The burden of proof lies on the Official Assignee to establish ownership of the properties claimed for insolvency proceedings. The presumption of property ownership in the name of a Hindu wife belonging to the husband was not upheld without evidence of the source of purchase money.

Krishnan, J.

1. This is an appeal by the Official Assignee against an order passed by my learned brother Waller, J., sitting in the insolvency Court. The appeal refers only to five items of the properties that are in dispute, namely. Items Nos. 1 and 9 to 12. There is no question about the other items before us. The Official Assignee claims that these properties are really properties of the insolvent, Vadivelu Gramani, and as such he is entitled to realise them for the purpose of paying off his creditors. Item No. 1 was purchased in the year 1901 for a sum of Rs. 350 under Ex. VII, and Items Nos. 9 to 12 were purchased in 1896 for a sum of Rs. 475 under Ex. VIII. Exhibit VII is in the name of both Murugammal and her son Vadivelu Gramani, whereas Ex. VIII stands exclusively in the name of Murugammal. Before the Official Assignee can get these properties, the burden is on him to establish the case he has put forward in Court, namely, that these properties really belonged to Vadivelu Gramanis father, Kanniappa Gramani; that they were purchased in the name of his wife and son benami for himself; and that after the death of Kanniappa Gramani, the properties became vested in his son Vadivelu Gramani. The learned trial Judge has come to the conclusion that the Official Assignee has failed to prove that the properties did really belong to Kanniappa Gramani. After hearing the arguments of the learned advocate for the appellant, I am of opinion that the learned Judges judgment is correct.

2. Originally there were 13 items in dispute. Of these 2, 7 and 8 were clearly proved to have been the properties of Vadivelu Gramanis maternal grandfather and to have been given to Murugammal by him. The case of the respondent is that the other properties also were purchased by Murugammals father and given to her and that her husband had nothing to do with them.

3. It is contended for the appellant that there is a presumption that where a property stands in the name of a Hindu wife, it really belongs to the husband and the burden is on the wife to prove that it is not so and it is her own property. To uphold such a presumption it is necessary for the person who wants to make out that the property is not the property of the person in whose name the document stands to establish that the money for their purchase came from the husband. If that is established there may be ground for saying that we should presume that the property was really the husbands bought in the name of his wife benami. Without proof of that kind it is not possible to hold that the burden is in the first instance on the woman to prove her ownership.

4. Then it is argued that the circumstances proved in this case show that the properties did not belong to Murugammal or at any rate there is sufficient evidence to shift the burden on to Murugammal to show that the property really belonged to her and that her husband had no claim to it.

5. Murugammal on behalf of herself and her son mortgaged all the 13 items to one Joshi in 1912. Later in the same year, to discharge that mortgage she mortgaged Items Nos, 1, 6, 9 to 13 to another sowcar one Boodmull sowcar. This time the mortgage stood in the name of the mother alone and Joshis mortgage was paid off. Subsequently the other sowcar brought a suit upon his mortgage impleading the mother and her son. The mother seems to have pleaded that she had no interest at all in those properties and that her mortgage was an invalid one. The son contended that the properties belonged to him. The mother and the son put in two written statements and these are strongly relied upon by the appellant as showing that the property does not belong to the mother. It is true that Murugammal stated so in her written statement and she must explain it. The explanation which she gives is that she was induced to sign the written statement by one Chokkalinga Mudali who was helping her at that time to defeat the rights of the sowcar and that she was not aware of what wa