayal 29 B. 806 at p. 312 : 6 Bom. L.R. 975 at the original trial, his exposition of the law having been approved in appeal on page 314.

9. The Indian Trusts Act has not been extended to Bombay, and in that respect the law prevailing in Madras is, it was contended, different from that obtained in Bat Motivahoo v. Purshotam Dayal 29 B. 806 at p. 312 : 6 Bom. L.R. 975.

10. In our opinion, under the Indian Trusts Act, the Court must, in each instance where property is transferred to one person for a consideration paid or provided by another person, address itself to the question whether it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee. In doing so the particular circumstances of the case must, of course, be first considered; and so far as the circumstances and considerations referred to in the cases mentioned above, and in Dhurm Das Pandey v. Musammat Shama Soondri Dibiah 3 M.I.A. 229 at p. 240 : 6