Ramaswami, J.:— This appeal is presented on behalf of the plaintiff against the judgment and decree of the Additional Subordinate Judge of Ranchi, dated 31st May 1947.

The plaintiff, Hazaribagh Mica Mining Co., Ltd., had instituted a money suit in the court of the Subordinate Judge of Hazaribagh and obtained a decree for Rs. 24,540 inclusive of costs against Mr. G.C Kapoor defendant no. 3. In the course of execution proceedings the plaintiff attached two properties, (1) a house and land appurtenant thereto located on the Peace Road, Ranchi and (2) a plot of garden land, area 1.70 acre on Booty Road in Mahalla Morabadi. Defendant no. 1 Mrs. Ashalata Kapoor objected to the attachment on the ground that half share of the house belonged to her and that the entire garden land belonged to her minor son, defendant no. 2 Motichand Kapoor. The executing court allowed the objection and set aside attachment of the properties. The plaintiff thereupon brought the present suit under Order 21, rule 63. Civil Procedure Code asking for a declaration that the properties belonged to defendant Mr. G.C Kapoor and were liable to be sold in execution of the decree. Defendants 1 and 2 contested the suit but defendant no. 3 did not appear. Upon examination of the evidence the learned Subordinate Judge held that Mr. G.C Kapoor had title only to half share of the house on the Peace Road, that the other half share of the house belonged to Mrs. Ashalata Kapoor and that the Morabadi garden was owned by Motichand Kapoor and defendant no. 3 had no share in it. The learned Subordinate Judge accordingly granted a decree to the plaintiff in part.

As regards the Morabadi garden described in schedule 2 of the plaint learned counsel for the appellant argued that the purchase was made benami in the name of Motichand Kapoor, that Mr. G.O Kapoor, had really supplied the purchase money and hence the Morabadi garden was liable to be attached in execution of the decree obtained by the appellant. But, in my opinion, the circumstances proved in the case indicate that the purchase of the Morabadi garden, was not made benami in the name of Motichand Kapoor. It is not disputed that on 15th November 1942 a cheque for a sum of Rs. 6,500 was drawn by Mr. G.C Kapoor and Budh Singh jointly in favour of Mrs. Ashalata Kapoor. This cheque was credited to the current account of Mrs. Kapoor on the same date. On 16th of November 1942 the deed of sale, exhibit J/1, was executed by Sheo Prasad Marwari in favour of Motichand Kapoor and a cheque for Rs. 6,500 was given by Mrs. Ashalata Kapoor in favour of Ramrikhdas Mamraj, which was cashed on 18th November 1942. It was contended on behalf of the respondents that Mrs. Kapoor had lent Rs. 7,500 to her husband Mr. Kapoor for the purpose of partnership. Mr. Khosla, D.W 1 has corroborated the evidence of Mrs. Kapoor on the point. For the appellant it was pointed that it was improbable that Mrs. Kapoor should lend this amount to the firm without any document being executed. But there is no evidence adduced on behalf of the plaintiff to show that Mrs. Ashalata Kapoor in whose favour the cheque, exhibit 3/a, was drawn was a mere benamidar for Mr. Kapoor. On the other hand, there is evidence that Mrs. Kapoor was in possession of the necessary funds at the material time. D.W 3 stated that in 1943 Mrs. Kapoor was owner of a race-horse, named Sublaw jwhich was worth about Rs. 10,000 or thereabout. The witness added that the horse had won the Governor's Cup in the Tolly gunge race. The evidence of J.N Ray, Manager of the Bengal Central Bank, also shows that Mrs. Kapoor had purchased shares in the Bengal Central Bank in her own name worth about Rs. 1,000. There is also no evidence adduced in the case that Mr. Kapoor had any motive for entering into a benami transaction. Budh Singh admitted that Mr. Kapoor paid off all the advances made by him for the partnership business to the extent of Rs. 1,13,000 before 24th of November 1942. There is in truth no evidence to suggest that Mr. Kapoor was heavily indebted at the time. On the contrary, D.W 3 Kalicharan Poddar deposed that in 1942 Mr. Kapoor was owner of a separate race-horse. The letter exhibit D/1, shows that in September 1943 Mr. Kapoor had made a donation of Rs. 5,005 to the war fund. It is manifest that there was no motive for Mr. G.C Kapoor to enter into any benami transaction at the material time. There are other facts to be taken into account. After the purchase of the Morabadi garden Mr. Kapoor granted a lease of it on behalf of his minor son to the military authorities. The first lease was executed on 12th of April 1945, exhibit E/1, in which there is a statement that Rs. 1,850 would be paid as rent to Mrs. Ashalata Kapoor as guardian of Motichand Kapoor. The second lease, exhibit E/2, was executed on 29th of October 1946 and there was a clause therein that Rs. 2,300 would be payable as annual rent to Mrs. Ashalata Kapoor as guardian of Motichand Kapoor. Mrs. Kapoor gave evidence that she had been realising rent from the authorities on behalf of her son. Upon a review of the evidence it is apparent that the plaintiff has not established that the Morabadi garden was purchased benami by Mr. G.C Kapoor in the name of his minor son Motichand Kapoor.

The case with respect to the house on the Peace Road is somewhat different. This house was purchased from Rai Sahib Chunilal Bhagat for Rs. 15,000 by a sale deed, exhibit, J., dated 13th July 1942, executed in the names of Mr. G.C Kapoor and Mrs. Ashalata Kapoor. On behalf of the plaintiff it is pointed out that on 10th July 1942 a cheque, exhibit 3, was drawn by the partnership in favour of Gopichand Kapoor for Rs. 15,000. The cheque was credited to the account of Mr. G.C Kapoor and on the same day he withdrew the sum of Rs. 14,000 (vide entry in the current account ledger, exhibit F/3). The sale deed, exhibit J/3, was executed on the identical date by Rai Sahib Chunilal Bhagat. It is alleged for the plaintiff that Mr. G.C Kapoor had paid the entire consideration for the Sale but on behalf of the defendants it is asserted that Mrs. Kapoor had paid half the price of the house, viz., Rs. 7,500. Mrs. Kapoor deposed that she had paid to Mr. G.C Kapoor a sum of Rs. 8,000 about a month before the kebala was executed and that on the next day Mr. G.C Kapoor returned the balance of Rs. 500. On this point Mr. Khosla, D.W 1, has given evidence to corroborate the statement of Mrs. Ashalata Kapoor. But it is difficult to believe the evidence of Mrs. Kapoor on this part of the case since she has made contradictory statements. She asserted that before 1942 she had money in the Punjab National Bank at Calcutta and Allahabad, that she had withdrawn about Rs. 5,000 or Rs. 6,000, that she had, besides, a sum of, Rs. 8,000 or Rs. 9,000 with her in cash. But in her previous deposition in the execution case she stated that she never kept any money in any bank before going to Ranchi and that she “could not say what money she had and where from July 1942 to November 1942 as she did not remember the details”. In view of her conflicting statements, it is difficult to rely upon the evidence of Mrs. Ashalata Kapoor that she had paid a sum of Rs. 7,500 to Mr. G.C Kapoor for purchase of half share of the house in dispute.

Upon the evidence adduced it appears highly probable that Mr. G.C Kapoor paid the entire cosideration money of Rs. 15,000 for the purchase of the house located on the Peace Road, Upon this finding it was argued for the appellant that the transaction must be held to be benami and that Mr. G.C Kapoor was really owner of the entire house purchased.

In support of his argument learned counsel cited Guran Ditto v. Ram Ditta in which there was a deposit by a Hindu of his own money in a bank in the joint names of himself and wife, and on the terms that it is to be payable to either of the survivor. It was held by the Judicial Committee that the deposit did not on the death of a Hindu constitute a gift by him to his wife but there was a resulting trust in his favour in the absence of proof of contrary intention since there was in India no presumption of an intended advancement in favour of a wife. But the material facts are different from those of the present case. There was no evidence to suggest that it was the intention of Teku Ram to make any advance in favour of his wife under the terms of the deposit note. It was suggested that one of the provisions in the will of Teku Ram was evidence of such an intention. But the Judicial Committee thought that no weight should be attached to this evidence. In the absence of any evidence as regards intention of Teku Ram, the Judicial Committee decided the question on the construction of the terms of the deposit note holding that there was a resulting trust in favour of the grantor who made the voluntary conveyance.

The general principle of equity, applicable both in England and in India, is that in the case of a voluntary conveyance of property by a grantor, without any declaration of trust, there is presumption of a resulting trust in favour of the grantor, unless it can be proved that an actual gift was intended. But the presumption may be rebutted in either of two ways. First it may be rebutted by another presumption of equity, a presumption arising from special relationship as of husband and wife, or father and child—that the transaction was intended as a gift “by way of advancement”. For instance, in English law a gift to a wife is presumed where money belonging to the husband is deposited at a bank in the name of a wife, or where a deposit is made in the joint names of both husband and wife. In India, the English law as to presumption of advancement has not been adopted [vide Gopeekrist v. Ganga Prasad and. Uzhur Ali v. Bibee Ultaf Fatima] In the second place the presumption of resulting trust may also be rebutted by parol of other evidence that the purchaser really wished to benefit those in whose names the conveyance of the legal estate was taken. In Fowkes v. Pascoe(3), a testatrix, both before and after she made her will, purchased sums of stock in the names of herself and the son of her daughter-in-law. By her will she gave the residue of her estate to her daughter-in-law for life and after her death to the son and the daughter, of the daughter-in-law. It was held by the Court of Appeal that, under the circumstances, the sums of stock so purchased were a gift to; the son of the daughter-in-law, and that in such a case the evidence of the son and his wife was admissible, and could not be disregarded as rebutting the presumption of a resulting trust; and that, coupled with the circumstances under which the stock was purchased, it was sufficient to rebut the presumption. At page 352 of the report Lord Justice Mellish, L.J states:

“There can be no doubt that the question in this case is a question of fact. It cannot be decided simply on the ground of legal presumption, because whatever effect is given to the evidence of Mr. Pascoe and his wife, their evidence is evidence to rebut the presumption, and therefore the. Court must consider whether the presumption is rebutted or not.

Now, the Master of the Rolls appears to have thought that because the presumption that it was a trust and not a gift must prevail if there were no evidence to rebut the presumption, therefore when, there was evidence to rebut the presumption he ought not to consider the probability or improbability of the circumstances of the case, and whether the presumption was really true or not, but ought to decide the case on the ground that the evidence of Pascoe and his wife taken alone was not satisfactory. But, in my opinion, when there is once evidence to rebut the presumption, the Court is put in the same position as a jury would be, and then we cannot give such influence to the presumption in point of law as to disregard the circumstances of the investment, and to say that neither the circumstances nor the evidence are sufficient to rebut the presumption.”

The same principle is enunciated in Standing v. Bowring, in which the plaintiff, a widow, in the year 1880, caused £6,000 Consols to be transferred into the joint names of herself and the Defendant, who was her godson. She did so with the express intention that the defendant, in the event of his surviving her, should have the Consols for his own benefit, but that she should have the dividends during her life; and she had previously been warned that if she made the transfer she could not revoke it. The first notice the defendant had of the transaction was a letter from the plaintiff's solicitors about the end of 1882 claiming to have the fund retransferred to the plaintiff. The Court of Appeal held that the legal title of the defendant as a joint tenant of the stock was complete, although he had not assented to the transfer until he was requested to join in retransferring the stock; that the legal title of a transferee of stock is complete without acceptance, and that a transfer of property to a person without his knowledge, if made in proper form, vests the property in him at once, subject to his right to repudiate it when informed of the transfer. It was further held that the plaintiff could not claim a re-transfer on equitable grounds, the evidence clearly shewing that she did not, when she made the transfer, intend to make the defendant a, mere trustee for her except as to the dividends, and that, therefore, the plaintiff was not entitled to have the stock re-transferred to her. At page 289 of the report Lord Lindley, L.J states: “The plaintiff in her statement of claim and in the court below rested her case on equitable grounds, and sought to establish a trust in her favour. But the only trust which was consistent with the evidence was a trust to pay her the income of the Consols for the joint lives of herself and the defendant. This trust was not in controversy, but is not sufficient for the plaintiff's purpose. No trust will suffice short of an absolute trust for herself. But it is impossible to impose such a trust on the defendant, when the evidence conclusively shews that she never intended to create any trust of the kind. Trusts are neither created nor implied by law to defeat the intentions of donors or settlors; they are created or implied or are held to result in favour of donors or settlors in order to carry out and give effect to their true intentions, expressed or implied. It appears to me there are no equitable as distinguished from legal grounds on which the plaintiff can obtain relief.”

The principle applies in India. For section 82 of the Indian Trusts Act recognises that money may have been contributed by another person towards the purchase with the intention of giving the beneficial interest to the person in whose name the purchase is made. In this context the relationship of husband and wife, between the person who contributes money and the person in whose name it is taken will be very important factor in determining whether the transaction was really meant for the benefit of the wife or not. Section 82 of the Act states:

[“Where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration far the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration.”]

In Sitamma v. Sitapatirao a wife had separate income of her own though the amount was not known, and certain properties were purchased in her name but it was impossible to connect any sale deed relating to the properties with a particular item of asset belonging to the wife. The husband had no intelligible motive for entering into any benami transaction. Even during the period when he was taking sale deeds in his wife's name in respect of the suit properties, he was entering into other transactions of sale and mortgage in his own name, thus showing that he had no reason at the time to make it appear that he had no properties of his own other than the ancestral properties. Upon this evidence it was held by Varadachariar and King, JJ. that the sale deeds relating to suit properties were not taken in the wife's name benami for husband. At page 10 the report states:

“The onus lies in the first instance on the defendant who pleads that these transactions are benami. The mere suspicion that the purchases might not have wholly been made with the lady's money will certainly not suffice to establish that the purchases were benami nor even the suspicion that moneys belonging to Jagannadha Rao, whether in a small measure, or a larger measure, must have also contributed to these purchases. Even in cases where there is positive evidence that money had been contributed by the husband and not by the wife, that circumstance is not conclusive in favour of the benami character of the transaction though it is an important criterion. It is true that in the Indian law the English rule as to presumption of advancement has not been adopted, but section 82. Trusts Act, as well as the observation of the Judicial Committee in Mosammat Bilas Kunwar v. Desraj Ranjit Singh (I.L.R 37 Allahabad 557) at pp. 564 and 565 recognise that money may have been contributed by another towards a purchase with the intention of giving a beneficial interest to the person in whose name the purchase is made. The relationship of husband and wife between the person who contributes the money and the person in whose name the sale is taken will be a very important factor in determining whether the transaction was really meant for the benefit of the wife or not.”

In support of the appeal Mr. B.C De relied upon Sahdeo Karan Singh v. Usman Ali Khan. But the material facts in that case were different. The question in that case was whether a purchase of property by defendants 1 and 2 in the name of their son was benami transaction or not. It was proved that defendants 1 and 2 had paid the entire purchase money but in addition there was important evidence to indicate that there was no intention on their part to transfer the beneficial interest. There was evidence, accepted by the High Court, that defendants 1 and 2 were financially in a bad state at the time the sale deed was executed and the transactions were carried out in the name of the son with a view to protect the property in case of attachment and sale occurring later on. There was a subsequent mortgage of the property in dispute by defendants 1 and 2 and in the document there was the important recital that the property had been purchased in the farzi name of the plaintiff. Upon the consideration of the evidence the High Court came to the conclusion that the plaintiff was benamidar and that he had wholly failed to prove that his parents intended to make a gift of the property to him. In the present case the material facts are wholly dissimilar. There is, in the first place, the important fact that the purchase of the house was made in the joint names of Mr. Kapoor and Mrs. Ashalata Kapoor. If the transaction was meant to be benami it appears improbable that Mr. Kapoor himself should have joined in the purchase. In the second place, there is evidence to indicate that at the material time Mr. Kapoor was in an affluent circumstance and there was no motive why he should enter into benami transaction. D.W 3 Kalicharan Poddar deposed that in the years 1942 and 1943 Mr. Kapoor owned a race-horse named Commenjula which ran in Tollygunge race. Budh Singh the plaintiff admitted in his evidence that Mr. Kapoor had repaid all the advances made by the partnership to the extent of Rs. 1,13,000 on or before R. 24th November 1942. The letter, exhibit D/1, also shows that Mr. Kapoor had made a donation of Rs. 5,005 to the War fund in the name of the Governor of Bihar. It is, therefore, impossible to suggest that Mr. Kapoor was involved in debt at the time or that there was any motive on his part for entering into benami transaction with a view to defeat or delay creditors.

Upon the circumstances proved in this case I am of opinion that the transaction of the purchase of the house was not benami and that Mr. Kapoor made the purchase for the advancement of his wife Mrs. Ashalata Kapoor.

This conclusion is supported by the ratio of the decision of the Judicial Committee in Pandit Shambhunath Shivpuri v. Pandit Pushkarnath in which a suit was brought for partition of the properties of a deceased Hindu, some of which were held jointly in the names of the deceased and individual relatives of his, and the question to be determined was whether the properties so held were for the advancement of each surviving relative and so to be excluded from the partible property. Lord Porter reiterated the rule previously laid down by the Judicial Committee in Guran Ditto v. Ram Ditta “the deposit by a Hindu of his money in a bank in the joint names of himself and his wife and on terms that it is payable to either or survivor does not on his death constitute a gift by him to his wife. There is a resulting trust in his favour in the absence of proof of a contrary intention, there being in India no presumption of an intended advancement in favour of a wife”. No plea of advancement was put forward by the defendant in his written statement but the contention was that the deceased had either made an out-and-out immediate gift or that there had been a donatio mortis causa. The High Court held that the contentions on behalf of the defendants had not been established. The Judicial Committee took the same view but proceeded to investigate the question of fact whether there was evidence of intention to advance. At page 201 Lord Porter states: “Their Lordships agree with the High Court in thinking, that the deceased would have been unlikely to choose destitute widows as joint holders of property if their names had been made use of as nominees only. In their view the number of the nominees, the transfers from one name to; another, the fact that some were purdana shin ladies, unable and unfit to deal direct with the banks, and that the absence at times of the male depositees in distant parts of India, all lead to the inference that the deposits were for advancement and that those whose names; were used were not merely nominees.” Like the High Court the Judicial Committee thought that the evidence and circumstances pointed to intention on the part of the deceased man to advance the joint holders.

For the reasons assigned I hold that the plaintiff has not established that the properties described in schedules A and B to the plaint really belonged to the defendant Mr. G.C Kapoor or that the two transactions of sale were benami or that the properties are liable to be attached and sold in execution of his decree: In; my opinion the decree of the learned Subordinate Judge is correct and this appeal must be dismissed with costs.

Appeal dismissed.

Sarjoo Prosad, J.:— I agree.

K.D