Sir Kumaraswami Sastriar, J. — The 4th and 5th defendants are the appellants,

The plaintiffs sued to recover Rs. 6,669-1?0 with costs and further interest, due on a deed of mortgage dated the 27th of January 1916, executed by the 1st defendant in his favour for Rs. 5,500, with interest at 9 per cent per annum. It is alleged that the amount was repayable, within the 27th of January 1917 and that, in default of payment, interest at 12 per cent was chargeable, from the date of the bond and was to be added to the principal, with annual rests.

The 1st defendant is the son of the 2nd defendant. The case for the plaintiff is that the mortgaged properties belonged to Murugayee, the mother of the 1st defendant and wife of the 2nd defendant, that Murugayee who died on the 7th of January 1916, executed a will dated the 2nd of April 1914, whereby she bequeathed the properties to the 1st defendant, that the 1st defendant became the exclusive owner of the properties, that in execution of the decree in O. S. No. 55 of 1914, on the file of the Tanjore Additional Sub-Court, which was passed against the 1st and 2nd defendants and the deceased Murugayee in favour of Dandapani Vaithiyan, the properties were brought to sale and purchased by the decree holder, on the 20th of January 1916, that with a view to set aside the sale, the 1st defendant who was the owner of the properties, which were sold, executed the plaint mortgage deed, that the amount advanced by the plaintiff was deposited in Court by the 1st defendant, towards the amount due, under the decree and the Court sale was set aside on the 1st of February 1916 and that the money advanced on the suit mortgage thus satisfied the decree of Court, against the 2nd defendant also and went to set aside the court sale. The plaintiff states that the 2nd defendant has no interest in the mortgaged properties, that in case the 2nd defendant claims the mortgaged properties as joint properties, the mortgage is binding on him, as the 1st defendant was acting as the manager of the family and borrowed the money for preserving the estate and for satisfying the decree against the 2nd defendant, that in any event the 2nd defendant was bound in law to reimburse the plaintiff, to the extent to which he, the 2nd defendant, was benefited by the amount advanced for the mortgage and that he is liable to pay the plaintiff half the amount deposited in O. S. No. 55 of 1914, as the decree was personally against the 2nd defendant and his wife Murugayee and against the family properties of the 1st defendant.

The 3rd defendant was made a party, as he is a subsequent purchaser from the 1st defendant. Defendants 4 to 8 were made parties as mortgagees and purchasers from the 2nd defendant. Defendants 9 and 10 were made parties as they are sisters of the 1st defendant and live in the first item of the mortgaged properties with the plaintiff's permission.

The 1st defendant filed a written statement admitting the plaintiff's claim and the allegations in the plaint.

The 2nd defendant filed a written statement denying that the properties belonged to his wife, Murugayee, and denying her right to dispose of the properties by will. He states that she had no funds to purchase the properties that he went to the Transvaal, stayed there for several years, earned money and remitted money by post and brought money with him whenever he came to India, that the properties were purchased with his own funds, benami in the name of his wife and were his exclusive properties and that the plaintiff was well aware that the properties stood in Murugayi's name only benami and that he was the real owner. He admits that a decree was passed in O. S. No. 55 of 1914, on the file of the Additional Sub-Court, Tanjore, against himself, his wife Murugayi and his son, the 1st defendant and the suit properties wore brought to sale and that a sum of Rs. 4203-1-4 was paid, for setting aside the sale. He states that in any event there was no consideration for the suit mortgage, to the extent of Rs. 1,500. He denies that the properties are the joint properties of himself and his son and states that he is the exclusive owner of the properties and has been managing the same He denies that he is bound by the mortgage as the 1st defendant was only a volunteer and paid the money, to set aside the sale, alleging title hostile to the real owner. He states that he sold items 2 to 18 for a proper consideration to the 6th defendant, that the 4th defendant purchased those items from the 6th defendant and that the first item was mortgaged by him to the 6th defendant, who assigned the mortgage to the 5th defendant. He attacks the sale of the suit properties to the 3rd defendant, by the 1st defendant, as fraudulent.

The 3rd defendant filed a written statement, pleading that as he is not in possession of the suit properties that he has not paid the amount due on the mortgage to the plaintiff and that he should not be made liable for costs.

Defendants 4 and 5 adopt the written statement of the 2nd defendant.

The 6th defendant died pending suit and the 11th and 12th defendants were added, as his legal representatives. The 11th defendant filed a written statement, stating that he is an unnecessary party to the suit, that he is not the legal representative of the 6th defendant and is not in possession of any assets, that Lakshmanan Chetti, the 12th defendant, is the legal representative of the 6th defendant, that the 6th defendant died even before the suit and that the suit is not maintainable against him.

The Subordinate Judge, while disbelieving the case that the deceased Murugayi had funds of her own and that the suit properties were purchased out of such funds, held that the 2nd defendant her husband, purchased the properties with his own funds, but for the benefit of his wife, and” not benami in her name, that there was nothing to show that the plaintiff was aware that Murugayi was a benamidar and that the 2nd defendant was estopped from setting up the rights of a real owner against the plaintiff. He also held that, apart from any question of the purchase being benami or of estoppel, the mortgage was enforceable against the 2nd defendant on the principle of salvage lien and passed the usual mortgage decree in favour of the plaintiff as prayed.

Against this decree, the 4th and 5th defendants appeal. Their contention is that the evidence shows clearly that the properties were purchased by the 2nd defendant in the name of his wife Murugayi, that the plaintiff was fully aware of the benami nature of the purchase, that the 1st defendant executed the mortgage alleging title hostile to the 2nd defendant, his father, and claiming the properties mortgaged as his absolute properties vested in him as legatee under the will of his mother, Murugayi, who was the absolute owner and that even though a portion of the mortgage money went to set aside the Court sale, the mortgage would not bind the 2nd defendant or his transferees the 4th and 5th defendants, as the suit mortgage was executed by the 1st defendant, alleging title hostile to the 2nd defendant and without his consent.

The main questions for determination are whether the purchase of the suit properties by the 2nd defendant was benami in the name of his wife Murugayi, whether the plaintiff had notice of the benami nature of the transaction, whether the mortgage is binding on the 2nd and 4th and 5th defendants to the extent to which the mortgage amount went to discharge the amount of the decree in execution of which the properties were sold and whether if the mortgage is not binding, plaintiff is entitled to a charge to that extent.

It is admitted that the 2nd defendant was not possessed of any ancestral properties. The evidence shows that he was barber by caste and went to South Africa at least on three occasions. He made money there and either brought money when he visited India or sent money from South Africa to India. The properties purchased by him consisted of 13¾th cawnies, excepting three fourths of a cawny which he purchased in the names of himself and another wife of his, Meenakshi, the remaining lands were purchased in the name of Murugayi.

The case for the plaintiff and the 1st defendant is that Murugayi got monies from her mother; but the evidence which is unreliable has been rightly discredited by the Subordinate Judge, He finds, and I think, rightly on the evidence that the consideration for all the purchases came from the 2nd defendant and that the monies were brought and sent by him from the Transvaal.

Ex. M is a sale-deed dated the 18th of September 1891. It is for 10 cawnies and the price was Rs. 2,205. The plaintiff's fourth witness, Subbayya Pandithan, in his cross examination states that the 2nd defendant returned from Transvaal in Chithrai (April May) of the year Khara (1891), and that he was present when the lands were purchased under Ex. M. The 2nd defendant states that he went to Natal stayed there for 12 years that he opened a barber's shop and then started a Railway hotel and purchased and sold articles on commission, that he returned to India in Chithrai of Khara year, that he was earning 50 to 60 sovereigns a month, that on his return to India he brought with him 500 or 600 sovereigns, jewels and a draft for £130, that he purchased 10 cawnies for Rs. 2,000 and odd, that a prior mortgage in favour of one Chakravarthi Aiyangar was discharged out of the purchase money and that, as he had the intention to go back to Natal, he took the sale-deed in his wife's name so that she may pay the kist and manage the lands in his absence. He states that after he returned to India in the year Khara, he stayed here for about six years and during that period he purchased all these lands to the extent of 13¾ cawnies, that after six years he went to South Africa and stayed there for five years and came back to India afterwards, that he remained in India for 3 years and went back again, that he stayed at the Diamond fields of Kimberley for four years and finally returned to India, that when he returned to India for the first time in Khara he was accompanied by his second wife Vieenakshi, and six sons and one daughter by her, that she and his wife Murugayi stayed in the same house with him during his stay in India and that with the exception of the three-fourths of a cawny purchased in the joint names of himself and Meenakshi all the other properties were purchased in the name of Murugayi. Defendant's second witness Subramania Aiyar who was a vakil's clerk states that his master Chakravarthy Aiyangar had a mortgage of the land purchased under Ex. M. that the 2nd defendant was present and negotiated the purchase of the land, that he brought the money and gave it into Murugayi's hands to be paid over the vendors at the time of the registration and that the mortgage (Ex. 23) in favour of his master was redeemed. He states in cross examination that the 2nd defendant told him that he brought money from Natal and wanted to purchase lands and that, as he was going to Africa, the sale deed was to be taken in his wife's name to enable her to manage the lands. Defendant's third witness Pavadai Padayachi who is one of the vendors under Ex. 17 states that the 2nd defendant concluded the bargain, that he produced a sum of Rs. 2,205 which was paid to the vendors at the Registrar's office and that with that sum Ex. 23 in favour of Chakravarthy Aiyangar was redeemed and the mortgage bond was handed over. There can be little doubt from the evidence that the whole of the consideration for Ex. M was paid by the 2nd defendant with monies which he brought from Natal.

The next document is Ex. O, a mortgage dated the 16th of March, 1892, for Rs. 700 executed by Murugayi. The document states that the money was borrowed to purchase lands and make jewels for the daughter of her co-wife Meenakshi, who had been given in marriage to her brother Subbaraya Pariyari. This document is attested by her husband, the 2nd defendant. The endorsement on this document shows that the money was received on the 13th and the 14th of February, 1893, through one Narayana Nattan who, according to the evidence of D. W. 1 is the person to whom the 2nd defendant was remitting monies.

Ex. 21 is a sale-deed dated the 21st of April 1892, in favour of the 2nd defendant and his wife Meenakshi for Rs. 212-8-0 and comprises items 2, 3, and 4 of the plaint schedule.

Ex. B dated the 3rd of August 1892 is a lease in favour of Murugayi of the lands purchased under Ex. M and 21, and the fact that the lands purchased both under Exs. M and 21 were covered by the lease supports the evidence of the plaintiff that lands purchased under Ex. M were purchased by the 2nd defendant benami in the name of his wife because he wanted to go away to South Africa and wanted the lands to be managed by his wife.

The evidence shows that Meenakshi, the second wife, was the wife, who was going with the 2nd defendant to South Africa, while Murugayi was the wife, who was permanently residing in India and hence the necessity for Exs. M and 21 being taken in the name of Murugayi.

Ex, J dated the 17th of July 1893, is a sale deed in the name of Murugayi of a portion of item 1, which is the house in which Murugayi, her husband the 2nd defendant, her co-wife, and her son and others were living. The sale is in respect of house, grounds, and thottam for Rs. 650.

Ex. L, dated the 8th of March 1900, is a sale deed, in favour of Murugayi, in respect of house and ground for Rs. 200.

Item 1, in the plaint schedule, consisted of the two portions purchased under Exs. J and L. Evidently after the purchase, these items were improved and added to and were converted into one dwelling house, in which admittedly all the parties had been living. Plaintiff's 7th witness Subbarama Aiyar states that the house, which was built 20 years ago, at a cost of Rs. 3,000, will now be worth Rs. 4,000 or Rs. 5000.

Ex. O, dated the 21st of July, 1896, is a mortgage for Rs. 100 executed by Murugayi. The money is alleged to have been borrowed for her family expenses. The first attesting witness is her husband, the 2nd defendant. This was discharged on the 14th of May, 1898.

Ex. N, dated the 22nd of July, 1896 is a sale deed, in favour of Murugayi for Rs. 1,500. The 2nd defendant in his evidence states that he and his wife raised the purchase money, by mortgaging the property to the vendor himself. He states that he borrowed money at Natal from his brother-in-law Sabhapathi Pandithan and sent it to Narayana Nattar and the mortgage was discharged. Plaintiff's fourth witness Subbaraya Pandithan corroborates the 2nd defendant, when he states that the 2nd defendant borrowed monies from Sabhapathi Pandithin and that Sabhapathi Pandithan got a decree against the 2nd defendant, though he states that he does not know for what purpose the money was borrowed by the 2nd defendant.

Ex K 1 is a deed of mortgage dated the 21st of March, 1900, for Rs. 2,500 executed by Murugayi, in favour of Narayana Nattar. It recites that a sum of Rs. 2,500 was then due to the mortgagee and that the properties, which were mentioned in the mortgage deed and which the mortgagor says were purchased by her from Krishnaswami Padayachi and others were mortgaged. This deed is attested by Murugayi's husband, the 2nd defendant.

It appears from the mortgage Ex. 12, dated the 7th of September 1912, executed by the 2nd defendant and his wife Murugayi, in favour of one Sundarappa Ayyar, that a sum of Rs. 4,000 was borrowed to discharge the principal and interest, due under the mortgage deed, Ex. K as appears from the endorsement on Ex. K 1.

Ex. D, is a deed of hypothecation, dated the 19th of July 1900, for Rs. 300, executed by Murugayi. It recites hat the money was borrowed, for the purpose of building a house. This is again attested by her husband, the 2nd defendant and it appears from the endorsement thereon dated the 30th of December 1905, that the principal and interest, due on the bond, were received from Narayana Nattan, to whom the money was sent by the 2nd defendant, so that it is clear that this deed was discharged by the 2nd defendant.

Ex. R. 1 is a mortgage deed, dated the 6th of March 1901, for Rs. 2,890 executed, by Murugayi to one Thangasami Dikshadar. It recites that out of the consideration, a sum of Rs. 1840 was paid, in discharge of a decree, passed by the District Munsif's Court of Chidambaram in respect of a temporary loan, borrowed by her husband, for purchasing some lands, that a sum of Rs. 530 was utilised, for paying off a debt, on pledge of jewels and that a sum of Rs. 500 was given to a temple, for the purpose of lighting a lamp and for charity, The deed also recites that there was a debt of Rs. 2,500 due to Narayana Nattan and two sums of Rs. 200 and Rs. 300 due to others. It winds up by saying that Murugayi and her husband have solemnly assured the mortgagee, about the above debts and that she executed the deed and got her husband to attest it. It is attested by 2nd defendant.

Ex. F, dated the 21st of October 1902 is a sale certificate in respect of a house site and house, which were purchased for Rs. 109, in a Court sale, on the 20th of November 1899. The property is a very small one and is said to be 12 ft. b 48 ft. Subsequently, the house, in which the parties were living, was built on the site. Exs. J, L and F refer to the site, on which the house was built.

Ex. G, dated the 18th of December 1902, is a rental agreement, in respect of the property so purchased.

Ex. E, dated the 1st of September 1908, is a usufructuary mortgage for Rs. 100, executed by Murugayi to one Doraiswami Pandithan. It recites that the amount was borrowed for domestic purposes and is attested by the 2nd defendant. The endorsement on the deed shows that it was discharged on the 28th of February 1911.

Ex. R, dated the 25th of July 1912, is a release deed, in favour of Murugayi, by the sons of Thangasami Dikshadar, the mortgagee under Ex. R 1. It refers to Ex. R. 1 and states that the mortgagee under Ex. R. 1 had received Rs. 3,990, through Narayana Nattan and the payment was endorsed on the deed and that the debt was discharged.

Ex. 12, dated the 7th of September 1912 is a deed of hypothecation for Rs. 4,000 executed by the 2nd defendant and Murugayi to one Sundarappier. It refers to the mortgage, Ex. K 1, in favour of Narayana Nattan and states that the amount was borrowed, for discharging the amount due under that deed, and another promissory note for Rs. 500 and for paying off certain miscellaneous debts, to the extent of Rs. 500, It is thus clear that Narayana Nattan's mortgage was discharged by Ex. 12.

Ex. 13, dated the 27th of January, 1913, is a sale of some items of property by the 2nd defendant and Murugayi for Rs. 2,389-4-0. The amount is said to have been required, for the purpose of meeting the family expenses, for the marriage of their son, for performing a vow at Thirupathi for improving and rebuilding a house and for redeeming jewels.

Ex. 14, is another sale deed, dated the 27th of January 1913, for Rs. 4,870 executed by the 2nd defendant and Murugayi. It says that the object of the sale was to discharge the debt due to Sundarappier under Ex. 12 and other debts. The recital is that the property was formerly purchased in the name of Murugayi, that it belongs to her and her husband and that it is in their enjoyment.

These are all the documents connected with the plaint properties, and it is clear that almost all the documents are executed by Murugayi and attested by her husband, the 2nd defendant, or executed by both the 2nd defendant and Murugayi. It is also clear from the evidence that, the money, for the purchase of the properties, was supplied by the 2nd defendant and that where they had to borrow money, either for purchasing properties or for family expenses, it was the 2nd defendant that discharged the debts. There is no evidence worth the name, to show that Murugayi was ever in a position either to purchase properties, or to pay the loans which were raised upon the properties.

Stress was laid on the fact that the documents recite that the properties belong to Murugayi; but where the purchase is benami and monies have to be raised, the person who lends money would require a recital as to ownership and it is the invariable practice in such cases to get the attestation of the real owner, so that if any question should arise subsequently, he may be bound by the attestation. It is the common belief that attestation by husbind or near relation of the executant is evidence of his consent and will bind him and parties hardly realise the effect of the recent decision of the Privy Council, that attestation does not by itself import consent to or knowledge of the contents of the document.

It is clear that the source of purchase money is a very important criterion for determining the real ownership. In Gopeekrist Gosain v. Gungapersaud Gosain(1), it was held by their Lordships of the Privy Council that the test is, as to who advanced the purchase money and that there is no presumption of advancement, where property is purchased by a father in the name of his son, In Moulvie Sayyud Uzhur Ali v. Mussumat Bebee Ultaf Fatima(2), it was held that the principle of benami, laid down in Gopeekrist Gosain v. Gungapersaud Goasain applies equally to Mahomedans and that there is no presumption of advancement by the name of the son being used as purchaser. Their Lordships at page 247 observe:—

“That the criterion of these cases in India is to consider from what source the purchase money comes; that the presumption is that a purchase made with the money of A, in the name of B, is for the benefit of A, and that from the purchase by a father, whether Mahomedan or Hindu, in the name of his son, you are not at liberty to draw the presumption, which the English Law would draw, of an advancement in favour of that son. Again the mere fact that this property was purchased, not in the sole name of the son, but in the name of the wife as well as of the son, affords a strong argument, in favour of the hypothesis, that it was a benami purchase, for there was no such community of interest between the wife and the son, as would render it probable, that they had been made joint owners of the property and the reason for putting two names rather than one into a trust applies almost as strongly in India, as it would in this country,”

There being no presumption of advancement, the onus lies on the respondents to show that in purchasing the properties in the name of Murugayi, the 2nd defendant intended that it should be for her benefit. As I have already pointed out, out of the 13¾ cawnies, only three-fourths of a cawny was purchased by the 2nd defendant in the name of himself and his second wife Meenakshi and the balance of 13 cawnies were purchased in the name of his first wife Murugayi. He was thus practically without any property, and this circumstance, I think, strongly militates against the view, that the purchase was for her benefit. It is hardly likely that a man, in the position of the 2nd defendant, would have denuded himself of all his properties, with the idea of benefiting his first wife, at the expense of himself, his second wife, his first wife's son and his second wife's children. I may, in this connection, refer to the observations of their Lordships of the Privy Council in Kerwick v. Kerwick. After noting the fact that all the properties were in the name of the wife, their Lordships observe:—

“If he had been possessed of an uncontrolable passion to bestow upon his wife beneficially every fragment of property he could acquire, to leave himself with nothing to live upon, but his salary and at the same time he burdened with debt and his children being absolutely unprovided for, he could not have gratified that passion more fully, than he apparently did, if his wife's case be true.”

Their Lordships think that it is impossible to draw a presumption of advancement, where almost all the property was purchased in the name of the wife. This is the view taken in cases between Englishmen, where the presumption of advancement prevails and it applies a fortiori to cases of Hindus, where there is no such presumption.

I find it difficult to agree with the Subordinate Judge, when he states that the suit properties were purchased by the 2nd defendant for the benefit of his wife and I have no hesitation in coming to the conclusion that the properties were purchased by the 2nd defendant benami in the name of his wife and that she had no interest in them.

On the 13th March, 1913, the 2nd defendant and his wife Murugayi executed a promissory note (Ex. 8), for Rs. 600, in favour of Sundarappa Iyer. The consideration is said to have been received, for the purpose of paying the amount of the absolute sale deed, obtained on the 12th of March, 1913, from one Velayudha Mudali, in favour of Murugayi and for domestic purposes. Another promissory note Ex, 8 (a), dated the 7th of April, 1913, was executed by the 2nd defendant and his wife for Rs. 1,000, in favour of Sundaram Aiyar, The object is said to be, for paying the amount of the sale deed, got on the 3rd of April, 1913, from one Kandasami Mudaliar, in favour of Murugayi and for the purpose of meeting certain repairing charges.

The 3rd defendant in this suit is the son of Sundarappa Iyer and he was appointed by the plaintiff's father as guardian of plaintiff and executor of his will. The 3rd defendant's father Sundarappa Iyer filed O. S. No. 184 of 1914, on the file of the District Munsif's Court of Chidambaram, on Exs. 8 and 8 (a), praying for a personal decree against the 2nd defendant and Murugayi and against the 1st defendant to the extent of the family properties; and he got an attachment before judgment of the properties now in dispute.

The 2nd defendant and his wife Murugayi executed a promissory note for Rs. 3,434, on the 7th of October 1911, in favour of one Dandapani Vandiar, who filed O. S. No. 48 of 1914, on the file of the Subordinate Judge of Mayavaram, which was transferred to the file of the Temporary Subordinate Judge of Tanjore and numbered there as O. S. No. 55 of 1914, to recover Rs. 4,439-9-0, the principal and interest due under the promissory note. He prayed for a personal decree against Murugayi and her husband the 2nd defendant herein and the 1st defendant their son was made a party in order to bind the joint family properties. He applied for attachment before judgment. A decree (Ex. P) was passed on the 22nd of February 1915, for Rs. 4,271-2-0 with costs and further interest, against the 2nd defendant herein and Murugayi personally and against the 1st defendant to the extent of the joint family properties. Execution was applied for, by Dandapani Vandiar and the sale of the properties was fixed for the 20th of January 1916. The 2nd defendant herein, who was the 1st defendant in that suit, filed an application (Ex. Z), under O, 21 R. 83, Civil Procedure Code, praying for a postponement of the same for six months and for leave to effect a private sale or to mortgage the properties. It was alleged in the affidavit (Ex. Z-1) that his wife was dead, that the properties were purchased by him benami in her name, that there were misunderstandings between himself and his wife and that he was therefore not able to raise money to discharge the debts.

On the 20th of January 1916, the petition was dismissed, as it was not pressed. The properties were, brought to sale and sold. The 1st defendant in this suit applied under O. 21, R. 89, Civil Procedure Code, to set aside the sale and paid into Court a sum of Rs. 4,256-15-4, being the balance of the amount due under the decree and the five per cent of the purchase money payable to the purchaser. The application is Ex. AA. The affidavit in support of the application is Ex. AA-1. It was filed by the 1st defendant herein, who was the 3rd defendant in that suit, and he stated that his mother, the 2nd defendant in that suit died; that the properties which belonged to him and his mother were sold in Court-auction, on the 20th of January, 1916 and the plaintiff himself purchased the moveable and immoveable properties and that he had paid the balance due and the five per cent of the purchase money and wanted the sale to be set aside. The 2nd defendant herein, after his application (Ex. Z) was dismissed, did nothing. The amount paid into Court to set aside the sale under O. 21, R. 89, was borrowed from the plaintiff in this suit under Ex. A, executed by the 1st defendant herein. The mortgage deed recites that the properties belonged to his mother Murugayi, who purchased and enjoyed them, that he is now in possession and enjoyment of the same and that he has borrowed Rs. 5,500 for the purpose of getting back the properties, which had been sold in execution of Dandapani Pandithan's decree. The Subordinate Judge finds that out of the mortgage money, borrowed from the plaintiff, a sum of Rs. 4,629-11-4 was paid into Court, to get back the properties, as appears from Ex. AA-3, and states that the properties which were worth Rs. 12,000 or Rs. 13,000 were sold in execution of Panda pani's decree and were purchased by Dandapani himself, for less than one-fourth of their market value.

Sundarappa Iyer applies to execute his decree and to bring the properties to sale, which had already been sold in execution of Dandapani's decree. The 1st defendant herein filed Ex. 9, objecting to the sale in execution and stated that the immoveable properties under attachment belonged to his mother, that he got them from her by a will, that the 2nd defendant herein, who was the 1st defendant in that suit, had no right to those properties that they had been sold in execution of the decree in O. S. No. 55 of 1914, that he borrowed Rs. 5,500 and executed a mortgage of the properties on the 27th of January 1916, that out of the sum borrowed Rs. 4,629-11-4 was paid into Court, to set aside that sale and that the properties should be sold subject to that mortgage. Ex. 3 is the sale proclamation in O. S. No. 184 of 1914, and it states that there was a mortgage over the properties dated the 27th of January, 1916, for Rs. 5,500 in favour of Krishnaswami Aiyar, but that it was subsequent to the attachment before judgment. It appears from Ex. IV that on the 16th of September 1916, items 1 to 17 of the sale proclamation were sold to the plaintiff's vakil in that suit for Rs. 1,012. It appears from Ex. V that the 2nd defendant herein applied to adjourn the sale on the ground that he had arranged to raise money elsewhere, but the 3rd defendant therein who is the present 1st defendant was unwilling to join in the petition and the petition was dismissed and the properties were brought to sale.

On the 12th of October 1916, the present 2nd defendant agreed to sell the properties to Sevagan Chetti the deceased 6th defendant herein. Ex. 1(a), dated the 12th of October 1916, recites that the properties were purchased by him benami in the name of his wife Murugayi, that the properties was sold in execution of the decree, in O. S. No. 184 of 1914 and that he received Rs. 2,400 for the purpose of setting aside the sale. It appears from Ex. II that a sum of Rs. 2,348-0-2 was paid into Court and that the sale was set aside, on the 17th of October 1916.

The question therefore arises as to how far on these facts the mortgage in favour of the plaintiff is binding on the 5th and 6th defendants and the first question I have to consider is whether the plaintiff Krishnaswami Iyer is a bona fide mortgagee from the 1st defendant, without notice of the fact that the 1st defendant's mother was only a benamidar. The Subordinate Judge finds that the will Ex. Y, dated the 2nd of April, 1914 executed by the 1st defendant's mother was genuine and valid; so that, if the properties belonged to Murugayi, or if the plaintiff had advanced the money bona fide, without knowledge that Murugayi was only a benamidar, he would be protected under Sect. 41 of the Transfer of Property Act. I have already given my reasons for holding that Murugayi was only a benamidar.

The next question is whether the plaintiff is a bona fide lender without notice. I do not think that the plaintiff is protected under Sect. 41 of the Transfer of Property Act. I think the evidence shows that the plaintiff must have been aware of the fact that Murugayi could not be the real owner of the properties. Murugayi, her husband and their children were all living in the house, which is one of the items mortgaged to him. The plaintiff in his evidence admits that he knows the 1st and 2nd defendants, that the 1st defendant is the son of the 2nd defendant, and that the 2nd defendant had money dealings with him. He admits that in 1914, he got a transfer of the decree in O. S. No. 98 of 1910, on the file of the Shiyali District Munsif's Court in the 2nd defendant's favour, which had been attached by Dandapani in O. S. No. 55 of 1914. Though he says that he does not remember it, it is clear from Ex. XXII (a) that he filed a claim and that it was dismissed. He says that when he took Ex. A, though he knew of the existence of the 2nd defendant, he did not make any enquiries of him. He also states that he knew that the 3rd defendant's father had attached the properties, at the time of his mortgage Ex. A and that he saw all the deeds of sale and mortgage, in respect of the properties, at the time of the mortgage Ex. A. It is therefore clear that the fact that some of the deeds were jointly executed by Murugayi and her husband the 2nd defendant and that her husband attested almost all the documents must have put the plaintiff on notice; and the absence of any enquiry by him from the 2nd defendant, who was living in one of the houses mortgaged, shows that the plaintiff had constructive notice, because if he had pursued the matter further and made enquiries from the 2nd defendant, he would have been told all the facts. It is also clear that he had notice both of Dandapani's suit and of Sundarappa Iyer's. He says that he paid the money under Ex. A, to set aside the court-sale. If he had made enquiries, he would have known that there were disputes between the father and the son, as regards the title to the properties. It is clear from the evidence of the plaintiff's 7th witness Subbarama Iyer, who admittedly negotiated the mortgage Ex. A that he must have known that the 2nd defendant was asserting that he was the real owner. He admits that he was the writer of Ex. XV, dated the 27th of January 1914, where it is distinctly stated that the properties mortgaged were purchased by the 2nd defendant benami, in the name of his wife, Murugayi. Plaintiff's 8th witness Ramachandra Iyer (3rd defendant), admits that he was executor appointed under the plaintiff's father's will and that he knew the 2nd defendant from 1912. He states that he did not know Murugayi before Ex. XII and how she acquired the properties. I find it difficult on the evidence to hold that the plaintiff, when he lent the money for the purpose of paying it into Court to set aside the sale in execution of Dandapani's decree, was ignorant of all that had happened before and lent the money bona fide, believing that Murugayi was the real owner and that her husband the 2nd defendant had or claimed no interest in the properties.

The question remains as to the relief, if any, to which the plaintiff is entitled on these facts. There can be little doubt on the evidence that the properties mortgaged were sold in execution of a decree to which the 1st and 2nd defendants were parties and that but for the act of the 1st defendant in raising money from the plaintiff and setting aside the court-sale under O. 21, R. 89, Civil Procedure Code, the properties would have been lost to the 2nd defendant, who on the evidence is the real owner of the properties. The 2nd defendant wanted an order postponing the sale and permission to raise monies to pay off the decree amount; but his application was dismissed as the 1st defendant did not concur. He then did nothing and the 1st defendant claiming to be the real owner of the properties applied to set aside the sale, under O. 21, R. 89, Civil Procedure Code and paid the amount due under the decree into Court. The result has been that not only has the liability of the 2nd defendant under the decree been satisfied, but the 2nd defendant and the transferees from him are now in a position to put forward their claim to the properties, on the ground that Murugayi the mother of the 1st defendant was only a benaraidar.

Reliance was placed by the respondents' vakil on Sects. 69 and 70 of the Contract Act; but these sections would not apply. It is clear that the payment into Court under O. 21, R. 89 by the 1st defendant was not made for the 2nd defendant but was made in the assertion of a hostile title and for the protection of the interests of the person making the payment. The mere fact that the 2nd defendant was benefitted will not be sufficient.

In Ram Tuhul Singh v. Biseswar Lall Sahoo their Lordships of the Privy Council observe:—

“The question is not to be determined by nice considerations of what may be fair or proper, according to the highest morality. To support such a suit there must be an obligation, express or implied to repay. It is well settled that there is no such obligation, in the case of a voluntary payment by A of B's debt. Still less will the action lie when the money has been paid, against the will of the party for whose use it is supposed to have been paid.”

It is thus clear that where a person makes a payment in the assertion of a hostile title and for the protection of his own interests in order to save property which he claims to be his from passing out of his hands, the mere fact that the other party is benefitted will not, if it is found that the person making the payment has no title, entitle him to be reimbursed. In Veeraraghava Iyer v. Lakshmana Iyer, it was held that the interest contemplated by Sect. 69 of the Indian Contract Act is an existing interest which the payment is intended to protect and not an interest which is created by the payment itself, that Sect. 70 of the Indian Contract Act has no application where the person making the payment makes it, for himself and not for the person against whom the claim for reimbursement is made, and that Sect. 101 of the Transfer of Property Act does not create a security where there was no security before. In Sri Sri Sri Chandra Deo v. Srinivasa Charlu(3), it was held that the test to bring the case under Sect. 70 of the Indian Contract Act is that a person should have in fact enjoyed the benefit by accepting or adopting without objecting to it and that it is not necessary that before the act is done by the other party, an option must have been given to the person sought to be made liable of accepting or declining the benefit before the benefit is given. All the authorities on the subject have been reviewed by the learned Judges. The scope of Sect, 70 was also considered in Gopala Iyengar v. Mummachi Reddiar. In that case, the plaintiff sued to recover monies paid by him for discharging encumbrances on certain properties purchased by him. The sale to the plaintiff was held not to be binding and was set aside against the defendants in the previous proceedings. Spencer, J., after a review of the authorities held that the plaintiff was entitled to recover, under Sects. 69 and 70 of the Indian Contract Act, monies paid by him for discharging encumbrances but that he was not entitled to a charge for the same. Devadoss, J., held that the plaintiff was not entitled to recover, as he was a mere speculating volunteer and as he was aware that the sale to him conveyed no title. I agree with the view taken by Spencer, J., but it will not help the plaintiff in the present case. Unless there is a charge in his favour, he would have no relief against the 5th and 6th defendants, who are purchasers from the 2nd defendant.

The 1st defendant may have a claim for contribution, as the decree was a joint decree; but this again will give him no charge.

If Sects. 69 and 70 do not apply, the mere fact that a person setting up a hostile title discharges encumbrances, which the other party was liable to discharge, would of itself give no right. In Ammani Ammal v. Ramaswami Naidu, it was held that where the guardian of a minor purports to sell the minor's property as the guardian's own property, the mere fact that part of the consideration for the sale went to discharge debts binding on the minor would not cast on him an obligation of repaying the debts found to be binding on him and discharged out of the purchase money. In Balwant Singh v. R. Clancy, it was held that where a person who was the manager of an undivided family mortgaged property, as if he was the full owner denying the right of the junior members of the family the alienee cannot claim to be paid back the portion of the mortgage money, which went to discharge the debts binding on the junior members of the family.

Reference has been made by Mr. Bhashyam Aiyangar for the respondents to Bhagwati Prasad v. Radha Kishen Sewak Pande, where their Lordships of the Privy Council held that where a person lent money to the nominal purchaser of a property, who was the agent of the real purchaser, in order to purchase the property, there was a charge on the purchase money so advanced. This decision was considered in Royzuddi Sheik v. Kali Nath Mookerjee and it was held that where a person, who held a tenure benami for another, executed a bond in favour of the landlord, who knew that a person executing the bond was only a benamidar, for arrears of rent would not affect the tenure and that the landlord suing on the bond was not entitled to claim a charge on the land under the Bengal Tenancy Act. The learned Judges distinguish this case, on the ground that there were no such equitable considerations in this case, as those that arose in Bhagwati Prasad v. Radha Kishen Sewak Pande.

The facts of the present case however can be distinguished from the cases I have referred to and in nay opinion entitle the plaintiff to a charge for the sum, which went to set aside the sale under O. 21, R. 89. The decree was a joint decree against the 1st and 2nd defendants and the deceased Murugayi. It was on a promissory note executed by the 2nd defendant the real owner and Murugayi the benamidar. The sale was a sale that will bind both the real owner and the benamidar, and if the sale was not set aside, the title of the real owner would have been extinguished, because the judgment-debtors were the benamidar and the real owner and whether the properties belonged to him or Murugayi, the purchaser would have got an absolutely good title.

It is clear that under the Civil Procedure Code of 1908, title vests in the auction purchaser from the moment of sale and that no confirmation is necessary. I need only refer to the decision of their Lordships of the Privy Council in Bhawani Kuwar v. Mathura Prasad Singh, where it was held that a sale in execution took effect from the actual date of the sale and not from the date of confirmation. A similar view was taken by a Full Bench of this Court in Venkata Chellamayya v. Neelakanta Girjee.

As therefore, title passed out of the real owner and the benamidar at the Court sale, the setting aside of that Court sale by the 1st defendant by payment of money into Court must be treated as a re-purchase by the 1st defendant and the mortgage to the plaintiff in so far as the consideration went, to set aside the sale, must be treated as money borrowed to re-purchase the properties. In Mallireddi Ayyareddi v. Adusmili Gopalakrishnayya, their Lordships of the Privy Council treated money paid by a puisne encumbrancer to discharge a mortgage and to stave off proceedings being taken to bring the mortgaged peoperties to sale as purchase money. It is also clear that a benamidar is an agent or trustee for the real owner. In Chowdhri Gur Narayan v. Sheo Lal Singh(4), it was held that a benamidar represents the real owner and so far as their relative legal position is concerned, is in the position of a mere trustee for him. Their Lordships of the Privy Council observe “As already observed, the benamidar has no beneficial interest in the property or business that stands in his name; he represents in fact the real owner, and so far as their relative legal position is concerned, he is a mere trustee for him”.

In the present case, the properties were sold in execution of the decree against the real owner and the benamidar and there was no misconduct or default by the benamidar which led to the sale.

It seems to me that where a person in the position of an agent or trustee repudiates his character and re-purchases properties in his own name it is open to the real owner to treat such repudiation as a nullity and to claim that the properties are held by the benamidar, in trust for him and the benamidar cannot treat the re-purchase as for his own benefit. But at the same time. I can find no authority for holding that the real owner can get the properties free from the obligation to pay the money that was the consideration for the re-purchase. Sect. 62 of the Trust Act, which deals with wrongful purchase by a trustee states that the beneficiary, if he wants to have the property so purchased declared subject to the trust or retransferred by the trustee, should repay the purchase money paid by the trustee with interest. Sect. 90, which deals with advantages gained by a qualified owner similarly makes the holding of the advantage to be for the benefit of the other party, but subject to repayment of expenses properly incurred. It is obvious that but for the raising of the money on the mortgage to the plaintiff, the properties would have been legally and effectively lost to the real owner. Applying therefore the law as regards purchase by agents or trustees of property, which the principal or cestui que trust can claim the advantage of, no case has been referred to us, which decides that because the repurchase was made by the agent or trustee in his own name, it passed free of any obligation created on the property, for the purpose of meeting the purchase money in cases, where the original sale was not brought about, by any default of the agent or trustee and would be binding on the cestui que trust.

Where property is sold in execution of a decree against the real owner and the benamidar re-purchases the property or raises money for the purpose of setting aside the sale, it seems to me to be contrary to all principles of equity and justice to hold that the real owner who took no steps to discharge the decree and who allowed the property to be sold could step in and claim the property free from any obligations to repay the money borrowed by the benamidar for the purpose of setting aside the sale. In the present case, it is clear that the sale proclamation in the decree to pay off which the 2nd defendant alienated the properties to the 5th and 6th defendants distinctly states that the Court sale was subject to the mortgage in favour of the plaintiff and any enquiry which the 5th and 6th defendants ought to have made would have shown that the mortgage to the plaintiff was to set aside the sale under O. 21, R. 89 in the other suit. But even if they had no notice, it is clear from Srinivasa Raghava Iyengar v. Ranganatha Iyengar, that where there is a charge on immoveable property, a purchaser of the immoveable property, although without notice of the charge, takes it only subject to the charge. I think that the plaintiff in the present case is entitled to a charge for Rs. 4,629-11-4. If he is entitled to a charge, it is clear that that charge would bind the alienees from the 2nd defendant. I think the plaintiff is entitled to a mortgage decree for Rs. 4,629-11-4 with costs and interest at six per cent from the date of the plaint to the date of payment. I would modify the decree of the Subordinate Judge accordingly. The parties will pay and receive proportionate costs throughout. Time for redemption 3 months from this date.

Spencer, J,—I agree with my learned brother that on the evidence, the 2nd defendant was the real owner of the properties, which were purchased with his money benami in the name of his wife Murugayi and of items 2, 3, and 4, which were purchased in the name of himself and his wife Meenakshi; and I think that the fact that the purchases in Murugayi's name were not of one or two items, but of the greater part of 2nd defendant's acquisitions negatives the theory of advancement. [Compare Kerwick v. Kerwick].

I do not find any justification for the learned Subordinate Judge's opinion that the 2nd defendant grossly exaggerated his earnings, in South Africa, when he spoke of them as amounting to £ 50 or £ 60 a month. He ran a shaving saloon and opened a Railway Hotel during the height of the gold boom in Natal and the Rand and may easily have found those ventures very remunerative.

The circumstance that he mortgaged some of the lands that he had purchased for the occasion of his daughter's marriage does not in the least disprove this story of the manner in which he earned the capital that he invested in land.

As regards the plea of estoppel, there is evidence that the 2nd defendant transferred a decree to plaintiff, Ex. XXII, and the plaintiff preferred a claim petition, when the decree was attached before judgment, upon Dandapani Vaithiyan's suit and it was dismissed [vide Ex. 22 (a)]. The plaintiff must have been aware of the circumstances of 2nd defendant's family, as it appears from his admissions in the witness-box and there can be no estoppel in favour of a party who knows the truth.

The mortgage suit must therefore fail, except in respect of a sum of Rs. 4,629-11-4, which went to pay off the sale of the properties in favour of Dandapani. The 1st defendant, as reversionary heir of 2nd defendant, was sufficiently interested in the preservation of the property, to be entitled to redeem it under Sect. 91 of the Transfer of Property Act, or to apply to have a Court sale set aside under O. 21x, R. 89, Civil Procedure Code. He was entitled to an equitable Hen, for the amount of the money so utilised: (see observations in Bhagwan Singh v. Nazhar Alt Khan, and Raja of Pittapuram v. Secretary of State and Sect. 32 of the Indian Trusts Act). He acted neither speculatively nor officiously in paying money that 2nd defendant was bound as well as himself to pay. The plaintiff having obtained an assignment of 1st defendant's rights, through the suit mortgage deed Ex. A, is entitled to recover the amount by way of charge on the redeemed properties: (vide Narayana Kutti Goundan v. Pechiammnal. There is no bar of limitation here, as there was in Gopala Iyengar v. Mummachi Reddiar, as the present suit has been instituted on 19th April, 1918, and the sale was set aside, on 31st January, 1916. I agree with the modification of lower Court's decree, proposed by my learned brother.

K. V. S.Decree modified..